KEYWORD: Guideline E; Guideline F
DIGEST: The Judge overlooked significant evidence in concluding that Applicant did not falsify
his time sheets While a Judge’s credibility determinations are entitled to deference, such a
determination does not relieve the Judge of the obligation to decide how much weight can
properly be give to an applicant’s testimony in light of the record evidence as a whole.  There is
no prohibition in the Directive against considering security-related conduct merely because a
previous employer chose not to pursue it in a particular forum.  Favorable decision reversed.
CASENO: 07-15281.a1
DATE: 06/16/2009
DATE: June 16, 2009
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-15281
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esq.
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On June 6, 2008, DOHA issued a statement of reasons advising Applicant of the basis
for that decision—security concerns raised under Guideline E (Personal Conduct) and Guideline F
(Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended
(Directive).  Applicant Counsel requested a hearing.  On February 27, 2009, after the hearing,
Administrative Judge Mary E. Henry granted Applicant’s request for a security clearance.
Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Department Counsel raises the following issues on appeal: whether the Judge’s finding that
Applicant did not falsify his time sheets is arbitrary, capricious, and contrary to the record evidence;
whether the Judge’s application of Personal Conduct Mitigating Conditions 17(c), (d), and (e) is
unsupported by the record evidence; and whether the Judge’s application of those mitigating
conditions and her whole-person analysis are unsustainable because they fail to consider a significant
aspect of the case.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following pertinent factual findings: Applicant served on active duty in
the U.S. Navy for over six years and then served in the reserves for over twenty years.  After
Applicant left active duty, he began working for the Navy as a civilian employee and later for a
Defense contractor.  Applicant was working on several projects at a time, including some of a highly
secret nature.  It was Applicant’s understanding that he could not reveal to his supervisors the work
he did on those projects or the amount of time he spent away from the office due to his work on
them.  Investigations were conducted on the accuracy of Applicant’s time and attendance records and
his use of his government credit card.  The investigations revealed discrepancies on Applicant’s time
sheets.  At the time in question, Applicant completed his time sheet at the end of the week and did
not keep daily records of his time spent in his office or away working on other projects.  Applicant
acknowledged that he did not maintain accurate records and may have included time spent at the gym
as work time.  Investigations also revealed that Applicant had used his government credit card for
personal expenses and for military reserve travel, although he only claimed reimbursement for the
items properly charged on the card.  In March 2003, after the investigations, Applicant’s agency
issued a notice of his proposed removal.  Instead, Applicant reached an agreement with the
government under which he agreed to reimburse the government in the amount of $3,827.70 for the
excess work time he had claimed, and was allowed to resign.  Applicant later began working for a
Department of Defense contractor.  Applicant submitted 14 letters of recommendation attesting to
his work skills and ethics.
B.  Discussion
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the same record.”
3
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).  In evaluating the Judge’s findings, we defer to the Judge’s
credibility determinations.  Directive ¶ E3.1.32.1.
Department Counsel’s appeal concerns the conclusions the Judge drew from the factual
findings.  In arguing the issues on appeal, Department Counsel contends that the Judge’s decision
does not take into account significant contrary record evidence.  The Board will address that
contention below.
Whether the Record Supports the Judge’s Ultimate Conclusions
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the 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).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presentsth
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors 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., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
Government Exhibit 15 has a document in which Applicant’s supervisor determined that 96 of the 1371
purchases on Applicant’s government credit card were for unauthorized personal expenses when Applicant was not on
official government travel.
4
Department Counsel argues that the Judge’s finding that Applicant had not falsified his time
sheets was arbitrary, capricious, and contrary to the record evidence.  Department Counsel’s
argument has merit.  There is substantial record evidence of the following:
Applicant was required to submit time sheets showing how many hours he
worked each workday.  Investigations into Applicant’s time sheets revealed
discrepancies between the number of hours Applicant claimed and the hours recorded
by the electronic badging system of his agency.  One investigation was performed by
Applicant’s supervisor and covered approximately three months in 2002.  The time
period was later expanded when Applicant refused to cooperate with the
investigation.  Later Applicant claimed that the badging system was inaccurate and
that he was attending classified meetings.  The badging system was tested and found
to be accurate, and Applicant provided no evidence (including travel records) of his
attendance at meetings away from his primary worksite.  Applicant’s supervisor
found that Applicant had claimed military leave on his time sheets, but had provided
no paperwork to justify it.  The supervisor determined that Applicant had claimed
157.21 hours which he had not worked.   1
The security director investigated the time sheet discrepancies as well.  He
found no substantiation for Applicant’s explanations of the discrepancies.  The
security director found three instances when Applicant claimed to be at work when
electronic records showed that Applicant was at the gym.  The security director found
that 218.26 hours were unaccounted for. 
Applicant’s agency department head reviewed the supervisor’s report and a
response by Applicant.  In his response,  Applicant provided several explanations for
the discrepancies—e.g., that he was working on secret projects the existence of which
he could not divulge to his supervisor, that he was on annual leave, that he was
claiming hours to make up for uncompensated overtime hours he had already
worked, that the electronic badging system was inaccurate, or that he was performing
reserve military duty.  The department head found Applicant’s explanations to be
incredible and /or unsubstantiated.  The supervisor and department head found that
Applicant’s conduct diminished his trustworthiness, and the department head
proposed Applicant’s removal from government service.
As Department Counsel points out, the Judge overlooked significant evidence in concluding
that Applicant did not falsify his time sheets.  There is substantial evidence that the three government
officials who were involved in investigating Applicant’s conduct found Applicant’s explanations for
the discrepancies on his time sheets to be incredible and/or unsubstantiated.  The Judge found
Directive, Personal Mitigating Condition 17(c):  “the offense is so minor, or so much time has passed, or the2
behavior is to infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast
doubt on the individual’s reliability, trustworthiness, or good judgment.”
Directive, Personal Mitigating Condition 17(d):  “the individual has acknowledged the behavior and obtained3
counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that
caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.” 
Directive, Personal mitigating Condition 17(e): “the individual has taken steps to reduce or eliminate4
vulnerability to exploitation, manipulation, or duress.” 
The Judge’s decision contains a lengthy footnote discussing her appraisal of  limitations on the Board’s review5
authority.  Decision at 7-8.  It is well-settled that the Board reviews decisions from the Hearing Office, as opposed to
the other way around.  See Directive, Enclosure 3, and ISCR Case No. 07-13696 at 3 (App. Bd. Feb. 9, 2009).
5
Applicant’s uncorroborated testimony to be credible and accepted it at face value.  While a Judge’s
credibility determinations are entitled to deference, such a determination does not relieve the Judge
of the obligation to decide how much weight can properly be given to an applicant’s testimony in
light of the record evidence as a whole.  See, e.g., ISCR Case No. 03-02486 at 7 (App. Bd. Aug. 31,
2004), citing Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985).  The record as a whole does
not support the Judge’s conclusions regarding Applicant’s recording of his time and attendance while
in government service. 
Department Counsel contends that the Judge’s application of Personal Conduct Mitigating
Conditions 17(c) , (d) , and (e)  is unsupported by record evidence and fails to consider a critical2 3 4
aspect of the case.  Department Counsel’s contention has merit.  The Judge referred to portions of
Applicant’s testimony and found that portions of Personal Conduct Mitigating Conditions 17 (c), (d),
and (e) partially apply in Applicant’s case.  The fact that there is some mitigating evidence does not
compel the Judge to grant a security clearance.  As the trier of fact, the Judge must weigh the
evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence,
or vice versa.  In deciding whether the Judge has weighed the evidence in a reasonable manner, the
Board considers whether the Judge exercised common sense and sound judgment and made findings
of fact and reached conclusions that reflect a reasonable, plausible interpretation of the record
evidence as a whole, taking into account whether there is record evidence that runs contrary to the
Judge’s findings and conclusions.  See, e.g., ISCR Case No. 02-02892 at 4 (App. Bd. Jun. 28, 2004) .5
In discussing mitigation as to Applicant’s time and attendance sheets, the Judge mentions only one
of the explanations Applicant gave for the discrepancies and accepts that explanation.  The record
indicates that another of Applicant’s explanations for discrepancies on his time sheets was that he
was on military leave.  Applicant was asked during the investigation process to provide
documentation for his military leave. Applicant provided evidence only of inactive duty training, for
which military leave is not authorized.  When the record was held open after the hearing for him to
provide documentation of his reserve duty, he failed to do so.  Moreover, the record evidence
indicates that responsible government officials found Applicant’s explanations to be incredible or
unsubstantiated and his conduct to have diminished his trustworthiness to the extent that the agency
proposed to remove him from his job, although he was eventually allowed to resign.
6
Department Counsel understands the Judge’s decision as saying that she is prohibited from
considering conduct that was not “charged” against Applicant by his previous employer.  To the
extent that such a reading is what the Judge intended, then Department Counsel is correct that the
Judge erred.  There is no prohibition in the Directive against considering security-related conduct
merely because a previous employer chose not to pursue it in a particular forum.   
Department Counsel also argues that the Judge’s whole-person analysis is unsustainable
because it fails to consider a critical aspect of the case.  Department Counsel’s argument has merit.
Department Counsel points to the Judge’s conclusion that the discrepancies on Applicant’s time
sheets were “the result of carelessness.”  Decision at 12.  Department Counsel contends that the
Judge failed to consider crucial record evidence to the contrary.  In discussing the issues of
falsification and mitigation above, the Board concluded that the Judge committed harmful error in
accepting Applicant’s explanations of his conduct at face value rather than weighing Applicant’s
testimony in light of the record evidence as a whole.  The same conclusion is applicable to the
Judge’s whole-person analysis.  The Judge’s favorable security clearance decision is not sustainable.
Order
The Judge’s decision granting Applicant a security clearance is REVERSED. 
Signed: Michael Y. Ra’anan        
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jeffrey D. Billett               
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin                 
Jean E. Smallin
Administrative Judge
Member, Appeal Board