KEYWORD: Guideline D; Guideline E
DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a
favorable security clearance decision.
CASENO: 09-07229.a1
DATE: 02/15/2011
DATE: February 15, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-07229
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 March 24, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline D (Sexual Behavior) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested that the case be decided on the written record.  On
November 19, 2010, after considering the record, Administrative Judge Robert J. Tuider 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 argues that the Judge mis-weighed the evidence and that his adverse decision
should be reversed.  In support of his argument, Applicant asserts: 1) his sexual misconduct was not
lengthy, 2) it occurred over five years ago, 3) he did not try to hide the misconduct, 4) he is not
subject to coercion, and 5) he has held a clearance without incident since 1986.  Applicant’s
arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law.
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 his decision, the Judge noted that Applicant had elected to have his case decided on the
written record in lieu of a hearing and had “ . . . presented little or no evidence to explain, extenuate,
or mitigate the sexual behavior and personal conduct security concerns.”  Decision at 7.  As a result,
he concluded that Applicant had failed to meet his ultimate burden of persuasion to obtain a
favorable clearance decision.  Id.  The Judge weighed the limited mitigating evidence offered by
Applicant against the length and seriousness of the disqualifying conduct and considered the
possible application of relevant conditions and factors.  His analysis included consideration of the
circumstances referenced in Applicant’s appeal brief.  Decision at 2, 3, 6 and 7.  He found in favor
of Applicant with respect to two of the SOR factual allegations, but reasonably explained why the
mitigating evidence was insufficient to overcome all of the government’s security concerns.
The Board does not review a case de novo.  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
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security.’”  Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  Therefore, the Judge’s
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: Jean E. Smallin              
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields               
William S. Fields
Administrative Judge
Member, Appeal Board