KEYWORD: Guideline E
DIGEST: 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.   Adverse decision affirmed
CASENO: 09-03010.a1
DATE: 04/16/2010
DATE: April 16, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-03010
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 11, 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
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
On January 20, 2010, after the hearing, Administrative Judge Mark Harvey denied Applicant’s
request for a security clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and
E3.1.30.
Applicant raises the following issues on appeal: (a) whether Applicant was denied procedural
due process and (2) 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 Applicant was on active duty with the Army and went AWOL in 2003.
He found that Applicant remained away from his military unit until 2005 when his AWOL status was
terminated by apprehension by civilian authorities.  Applicant was ultimately discharged from the
service with an “under other than honorable conditions discharge.”  After weighing the disqualifying
and mitigating evidence, the Judge concluded that Applicant had not fully mitigated all security
concerns.
Applicant states that he was ill prepared for what took place at the hearing and is now better
prepared to plead his case.  He would like the chance to plead his case again.  This raises the issue
of whether Applicant, acting as his own counsel, made a knowledgeable decision to represent
himself, and whether or not he was capable of acting effectively in concert with his own interests
during the hearing.  The Board has reviewed the transcript of the hearing, and concludes that the
Judge asked pertinent questions of Applicant and made an adequate inquiry into Applicant’s ability
to represent himself before the commencement of the evidentiary portion of the hearing.  The
transcript also indicates that Applicant had no apparent difficulty understanding the nature of the
proceedings and performed reasonably in presenting his case.  At no time did Applicant object to
going forward without an attorney or other representative.  Under these circumstances, there is no
basis for granting Applicant an additional opportunity to present his case.
Applicant argues that he has mitigated the government’s case against him.  He states that in
the five years since his discharge from the military, he has grown up and changed his life.  He points
to his stable employment as an example of his personal transformation.  This argument fails to
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,
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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 numerous mitigating conditions under
Guideline E at some length, but indicated with considerable detail why those Guideline E mitigating
conditions could not be invoked in this case to alleviate the government’s security concerns.  Thus,
the Judge’s adverse security clearance decision is sustainable. 
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jeffrey D. Billett        
   Jeffrey D. Billett
Administrative Judge
Member, 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