KEYWORD: Guideline J; Guideline E; Guideline F
DIGEST: In 2006-7, Applicant stole approximately $8,000 of goods from her employer.  The
record as a whole does not demonstrate that this conduct has been mitigated.  Favorable decision
reversed.
CASENO: 09-03251.a1
DATE: 03/09/2011
DATE: March 9, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-03251
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Melvin A. Howry, Esq., Department Counsel
FOR APPLICANT
Pro Se
1The hearing occurred on January 28, 2010.  Tr. at 3.  
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 4, 2009, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct),
Guideline E (Personal Conduct), and Guideline F (Financial Considerations) of Department of
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
On November 15, 2010, after the hearing, Administrative Judge Wilford H. Ross granted
Applicant’s request for a security clearance.  Department Counsel appealed pursuant to Directive
¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal:  whether the Judge’s application
of the mitigating conditions was not supported by the evidence and whether the Judge conducted
a piecemeal analysis of the allegations.  Consistent with the following discussion, we reverse the
decision of the Judge. 
Facts
The Judge made the following findings of fact:
Applicant is employed by a Defense contractor and seeks to obtain a security clearance in
connection with her job.   
Between January 2006 and September 2007, Applicant stole approximately $8,000 from the
Army and Air Force Exchange Service (AAFES).  Applicant testified that she committed the thefts
due to events in her personal life, including the deaths of her father and brother.
When her thefts were discovered, Applicant admitted the misconduct.  Subsequently, she
resigned from the employ of AAFES.  At the time of her resignation, she had worked in various
locations for AAFES for 13 years.
Applicant has worked out a repayment plan with AAFES whereby she will pay $173.34 a
month until the debt is extinguished.  Between September 2009 and the date of the hearing,1
Applicant had not made any payments, due to “other financial issues that came up, some connected
to deaths in her family.”  Decision at 3.
When Applicant submitted her security clearance (SCA) application, she did not state her
AAFES employment during the time that she committed the thefts.  However, when asked on the
same SCA if she had ever left a job following charges or allegations of misconduct, she answered
“yes” and advised about her thefts.
In July 2009, Applicant paid off a $627 debt she owed to the Federal Government for back
taxes.
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Applicant enjoys a good reputation for her moral standards, her work ethic, and her
dedication to national security.  
Discussion
A Judge is required to “examine the relevant data and articulate 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 Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is
arbitrary, capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presents
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors does not turn simply on a finding that one or more of them apply to the
particular facts of a case.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
Department Counsel does not take issue with the Judge’s favorable findings concerning
Applicant’s answer to the SCA and her Federal tax debt.  However, Department Counsel does
contend that the Judge erred in his analysis of the Guidelines J, E, and F concerns arising from her
thefts and her failure to make payments under her repayment plan.  He persuasively argues that the
record evidence does not support the favorable decision.  We note the following evidence which is
not consistent with the Judge’s decision.
2Directive, Enclosure 2 ¶ 17(c).
3Directive, Enclosure 2 ¶ 20(a).
4Directive, Enclosure 2 ¶ 32(a).  
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Government Exhibit (GE) 4, Answers to Interrogatories, dated July 7, 2009, contains a
summary of her security clearance interview.  Applicant certified that the summary was accurate.
In this document, she stated the reasons for her having stolen the property:   
Subject admitted that she stole money from the register and various items from the
Shoppette out of habit as the items were convenient and she was too lazy to pay,
didn’t want to pay, or didn’t have the money to pay for the items.  Subject admitted
that she was having a bad year, was depressed, and had personal problems at home
which did not excuse her behavior.  Subject was aware of what she was doing but at
the time did not care if she got caught or not.  
The Judge appeared to conclude that Applicant’s family circumstances were at the root of her
misconduct.  Her interview is not consistent with that conclusion.  Neither is this interview
consistent with the Judge’s favorable application of mitigating conditions 17(c),2 20(a),3 and 32(a),4
each of which require Applicant to show that the conduct “does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment.”  
Applicant testified that her father and brother died in 2009.  Tr. at 38.  She stated the same
thing in her answer to DOHA Interrogatories.  GE 4.  Applicant testified that she committed the
thefts because she was upset over her father’s remarriage.  Tr. at 48.  This evidence contradicts the
Judge’s finding that Applicant committed the theft because of depression resulting from the deaths
of her father and brother.  
The Judge’s findings and the record evidence underlying those findings support a conclusion
that Applicant’s misconduct took place over a course of nearly two years.  Indeed, in her security
clearance interview, she stated that she “stole daily various items from the AAFES Shoppette,
including bags of chips, coffee, soda, magazines, candy, and about $40.00 cash every weekend from
the register.”  GE 4.  There is no evidence in the record to explain why such purposeful and repeated
misconduct is logically connected to Applicant’s having been disturbed over her father’s remarriage,
as she testified.  See ISCR Case No. 08-05351 at 8 (App. Bd. Mar. 12, 2010) (There was nothing in
the record to establish a nexus between the death of applicant’s son and applicant’s security
significant misconduct).  
Furthermore, in discussing her reasons for the theft, Applicant testified that, in addition to
having been upset over her father’s remarriage, she was upset over her brother’s death.  “And I just
got depressed and I did what I did because I didn’t know where my life was headed.”  Tr. at 49.
However, as stated above, Applicant’s other testimony and her answer to DOHA interrogatories
5See also Applicant Exhibit B, a spreadsheet prepared by AAFES showing Applicant’s history of repayment.
According to this document, Applicant made a payment of $133.85 in October 2007 and then made no further payment
until January 2009.  “[T]his does not constitute a track record of payment, and bears no relationship to the mitigating
circumstances suggested by the Administrative Judge.”  Department Counsel Brief at 11.  In addition to the mitigating
conditions discussed above, the Judge concluded that Applicant had demonstrated that her AAFES debt is under control
or is being resolved (Directive, Enclosure 2 ¶ 20(c)) and that she has made a good-faith effort to pay off her debt to
AAFES (Directive, Enclosure 2 ¶ 20(d)).
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indicate that her brother died in 2009, well after the thefts.  The Judge did not address this
inconsistent statement and the extent to which it undermines Applicant’s credibility.
The Judge found that Applicant had not made payments to AAFES under her repayment plan
for several months preceding the hearing.  She stated that she had stopped making payments due to
“financial difficulty.”  Tr. at 37.  She attributed her financial difficulty in 2009 to her having had a
bad year, which included the deaths of her father and brother.  She testified that she does not have
an emergency fund, that she lives paycheck to paycheck, and that her “account is minus right
now[.]” Tr. at 38.  This evidence undermines the Judge’s conclusion that her repayment efforts show
mitigation, especially of the Financial Considerations security concerns.5  The Judge did not discuss
the extent to which Applicant’s security significant debts appear connected to her experience of
personal difficulties which, while painful, are not “qualitatively different from what an average
person might expect to encounter during the course of a lifetime.”  ISCR Case No. 06-23362 at 4
(App. Bd. Apr. 4, 2008).  
Department Counsel argues that the Judge engaged in a piecemeal analysis of the record.
We find merit in this argument.  The record evidence, viewed as a whole, does not support the
Judge’s  application of the mitigating conditions or the whole-person factors in light of the Egan
standard.  The Judge’s favorable security clearance decision is not sustainable.
Order
The Judge’s favorable security clearance decision is REVERSED.
Signed: Jeffrey D. Billett               
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin                 
Jean E. Smallin
Administrative Judge
Member, Appeal Board
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Signed: James E. Moody                  
James E. Moody
Administrative Judge
Member, Appeal Board