KEYWORD: Guideline F; Guideline E
DIGEST: Applicant’s appeal brief does not rebut the presumption that the Judge fairly
considered all the evidence. Adverse decision affirmed
CASENO: 08-07753.a1
DATE: 02/25/2011
DATE: February 25, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-07753
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 September 11, 2009, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline F (Financial Considerations)
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and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On November 24, 2010, after the hearing,
Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance.
Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s adverse clearance
decision is arbitrary, capricious, or contrary to law.
Applicant contends that the Judge’s adverse decision should be reversed because the Judge
mis-weighed the evidence.  Specifically, he argues that the Judge’s decision focused almost
exclusively on the government’s adverse evidence and did not give enough consideration to the
mitigating evidence presented by Applicant.  As a result, Applicant believes that he did not receive
a fair decision under the whole-person concept.  Applicant has not demonstrated that the Judge’s
ultimate adverse decision is arbitrary, capricious, or contrary to law.
A review of the decision indicates that the Judge reasonably considered evidence favorable
to the Applicant including such things as: his explanations as to the circumstances alleged in the
SOR; his educational and employment accomplishments; his favorable performance reviews and pay
raises; his honorable service in the U.S. Army; his reputation for having a positive attitude, for being
cooperative, for being responsive to customers, and for being an effective manager; his recent
engagement of a debt resolution company and his settlement or partial payment of several
outstanding debts; and the fact that he has held a clearance since 1987.  Decision at 2-4, 9.  A Judge
is presumed to have considered all the evidence in the record.  See, e.g.,  ISCR Case No. 08-06559
at 3 (App. Bd. Dec. 2, 2010).  There is nothing in the Applicant’s presentation on appeal or in the
decision to rebut the presumption that the Judge fairly considered all of the evidence including
evidence favorable to the Applicant.
  
Once the government presents evidence raising security concerns, the burden shifts to the
applicant to establish mitigation.  Directive ¶ E3.1.15. 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).
As to Guideline F, the Judge found that Applicant had a lengthy history of not meeting
financial obligations.  At the time the case was submitted for decision, Applicant still had significant
outstanding debts, and was still trying to resolve his financial problems.  In light of the foregoing,
the Judge could reasonably conclude that Applicant “ha[d] not yet established a track record of
financial responsibility” and that his financial problems were still ongoing.  See, e.g., ISCR Case No.
05-07747 at 2 (App. Bd. Jul. 3, 2007).  The Judge weighed the mitigating evidence offered by
Applicant against the length and seriousness of the disqualifying conduct, and considered the
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possible application of relevant conditions.  He reasonably explained why the mitigating evidence
was insufficient to overcome the government’s security concerns.  The Board does not review a case
de novo.  After reviewing the record, the Board concludes that as to the Guideline F allegations 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 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).  The Judge’s unfavorable
security clearance decision under Guideline F is sustainable.  Accordingly, the Board need not reach
the issues raised by Applicant as to Guideline E.  See, e.g., ISCR Case No. 06-20062 at 3 (App. Bd.
Jul. 15, 2008).
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: Jean E. Smallin     
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields        
William S. Fields
Administrative Judge
Member, Appeal Board