KEYWORD: Guideline M; Guideline E
DIGEST: Applicant failed to mitigate security concerns resulting from his having downloaded
pornography onto a company computer.  He submitted new evidence in his appeal, which the
Board cannot consider.  Adverse decision affirmed.
CASENO: 08-00162.a1
DATE: 01/14/2010
DATE: January 14, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-00162
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On June 3, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline M (Use of Information Technology
Systems) and Guideline E (Personal Conduct) of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a disposition on the written record.  On October 21,
2009, after the close of the evidentiary record, Administrative Judge Thomas M. Crean denied
Applicant’s request for a security clearance.  Applicant appealed pursuant to the Directive ¶¶ E3.1.28
and E3.1.30.
Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary,
capricious, or contrary to law.  For the following reasons, the Board affirms the Judge’s unfavorable
decision. 
The Judge found that despite the fact that Applicant’s company prohibited the accessing and
downloading of pornographic materials on company computers, pornographic material was found
on Applicant’s work computer in May 2006.  Applicant was a facility security officer at the time.
Applicant also failed to file a state income tax return for tax year 1998.  He subsequently filed the
return, paid his penalties and resolved the debt.  Applicant also used marijuana about 20 times from
September 1996 until December 2000.  The Judge concluded that Applicant’s accessing, viewing
and downloading of pornography on his company computer was not mitigated and was made worse
by the fact that, at the time, he was the facility security officer and was responsible for the company’s
compliance with security procedures, its security posture, and proper use of computer systems.  The
Judge concluded that Applicant’s tax delinquency and marijuana use were no longer of security
significance.
Applicant argues that the Judge’s findings of fact contain inaccuracies, namely the finding
that the hardest thing about his viewing of pornography was having to tell his wife about it, the
finding that he failed to mail his 1998 state tax return, and the finding that his last admitted use of
marijuana was in 2000 as opposed to 2003.  Applicant also argues that the record and a whole person
analysis mandate a conclusion that his case has been mitigated.  Applicant’s claims do not establish
harmful error on the part of the Judge.
In support of his appeal, Applicant has submitted new matters not contained in the record,
which the Board cannot consider.  See Directive ¶ E3.1.29. (“No new evidence shall be received or
considered by the Appeal Board”).  See also ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009).
Inasmuch as the Judge ultimately found in Applicant’s favor regarding the tax return and
marijuana use allegations, and resolved them favorably in his whole person analysis, any errors in
the Judge’s findings of fact regarding these two allegations are harmless.  Regarding the alleged error
in the Judge’s finding of fact relating to the accessing pornography allegation, the Judge’s finding
is supported by the evidence. 
Applicant’s arguments concerning mitigation do not establish error on the part of the Judge.
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 discussed the applicability of Guideline M mitigating conditions and
cogently explained why there was insufficient mitigation to overcome the government’s security
concerns.  He also discussed the inapplicability of Guideline E mitigating conditions as they related
to the pornography allegation.  His conclusions are reasonably supported by the record evidence. 
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.
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: James E. Moody           
James E. Moody
Administrative Judge
Member, Appeal Board