KEYWORD: Guideline E; Guideline H; Guideline J
DIGEST: Applicant’s argument on appeal did not establish that the Judge mis-weighed the
record evidence.  The Government does not have to demonstrate that Applicant’s access to
classified information would pose an imminent threat to national security before denying a
clearance.  Adverse decision affirmed. 
CASE NO: 09-01515.a1
DATE: 09/15/2010
DATE: September 15, 2010
In Re:
----------------
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 09-01515
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Edward O. Lear, Esq.and Daniel Woodford, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On November 23, 2009, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline E (Personal Conduct),
Guideline H (Drug Involvement), and Guideline J (Criminal Conduct) of Department of Defense
Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On June
21, 2010, after the hearing, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s
1Applicant proffers an additional argument by asserting that there is no reasonable basis for concluding that
allowing Applicant’s access to classified information poses an imminent threat to the national interest.  He cites the
Directive ¶ 6.4, for the proposition that clearance suspension is authorized where an imminent threat to the national
interest is established.  Applicant’s argument is misplaced.  Clearance suspension pending the normal security clearance
adjudication process is a separate determination that is not applicable to this case.  Thus, the standard of imminent threat
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: whether the Judge erred in concluding that
Applicant failed to present sufficient evidence to overcome the government’s security concerns, and
whether the Judge misapplied the whole person factors.  For the following reasons, the Board
affirms the Judge’s unfavorable decision. 
The Judge made the following findings: Applicant is 20 years old.  He has been cited for
three driving infractions.  In December 2007, at the age of 17, he was cited for driving past curfew.
In February 2008, he was cited for unsafe turn signal, obstructed view and not having a driver’s
license in his possession.  In May 2008, Applicant was cited for speeding.  Applicant used marijuana
two or three times between December 2007 and January 2008.  He also used cocaine and ecstasy
on one occasion in January 2008.  He tested positive for illegal drugs during a drug screening test
conducted by his probation office in January 2008.  Applicant attributed his illegal drug use to peer
pressure.  He no longer associates with any drug users.  In August 2005, Applicant was arrested for
grand theft from person.  Applicant was accused of taking a $5 bill off of a person standing in line
in front of him at a store.  He was arrested and taken to jail.  He was issued a citation and required
to appear in court.  Unintentionally, he missed his court date and a warrant was issued for his arrest.
The court ultimately dismissed the case.  In September 2007, Applicant was arrested and charged
with felony burglary.  Applicant stole a bottle of alcohol (liquor) from a department store with a
friend, who stole additional items.  Applicant was arrested and taken to jail.  He was placed on
supervised probation for one year, required to complete of 80 hours of community service and 20
hours of either AA or NA meetings.  Applicant testified that he currently has a girlfriend, who has
kept him on the straight and narrow path for the past two years.  He feels that she has brought out
the best in him and he is a completely changed person.  He recently purchased a house.  Applicant
currently consumes alcohol, and is currently breaking the law.  He knows that it is illegal for him
to consume alcohol in the state, as he is under the legal age limit to consume alcoholic beverages.
The Judge concluded that the totality of the evidence indicates poor judgment, unreliability,
and untrustworthiness on the part of the Applicant.  Furthermore, although it is not alleged,
Applicant is consuming alcohol while he is still under the legal age to do so in the state of his
residence.  Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation
that is sufficient to overcome the government’s case.  Under the whole-person concept, the totality
of the conduct set forth under all the guidelines indicates that Applicant may not properly safeguard
classified information.  
 Applicant contends that the Judge’s unfavorable decision is not supported by the record
evidence and that Applicant established mitigation of the government’s concerns1.  He states that
is not applicable to this case. 
 
2Included with Applicant’s appeal brief was a Motion to Augment Record, wherein Applicant requested the
Board to consider evidence relating to his psychiatric treatment.  In keeping with the Directive’s prohibition against
considering matters not part of the record, the motion is denied. 
 
the conduct that the Judge cited as a basis for her decision can be attributed to his young age and
inexperience.  He states his unwillingness to jeopardize his current position, his disassociation from
the harmful influences that contributed to his past indiscretions, and the positive influences
represented by his girlfriend, his job and his new home.  Applicant’s arguments do not establish
error on the part of the Judge.
Applicant cites his commitment to weekly psychiatric treatment as an additional factor which
renders the Judge’s clearance decision arbitrary and capricious.  The evidence of psychiatric
treatment is new evidence, which the Board cannot consider on appeal.  Directive ¶ E3.1.29.2
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.  She adequately discussed why the disqualifying conduct established under Guidelines E,
H, and J was not mitigated.  
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
her 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: Jeffrey D. Billett           
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody          
James E. Moody
Administrative Judge
Member, Appeal Board
       SEPARATE OPINION OF ADMINISTRATIVE JUDGE MICHAEL Y. RA’ANAN      
To the extent that Applicant’s brief raises the issue of whether the Judge adequately
addressed questions of recency and maturity, I believe it raises a fair point.  Two years have passed
since the last misconduct alleged in the SOR (speeding five miles an hour over the speed limit) and
Applicant is twenty-years-old.  It would have been appropriate for the Judge to address in some
detail the applicability of Directive, Enclosure 2 ¶¶ 2(a)(3), 2(a)(4), 2(a)(9), 2(e)(1), 2(e)(5), 17(c),
26(a), 26(b), 32(a) and/or 32(d) in her decision.  Her failure to do so was error.
Signed: Michael Y. Ra’anan             
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board