KEYWORD: Guideline J; Guideline E
DIGEST: Applicant did not respond to the File of Relevant Material.  The Judge’s conclusion
that he had not mitigated the security concerns is sustainable.  The Board cannot consider new
evidence on appeal.  Adverse decision affirmed.  
CASENO: 08-11083.a1
DATE: 01/25/2010
DATE: January 25, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-11083
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 advising Applicant of the basis
for that decision—security concerns raised under Guideline J (Criminal Conduct) and 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 November 12, 2009, after
considering the record, Administrative Judge Mary E. Henry 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.
In his appeal brief, Applicant contends that the Judge did not have all the necessary evidence
to make an informed decision.  Applicant then submitted new evidence for purposes of the appeal.
The Board is unable to consider information that was not part of the record, because the Board
cannot consider new evidence on appeal.  See Directive ¶ E3.1.29. 
 The Judge’s decision was based entirely on the government’s File of Relevant Material
(FORM) including Applicant’s response to the SOR.  In July 2009, Applicant received a copy of the
FORM and had the opportunity to submit materials to further refute, extenuate, or mitigate the
information in the FORM.  The FORM and the cover letter both had language advising Applicant
of his opportunity to submit additional information and documentation in response to the FORM.
At that time, Applicant could have submitted any materials he thought would strengthen his case
before the Judge.   Applicant did not respond to the FORM.  Applicant has not demonstrated error
on this issue.
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.   A party cannot reasonably
expect a Judge’s decision to be based on evidence which was not before the Judge.  The Judge’s
decision is sustainable. 
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: Jeffrey D. Billett          
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: William S. Fields         
William S. Fields
Administrative Judge
Member, Appeal Board