KEYWORD: Guideline E; Guideline J
DIGEST: Applicant’s arguments do not demonstrate that the Judge erred either by concluding
that Applicant’s drug-related arrests and conviction were not mitigated nor by finding that
Applicant had deliberately omitted that information.  Adverse decision affirmed
CASENO: 08-02087.a1
DATE: 04/01/2009
DATE: April 1, 2009
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-02087
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 August 20, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and
Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On February 17, 2009, after the hearing,
Administrative Judge Roger C. Wesley 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 clearance
decision is arbitrary, capricious or contrary to law.
Applicant argues that he had succeeded in mitigating the security concerns arising from his
drug-related arrests and convictions.  He also argues that the Judge erred in his conclusion that he
had deliberately omitted information concerning his criminal record and drug use, contending that
he had misunderstood the questions at issue.  Applicant has not demonstrated that the Judge’s
decision is arbitrary, capricious or contrary to law.
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 security 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.  See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7,
2007).  A party’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. 06-17409 at 3 (App. Bd. Oct. 12, 2007).
In this case, the Judge weighed the mitigating evidence offered by Applicant against the
seriousness of the disqualifying conduct and considered the possible application of relevant
conditions and factors.  He reasonably explained why the mitigating evidence was insufficient to
overcome the government’s security concerns.  The Board does not review a case de novo.  The
favorable 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).  After reviewing the record, the Board concludes that the Judge examined the relevant data
and articulated a satisfactory explanation for his 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).  Therefore, the Judge’s ultimate unfavorable security clearance decision is
sustainable.
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Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan     
Michael Y. Ra’anan
Administrative Judge
Chairman, 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