KEYWORD: Guideline E
DIGEST: The Judge made sustainable findings that Applicant participated in a scheme to exploit
her status at a military exchange overseas to purchase exchange merchandise for foreign
nationals ineligible to make such purchases.  Adverse decision affirmed
CASENO: 08-05020.a1
DATE: 10/09/2009
DATE: October 9, 2009
In Re:
Applicant for Security Clearance
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ISCR Case No. 08-05020
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On March 30, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline E (Personal Conduct) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a decision on the written record.  On July 30, 2009, after considering the record,
Administrative Judge David M. White denied Applicant’s request for a security clearance.  Applicant
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 the Judge’s adverse decision is unfair because the Judge relied on an
investigative file prepared by persons who did not believe Applicant.  Applicant contends that
mitigating evidence was not considered, and questions were not posed of the investigative body
regarding possible weaknesses in the (unfavorable) theory of the case.  Applicant has not
demonstrated that the Judge’s decision is arbitrary, capricious or contrary to law.
The Judge found that Applicant participated in a scheme to exploit her status at a military
exchange overseas to purchase exchange merchandise for foreign nationals ineligible to make such
purchases.  He further found that her denials were not credible and constituted the deliberate
provision of false information to her employers and the investigators.  The Judge’s adverse findings
were based on substantial evidence and are sustainable.  (See Directive ¶E3.1.14 and ¶E3.1.32.1.)
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 evidence and the seriousness of the disqualifying conduct
and considered the possible application of relevant conditions and factors.  The Judge reasonably
explained why the mitigating evidence was insufficient to overcome the government’s security
concerns.  The Board does not review a case de novo. Furthermore,  Applicant has not provided a
cogent reason on appeal to disturb the Judge’s credibility determination.  Applicant’s argument on
appeal about questions the Judge could have asked is unpersuasive.  Applicant elected to have her
decision on the written record.  Thus, there was no mechanism for the Judge to ask questions.  Also,
the burden is on Applicant to make her case in mitigation, rebuttal or extenuation, not on the Judge
who is an impartial adjudicator.  (See Directive ¶E3.1.10, ¶E3.1.15 and¶ E3.1.25.)
3
After reviewing the record, the Board concludes that the Judge examined the relevant data
and articulated 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).  Therefore, the Judge’s ultimate unfavorable security clearance decision is
sustainable.
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan      
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D Billett     
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: William S. Fields     
William S. Fields
Administrative Judge
Member, Appeal Board