KEYWORD: Guideline J; Guideline H; Guideline E
DIGEST: There is a rebuttable presumption that a Judge is impartial and unbiased..  The issue is
not whether a party personally believes the Judge was biased or unfair, but whether the record
contains any indication that the Judge acted in a manner that would lead a reasonable person to
question the Judge’s impartiality.  Applicant has failed to meet his heavy burden of persuasion on
this issue.  Adverse decision affirmed.
CASENO: 07-00062.a1
DATE: 12/05/2008
DATE: December 5, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-00062
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On June 19, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline
H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive
5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On September 19,
2008, after the hearing, Administrative Judge Carol G. Ricciardello denied Applicant’s request for
a security clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge was biased.
Applicant argues that Judge was biased, essentially based upon the fact that the Judge did not
find Applicant’s favorable evidence sufficient to mitigate the government’s security concerns.  The
Board does not find this argument persuasive.
There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking
to rebut that presumption has a heavy burden of persuasion.  See, e.g., ISCR Case No. 02-08032 at
4 (App. Bd. May 14, 2004).  The issue is not whether Applicant personally believes the Judge was
biased or unfair, but whether the record contains any indication the Judge acted in a manner that
would lead a reasonable person to question the fairness and impartiality of the Judge.  See, e.g., ISCR
Case No. 06-09462 at 2 (App. Bd. Jul. 19, 2007).  Lack of partiality is not demonstrated merely
because the Judge made adverse findings or reached unfavorable conclusions.  Id.  Moreover, even
if an appealing party demonstrates error by the Judge, proof of such error, standing alone, does not
demonstrate the Judge was biased or prejudiced.  See, e.g., ISCR Case No. 04-03834 at 2 (App. Bd.
Jul. 2, 2007).
Applicant has not met the heavy burden of persuasion noted above, in that he fails to identify
anything in the record below that indicates or suggests a basis for a reasonable person to question
the fairness, impartiality, or professionalism of the Judge.  See, e.g., ISCR Case No. 03-00740 at 2
(App. Bd. Jun. 6, 2006).
A review of the record indicates that the Judge weighed the mitigating evidence offered by
Applicant against the length and seriousness of the disqualifying conduct and considered the possible
application of relevant conditions and factors.  She found in favor of Applicant under Guideline H
and with respect to several of the factual allegations under Guidelines J and E.  However, she
reasonably explained why the evidence which Applicant had presented in mitigation was insufficient
to overcome the government’s security concerns.  The Board does not review a case de novo.  The
favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision
is arbitrary, capricious, or contrary to law.  See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep.
4, 2007).  The Judge examined the relevant data and articulated a satisfactory explanation for her
decision, “including a ‘rational connection between the facts found and the choice made.’” Motor
Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general
standard is that a clearance may be granted only when ‘clearly consistent with the interests of the
national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  Accordingly, the
Judge’s adverse decision is sustainable.
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Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael D. Hipple    
Michael D. Hipple
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin     
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields   
William S. Fields
Administrative Judge
Member, Appeal Board