KEYWORD: Guideline E
DIGEST: Judge’s finding that Applicant deliberately provided false information during the
security clearance process is sustainable.  Hearing Office decisions are not binding on the Board
or on other Hearing Office Judges.  Adverse decision affirmed. 
CASE NO: 09-03448.a1
DATE: 05/19/2011
DATE: May 19, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-03448
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On August 23, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline E (Personal Conduct) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  The SOR was
subsequently amended on October 13, 2010 to add an allegation under Guideline B (Foreign
Influence).  Applicants requested a hearing.  On February 25, 2011, after the hearing, Administrative
Judge Jennifer  I. Goldstein 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’s adverse decision should be reversed because: 1) the Judge
erred in concluding that Applicant deliberately and intentionally provided false information on
multiple occasions during the security clearance process, and 2) the record evidence is sufficient to
support a favorable determination under the whole-person concept.  Applicant’s arguments do not
demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law.
In his brief, Applicant cites to other Hearing Office decisions in which applicants in
ostensibly similar circumstances were granted clearances.  Although such decisions may be cited
as persuasive authority, they are not binding legal precedent in another situation.  Applicant’s
reliance on other Hearing Office decisions does not demonstrate that the Judge erred in this case.
See, e.g., ISCR Case No. 07-15590 at 2 (App. Bd. Nov. 18, 2008).  “The adjudicative process is the
careful weighing of a number of variables known as the whole-person concept.”  Directive,
Enclosure 2 ¶ 2 (a).  “Each case must be judged on its own merits . . .” Id at ¶ 2 (b).
In reaching her decision as to Applicant’s falsifications, the Judge specifically considered
Applicant’s explanations.  Decision at 7-9.  However, she was not bound, as a matter of law, to
accept or reject those explanations.  Rather, the Judge considered those explanations in light of the
record evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s
omissions were deliberate and intentional.  On this record, the Judge’s finding that Applicant’s
falsifications were deliberate is sustainable.  See Directive ¶ E3.1.32.1.
Once the government presents evidence raising security concerns, the burden shifts to the
applicant to mitigate those concerns.  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, 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. 10-00278 at 2 (App. Bd. Mar.
18, 2011).
A review of the Judge’s decision indicates that she weighed the mitigating evidence offered
by Applicant against the seriousness of the disqualifying circumstances and considered the possible
application of relevant conditions and factors.  Decision at 7-9 and 10-11.  She found in favor of
Applicant under Guideline B, but reasonably explained why the mitigating evidence was insufficient
to overcome the government’s security concerns under Guideline E.
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 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, 158 (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).  Accordingly, 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