KEYWORD: Guideline C; Guideline B; Guideline E
DIGEST: 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 that the Judge
weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary
to law.  Applicant has submitted new evidence on appeal, which the Board cannot consider. 
Adverse decision affirmed.
CASE NO: 09-04933.a1
DATE: 05/24/2011
DATE: May 24, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-04933
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 security
clearance.  On August 13, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline C (Foreign Preference),
Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense
Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested the case be decided
on the written record.  On March 14, 2011, after considering the record, Administrative Judge Henry
Lazzaro 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 the evidence
is sufficient to establish that he mitigated the security concerns under Guidelines B and C, and that
he did not deliberately and intentionally provide false information during the security clearance
process as alleged under Guideline E.  Along with his brief, he submits new evidence, in the form
of additional explanations and several documentary exhibits.  The Board cannot consider this new
evidence on appeal.  See Directive ¶ E3.1.29.  
   
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).
With respect to the Guidelines B and C allegations, the Judge weighed the available
evidence, evaluated the seriousness of the disqualifying circumstances, and considered the possible
application of relevant conditions and factors.  He reasonably explained why there was insufficient
mitigating evidence to overcome the government’s security concerns.  Decision at 5-6.  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, 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 under Guidelines B and C is sustainable.
With respect to the Guideline E allegations, Applicant’s argument has merit, given the
representations by Department Counsel in the case.  See FORM at 16-17.  However, because the
Judge’s adverse decision under Guidelines B and C is sustainable, error in this regard would not
change the ultimate outcome of the case, and is deemed harmless.  See, e.g., ISCR Case No. 04-
11181 at 2 (App. Bd. May 8, 2007).
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairperson, 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