KEYWORD: Guideline J
DIGEST: The fact that criminal charges were dismissed does not preclude a Judge from finding
that an applicant engaged in the underlying criminal conduct.  The Board does not authority to
waive provisions of the Directive.  Adverse decision affirmed.
CASENO: 08-08606.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. 08-08606
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Randi B. Walker, Esq., Alan V. Edmunds, Esq.
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 1, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision–security concerns raised under Guideline J (Criminal Conduct) of Department
of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
On September 14, 2009, after the hearing, Administrative Judge David M. White denied Applicant’s
request for a security clearance.  Applicant appealed pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether certain of the Judge’s findings of
fact are supported by substantial record evidence and whether the Judge’s decision is arbitrary,
capricious, or contrary to law.  Finding no error, we affirm.
The Judge made the following pertinent findings of fact:  Applicant is a 46-year-old
employee of a defense contractor.  He served in the military from 1984 until 1989, during which time
he held a security clearance.
Between 1994 and 2007 Applicant was charged with several instances of criminal conduct,
including domestic violence, DWI, assault, and violation of a no-contact order.  The domestic
violence charges arose from Applicant’s interactions with his girlfriends.  Although many of the
charges were dismissed prior to trial, or reduced to lesser offenses, the Judge concluded that the
evidence presented by the Government was sufficient to establish Guideline J disqualifying
conditions.  The Judge went on to conclude that “Applicant did not establish persuasive mitigation
of the concerns arising [from the alleged misconduct].  His domestic violence arrests after physical
arguments with multiple women over 12 years, for the most recent of which he remains on probation,
preclude substantial mitigation[.]” Decision at 8.  
Applicant argues that the dismissal of some of the charges demonstrates that the alleged
incidents did not occur.  However, after examining the record, we conclude that the Judge’s findings
are supported by substantial record evidence.  See  Directive  ¶ E3.1.32.1.  (Substantial evidence is
“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.”).  “[T]he fact that criminal charges were
dropped, dismissed, or resulted in an acquittal does not preclude an Administrative Judge from
finding an applicant engaged in the conduct underlying those criminal charges.”  ISCR Case No. 99-
0119 at 2 (App. Bd. Sep. 13, 1999). 
Applicant requests that the Board waive the one-year bar on reapplication mandated by
Directive ¶ E3.1.37.  The Board does not have authority to waive provisions of the Directive.
Compare ISCR Case No. 04-01961 at 2-3 (App. Bd. Jul. 12, 2007); ADP Case No. 07-06039 at 3
(App. Bd. Jul. 8, 2008).  
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 Judge’s decision that “it is not clearly consistent with the interests
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of national security to grant Applicant eligibility for a security clearance” is sustainable on this
record.  Decision at 10.  “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).
Order
The Judge’s adverse security clearance decision is AFFIRMED.  
Signed: Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairperson, 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