KEYWORD: Guideline F; Guideline E
DIGEST: The presence of some mitigating evidence does not alone compel the Judge to issue a
favorable trustworthiness determination.  The Judge had to weigh the evidence as a whole. 
Adverse decision affirmed.
CASENO: 07-11090.a1
DATE: 12/05/2008
DATE: December 5, 2008
In Re:
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Applicant for Public Trust Position
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ADP Case No. 07-11090
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
 The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a
trustworthiness designation.  On February 20, 2008, DOHA issued a statement of reasons (SOR)
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advising Applicant of the basis for that decision—trustworthiness concerns raised under Guideline
F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense
Directive 5220.6 (Jan. 2, 1992), as amended (Directive).  Applicant requested the case be decided
upon the written record.  On September 16, 2008, after considering the record, Administrative Judge
Henry Lazzaro denied Applicant’s request for a trustworthiness designation.  Applicant timely
appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary,
capricious, or contrary to law.
The Judge made the following relevant findings of fact: Of the debts alleged in the SOR,
Applicant admitted responsibility for four, totaling $15,301, although she provided proof of payment
for one of the debts, in the amount of $576.  Applicant claimed to have paid another of those debts,
amounting to $202, but did not provide proof of payment.  Applicant denied knowledge of five other
debts totaling $2,859.  Applicant also denied that she falsified her public trust position application
when she stated that she did not have any debts more than 180 days delinquent. 
Under Guideline F, the Judge found in Applicant’s favor as to the debt for which she
submitted proof of payment.  He found against Applicant as to the other debts.  Under Guideline E,
the Judge found that Applicant did not falsify her application, because she was unaware that she had
debts more than 180 days delinquent.  
In her appeal, Applicant restates some information which was in the record before the Judge.
She objects to the Judge’s conclusions and contends that the Judge should have found her financial
situation to be mitigated by her personal circumstances.  Applicant also submits new information
which was not in the record at the time the Judge made his trustworthiness determination.  This
includes recent steps Applicant has taken to improve her financial situation, e.g., contesting some
of the debts on her credit reports and paying a delinquent debt.  Because this information constitutes
new evidence, the Board cannot consider it.  Directive ¶ E3.1. 29.
The application of disqualifying and mitigating conditions does not turn simply on a finding
that one or more of them apply to the particular facts of a case.  Rather, their application requires the
exercise of sound discretion in light of the record evidence as a whole.  See, e.g., ADP Case No. 05-
12037 at 3 (App. Bd. May 10, 2007).  Thus, the presence of some mitigating evidence does not alone
compel the Judge to make a favorable trustworthiness determination.  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.  See, e.g., ISCR Case No. 06-12130 at 2 (App. Bd. Sep. 21,
2007).  Here, the Judge found some mitigation, but explained why it was insufficient to overcome
the government’s trustworthiness concerns.  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 that the Judge weighed the evidence or reached conclusions in a manner that is
arbitrary, capricious, or contrary to law.  Applicant chose to have her case decided on the written
record, with the result that her credibility could not be evaluated in the context of a hearing.  The
Judge’s decision is sustainable.
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Order
The Judge’s decision denying Applicant a trustworthiness designation is AFFIRMED.
Signed Jean e. Smallin    
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields    
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody     
James E. Moody
Administrative Judge
Member, Appeal Board