KEYWORD: Guideline F
DIGEST: Applicant failed to demonstrate that the Judge mis-weighed the record evidence.  The
presence of some mitigating evidence does not alone compel a favorable decision.  Adverse
decision affirmed.  
CASE NO: 09-04275.a1
DATE: 04/18/2011
DATE: April 18, 2011
In Re:
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Applicant for Public Trust Position
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ADP Case No. 09-04275
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
trustworthiness designation.  On December 23, 2009, DOHA issued a statement of reasons (SOR)
advising Applicant of the basis for that decision—trustworthiness concerns raised under Guideline
F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  Applicant requested a hearing.  On January 31, 2011, after the hearing, Administrative
Judge John Grattan Metz, Jr. denied Applicant’s request for a trustworthiness designation.
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 trustworthiness
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.  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 history of serious medical problems; his favorable
character and employment references; and his post-hearing resolution of several small debts.
Decision at 2-4.  A Judge is presumed to have considered all the evidence in the record.  See, e.g.,
ADP Case No. 08-07882 at 2 (App. Bd. Apr. 16, 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 trustworthiness 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 trustworthiness 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., ADP Case No. 07-06039 at 4 (App. Bd. Jul.
8, 2008).
In this case, the Judge found that Applicant had a lengthy history of not meeting financial
obligations, which included 24 debts totaling nearly $64,000 that had fallen delinquent after
Applicant had received a Chapter 7 discharge in bankruptcy in July 2000.  Decision at 2.  At the time
the case was submitted for decision, Applicant still had significant outstanding debts, and was still
trying to resolve his financial problems.  He had submitted no budget or evidence that he was able
to live within his means, and there was no evidence that he had sought credit counseling or had
otherwise brought his financial problems under control.  Decision at 4.  In light of the foregoing, the
Judge could reasonably conclude that Applicant’s financial problems were still ongoing.   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.
He found in favor of Applicant with respect to four of the SOR factual allegations.  However, he
reasonably explained why the mitigating evidence was insufficient to overcome the government’s
trustworthiness concerns.  The Board does not review a case de novo.  After reviewing the record,
the Board concludes 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
Judge’s unfavorable trustworthiness determination is sustainable.
Order
The decision of the Judge denying Applicant a trustworthiness designation 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