KEYWORD: Guideline J; Guideline F
DIGEST: Applicant has not identified any harmful error.  Adverse decision affirmed.
CASENO: 07-09048.a1
DATE: 12/15/2008
DATE: December 15, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-09048
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Judge’s favorable findings as to Guideline F are not at issue on appeal.1
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On March 10, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) and
Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992,
as amended) (Directive).  Applicant requested a hearing.  On September 29, 2008, after the hearing,
Administrative Judge Darlene Lokey-Anderson 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’s adverse security
clearance decision under Guideline J is arbitrary, capricious, or contrary to law.1
Applicant requests that the Judge’s adverse decision be reversed. In support of that request,
he gives a detailed explanation as to the circumstances surrounding his arrests and convictions for
the incidents set forth in the SOR.  He asserts that, to the extent there are variances between his
explanations and the police reports, his version of the events is the correct one.  He also notes that
he has engaged in no other criminal conduct, other than the conduct alleged in the SOR.  Applicant’s
argument does not demonstrate that the Judge’s decision is arbitrary, capricious, or contrary to law.
The Board’s review of a Judge’s findings is limited to determining if they are supported by
substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to
support such a conclusion in light of all the contrary evidence in the same record.  See Directive ¶
E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607,
620 (1966).
After reviewing the record, the Board concludes that the Judge’s findings are based on
substantial evidence, or constitute reasonable characterizations or inferences that could be drawn
from the record.  Applicant has not identified any harmful error likely to change the outcome of the
case.  Considering the record evidence as a whole, the Judge’s material findings of security concern
are sustainable.  See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007).
Once the government presents evidence raising security concerns, the burden shifts to the
applicant to establish mitigation.  Directive ¶ E3.1.15.  The presence of some mitigating evidence
does not alone compel the Judge to make a favorable clearance decision.  As the trier of fact, the
Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs
the unfavorable evidence, or vice versa.  An applicant’s disagreement with the Judge’s weighing of
the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to
demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary,
capricious, or contrary to law.  See, e.g., ISCR Case No. 07-05632 at 2 (App. Bd. May 13, 2008).
In that regard, the Judge noted the following: “In May 2008, just three months before the hearing, he completed2
his three years of summary probation for his second offense.  Given the serious nature of the offenses, and their recency,
more time is needed in rehabilitation and without incident, to prove that he will not revert to his old criminal ways.”
Decision at 6.
3
A review of the record indicates that the Judge weighed the mitigating evidence offered by
Applicant against the seriousness and recency of the disqualifying conduct and considered the
possible application of relevant conditions and factors.  Decision at 4-7.  She reasonably explained
why the evidence which the Applicant had presented in mitigation was insufficient to overcome the
government’s security concerns.  Id.   The Board does not review a case de novo.  The favorable2
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.
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: Willaim S. Fields          
William S. Fields
Administrative Judge
Member, Appeal Board