KEYWORD: Guideline E
DIGEST: The Judge’s conclusion that the government had failed to meet its burden is not
sustainable.  There is substantial record evidence regarding Applicant’s dismissals under
unfavorable circumstances from four employers and his inconsistent statements regarding his
omissions from his security clearance application and from two declarations for federal
employment.  Applicant denied wrongdoing and minimized his misconduct. The Judge’s
decision does not consider contrary record evidence, and relevant factors.  Favorable decision
reversed.
CASENO: 07-16511.a1
DATE: 12/04/2009
DATE: December 4, 2009
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-16511
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Francisco Mendez, Esq., Department Counsel
FOR APPLICANT
Pro Se
Government Exhibit (GE) 14 includes a memorandum by a Senior Vice President of Employer A suspending1
Applicant without pay for three days for “sexual and other harassment as result of several complaints of inappropriate
and unprofessional behavior.  These complaints included allegations of inappropriate relationships, as well as
inappropriate touching and hugging of female coworkers in the job site.”  Applicant was informed that subsequent
infractions could result in job termination.  This exhibit also includes another memorandum by the same person,
describing in detail his counseling session with Applicant.  This memo describes objectively offensive behavior,
including unwanted touching of female workers, sexually suggestive comments, etc.  According to this document,
Applicant denied being able to recall the incidents alleged against him, nor could he explain why others would make
these kinds of accusations against him.  “[Applicant] said he was sorry, but there were no obvious attempts to admit any
wrong doing[.]”
GE 15 is a memorandum from the Assistant Deputy Administrator of Employee B, advising Applicant that he2
was being terminated prior to the conclusion of his probationary period.  This document states that the reason for the
termination was “unacceptable conduct and performance,” including “rude and abrupt behavior with coworkers,”
“continued demonstration of disrespect for coworkers,” and unacceptable job performance.  It also stated that Applicant
had been provided feedback on his poor conduct, without improvement.  GE 15 contains a receipt acknowledgment
signed by Applicant.  In a Personal Subject Interview summary included in GE 7, Response to Interrogatories, Applicant
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On January 16, 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 hearing.  On August 31, 2009, after the hearing, Administrative Judge Mary E. Henry
granted Applicant’s request for a security clearance.  Department Counsel appealed pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: whether the Judge erred in
concluding that the Government had not met its burden of production and whether the Judge’s
application of the mitigating factors was erroneous.  Finding error, we reverse.  
The Judge made the following findings of fact: Applicant is a data analyst for a federal
contractor.  He has two sons, ages 16 and 11.  He served in the Army from 1994 until 1999.  
Applicant began to work for Employer A, a federal contractor, in 2002.  During the course
of the employment, Employer A counseled Applicant for violating its standards of conduct by
engaging in sexual harassment, inappropriate touching, inappropriate comments, etc.  Employer A
subsequently terminated Applicant based on this conduct.1
Applicant then went to work for Employer B, a federal agency.  He completed a Declaration
for Federal Employment (DFE), which inquired, inter alia, whether, within the previous five years,
he had ever been fired from a job for any reason.  He answered “no.”  Applicant “rushed through his
answers.  He thought it meant federal jobs only.”  Decision at 4.  Employer B terminated Applicant
“based on unacceptable conduct and performance.”   Id. 2
acknowledged having been counseled while working for Employer B because a customer had complained about him.
“He stated that the only problems he had at [Employer B] were people demanding things of him that he could not obtain
for them, problems with organizing travel and all of the various factors involved in that, and other customer service
related problems.”     
Both DFEs contain identical language: “During the last 5 years, have you been fired from any job for any3
reason, did you quit after being told that you would be fired, did you leave any job by mutual agreement because of
specific problems, or were you debarred from Federal employment by the Office of Personnel Management or any other
Federal Agency?”  GE 3, 4.  
See GE 7, Response to Interrogatories: “[Applicant] admitted that he was terminated from his position at4
[Employer C] due to unsuccessful completion of the probationary period . . . It was just a bad fit.”    
3
In September 2004 Applicant began working for Employer C, also a federal agency.  He
completed a second DFE in which he again answered “no” to the question about whether he had ever
been fired from a job.  Applicant stated that he had rushed through the form and believed that he did
not have to list terminations that occurred during a probationary period.   Approximately one year3
later, Employer C terminated Applicant.  Applicant was advised that “he was not meeting the work
guidelines for his position.”   Id.4
Applicant subsequently began working for Employer D.  He resigned from this employment
to take a position with his current employer.  
In January 2006, Applicant completed his security clearance application (SCA).  In answering
the question inquiring if he had been fired from a job within the prior seven years, the Judge found
that Applicant listed his termination by Employer A, but not B or C.  In response to other questions
on the SCA, he did not list his two sons, and he denied any outstanding debts.  
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
In her discussion of Applicant’s resignation from Employer D, the Judge noted GE 17, Status Change Notice,5
which refers to difficulties Applicant was having with his job.  Included in this document is an email from an Operations
Director at D:  “I kindly gave him the option to resign before I fired him for poor performance.  After he was fired, an
ex-girlfriend of his replied to all on an email he had sent from his [official] account that accused him of some negative
things.  The man is not to be trusted.”  The Judge stated that, because this email was sent out after the fact, and was based
on hearsay from Applicant’s girlfriend, it was entitled to little weight.  Accordingly, she concluded that the Government
had not met its burden of production as to Applicant’s resignation from Employer D.  However, GE 7, Response to
Interrogatories, includes a summary of an interview in which Applicant addressed this resignation.  “Regarding his
4
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). 
The Judge concluded that the Government had not met its burden of production as to the
alleged deliberate nature of the omissions.  She also concluded that the Government had not met its
burden regarding an allegation that Applicant resigned from Employer D in lieu of termination for
poor performance.  Department Counsel argues that the Judge’s conclusions do not take into account
significant contrary record evidence.  Department Counsel’s argument is persuasive.  
When an applicant denies an allegation contained in a SOR, the Government must produce
substantial evidence of the truth of the allegation.  Substantial evidence means “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.”  Directive  ¶ E3.1.32.1.  In the case of an omission in a SCA
or some other document, the Government’s burden of production requires more than merely showing
that the omission occurred.  See ISCR Case No. 07-00196 at 2 (App. Bd. Feb. 20, 2009).  Rather,
the Government must present substantial evidence that the omission was deliberate.  In evaluating
whether the Government has met its burden of production concerning an omission, the Judge must
examine the omission in light of the record as a whole.  See ISCR Case No. 07-03307 at 5 (App. Bd.
Sep. 26, 2008).
In this case, the Judge’s decision does not reflect that she took into account record evidence
that is not consistent with the view that Applicant’s omissions on the SCA and the two DFEs were
innocent.  For example, the record contains evidence that, as regards Applicant’s dismissals from
Employers A, B, and C, and his resignation from D,  the circumstances underlying these actions5
employment with [Employer D] [Applicant] was confronted with the unfavorable information [obtained during the
investigation]. . .  He explained that he never knew there was a problem or that his behavior was considered disrespectful
(particularly in regards to his contact with female coworkers) until he was spoken to approximately two months after he
began working there . . . that his behavior was bordering on sexual harassment . . . Regarding the unapproved email he
sent out, he thought that it was acceptable to send out the email without having his worked checked . . .”  This interview
corroborates the email contained in GE 17 and provides a strong reason to believe that, at the time he resigned from
Employer D, Applicant was aware of deficiencies in his conduct and performance.  The interview undercuts the Judge’s
conclusion that the Government had not met its burden of production that Applicant resigned from Employer D under
unfavorable circumstances and that he had not intended to deceive when he omitted that incident from his SCA.
See e.g., Tr. at 54-55.6
Tr. at 101-102.7
See Tr. at 80.  See also Department Counsel Brief at 12: “[A]t the hearing Applicant also claimed, for the first8
time, that when he read the [DFEs] he misunderstood Question 12 as requiring disclosure of only Federal jobs.”  
See Subject Personal Interview summary included in GE 7: “He did not realize that he needed to list his9
children (both of whom were born out of wedlock) on the case papers.”  The implication is that Applicant believed he
did not need to list his two children, due to their illegitimacy, which suggests that he gave the question some degree of
reflection.  This is not totally consistent with his testimony that it was an inexplicable mistake.  
5
include poor job performance, failure to obey standards of conduct, etc.  Indeed, the record
demonstrates that Applicant was previously disciplined by Employer A for the same conduct which
resulted in his termination.  This record evidence supports a conclusion that the circumstances
underlying the dismissals from Employers A, B, and C and the resignation from Employer D were
not favorable to Applicant.  A reasonable person could conclude that they supply Applicant with a
motive to prevent their discovery and, therefore, a motive for deliberately omitting them from the
Government documents in question.  That the Judge did not address this evidence undermines her
conclusion that the Government had not met its burden of production.
Additionally, the record contains some apparently inconsistent statements by Applicant,
which undermine the credibility of his claims that his omissions were not deliberate.  For example,
he variously attributed his omissions of the job firings to his having rushed through the documents,6
to his belief that he did not have to list terminations that occurred during probationary periods,  and,7
regarding the DFEs, to his mistaken opinion that he only needed to address firings from federal jobs.8
Concerning his having omitted his sons from the SCA, during the hearing Applicant stated that this
was a “bone-headed” mistake which shouldn’t have happened.  However, during a prior interview,
Applicant advised the investigator that he did not realize that he needed to list his children, which
reasonably implied that he had made a considered decision not to do so.   The Judge’s decision does9
 not sufficiently address Applicant’s inconsistencies, either by attempting to resolve or explain them,
or by attempting to demonstrate that they are relatively insignificant.  This undermines her favorable
estimate of Applicant’s credibility.  The Board has previously held that when the record contains a
basis to question an applicant’s credibility (inconsistent statements, contrary record evidence, etc.),
the Judge should address that aspect of the record explicitly, explaining why he or she finds an
applicant’s version of events to be worthy of belief.  Failure to do so suggests that a Judge has merely
On his SCA, Applicant stated that he was fired by Employer A due to a disagreement with his supervisor.10
During his interview included in GE 7, he characterized the reason for his firing as a “verbal altercation.”  He also stated
that, while working for Employer B, he and one of the office managers did not get along.  Tr. at 46.  Compare these
comments with the record evidence discussed in footnotes 1 and 2 above. 
GE 7, Response to Interrogatories; GE 15, Termination Letter.11
6
substituted a favorable impression of an applicant’s demeanor for record evidence.  See, e. g., ISCR
Case No. 03-23504 at 6 (App. Bd. Dec. 12, 2007). 
  
The Judge’s decision does not seriously address the extent to which Applicant’s explanations
for his conduct are contradicted by other evidence.  Most significantly, Applicant’s claims that his
various job firings were due to personality clashes are not consistent with record evidence that he
had failed to perform satisfactorily and that he had engaged in acts of sexual harassment while on
the job.   Additionally, in a subject interview, Applicant initially denied being able to recall why he10
was terminated by Employer A, despite his having signed a termination letter which explicitly refers
to his prior counselings and other disciplinary action for his misconduct and for job deficiencies.11
Finally, the Judge does not address the large number of omissions by Applicant and the fact that
these omissions, concerning different matters, occurred over a number of years, which in and of itself
is a reason to believe that they were deliberate.  The Judge’s decision does not reflect that she
devoted serious attention to the contrary record evidence.  This undermines the Judge’s conclusions
that the Government had failed to produce substantial evidence (1) that Applicants omissions were
deliberate and (2) that Applicant resigned from Employer D in lieu of termination.  The Judge’s
conclusions are arbitrary, capricious, and contrary to law.  
Despite this, the Judge did conclude that the terminations themselves by Employers A, B, and
C raised Personal Conduct security concerns.  However, she stated that these concerns were
mitigated by the passage of time and improved conduct and job performance.  The Judge’s decision
on this matter is undercut by her failure to consider record evidence discussed above concerning the
deliberate nature of Applicant’s omissions on the SCA and the DFEs.  Neither did she discuss record
evidence that Applicant either denied wrongdoing or minimized his misconduct, described, for
example, in Footnotes 1 and 10.  Such evidence undercuts her conclusion that Applicant had
demonstrated rehabilitation.  Evidence that Applicant deliberately omitted information on his SCA
also undercuts a conclusion that his Guideline E security concerns were not recent.  This failure
buttresses Department Counsel’s argument that the Judge substituted a favorable estimation of
Applicant’s demeanor for record evidence and that she did not evaluate the evidence in light of the
record as a whole.  The record, viewed in its entirety, does not support a conclusion that Applicant
has met his burden of persuasion under the Egan standard.  
The errors outlined above are not harmless, in that, had they not been made, the result of the
case would likely have been different.  The Judge’s decision does not consider relevant factors and
offers an explanation for the decision that runs contrary to the weight of the record evidence.  See
ISCR Case No. 03-22861, supra, at 2-3.  The Board concludes that the Judge’s decision is not
sustainable, in light of the record as a whole.
7
Order
The Judge’s favorable security clearance decision is REVERSED. 
Signed: Jeffrey D. Billett              
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin                 
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                
James E. Moody
Administrative Judge
Member, Appeal Board