KEYWORD: Guideline G; Guideline J; Guideline E
DIGEST: The Judge found that Applicant has a lengthy and serious history of alcohol-related
incidents as well as arrests for other criminal conduct.  The Judge reasonably explained why the
mitigating evidence was insufficient to overcome the security concerns.  Adverse decision
affirmed.
CASENO: 10-00278.a1
DATE: 03/18/2011
DATE: March 18, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-00278
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 May 21, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline G (Alcohol Consumption),
Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense
Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On January
4, 2010, after the hearing, Administrative Judge Michael H. Leonard 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 seeks reversal of the Judge’s adverse decision arguing that the evidence
demonstrates that Applicant has mitigated the security concerns raised by his disqualifying conduct.
Applicant’s presentation  does not demonstrate that the Judge’s decision is arbitrary, capricious or
contrary to law.
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.  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. 07-13837 at 2 (App. Bd. Sep.
28, 2010).
In this case, the Judge found Applicant had a lengthy and serious history of alcohol-related
incidents between 1989 and 2009, as well as arrests and charges for other criminal conduct.
Decision at 2-4.  He had also given false answers about his police record when he completed
security clearance applications.  Id. at 5.  The Judge weighed the mitigating evidence offered by
Applicant against the length and seriousness of the disqualifying conduct and considered the
possible application of relevant conditions and factors.  Id. at 7-9.  He found in favor of Applicant
with respect to several of the SOR factual allegations, but reasonably explained why the mitigating
evidence was insufficient to overcome all of the government’s security concerns.  Id.
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
security.’”  Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  Therefore, the Judge’s
unfavorable security clearance decision is sustainable.
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Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jean E. Smallin           
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody          
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: William S. Fields         
William S. Fields
Administrative Judge
Member, Appeal Board