KEYWORD: Guideline C; Guideline B
DIGEST: Applicant admitted all the SOR allegations.  The Judge’s findings are based upon
substantial record evidence.  Applicant has not demonstrated that the Judge mis-weighed the
evidence.  Adverse decision affirmed.
CASE NO: 10-01100.a1
DATE: 06/13/2011
DATE: June 13, 2011
In Re:
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Applicant for Public Trust Position
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ADP Case No. 10-01100
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Arash D. Zarei, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a
trustworthiness designation.  On February 23, 2009, DOHA issued a statement of reasons (SOR)
advising Applicant of the basis for that decision—trustworthiness concerns raised under Guideline
C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive
5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On March 25, 2011,
after the hearing, Administrative Judge Juan J. Rivera 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 or remanded
because the Judge erred in some of his findings and mis-weighed the evidence.  With respect to the
Guideline C allegations he argues that even though he possessed and renewed an Iranian passport
for many years, he only used it two times in thirty-three years to travel to Iran and surrendered it
prior to the hearing.  As to the Guideline B allegations he argues that the trustworthiness concerns
presented by the fact that he speaks to his parents in Iran by telephone once a week and sends them
three to four thousand dollars a year are outweighed by his significant ties to the United States and
his favorable character evidence.  Applicant has not demonstrated that the Judge’s ultimate adverse
decision is arbitrary, capricious, or contrary to law.
In this case, Applicant admitted to all the factual allegations in the SOR.  After reviewing
the record, the Board concludes that the Judge’s material findings of trustworthiness concern are
based on substantial evidence, or constitute reasonable characterizations or inferences that could be
drawn from the record.  See Directive ¶ E3.1.32.1.  Applicant has not identified any harmful error
likely to change the outcome of the case.
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).
A review of the decision indicates that the Judge weighed the mitigating evidence offered
by Applicant against the seriousness of the disqualifying circumstances and considered the possible
application of relevant conditions and factors. 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: Michael Y. Ra’anan       
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jean E. Smallin            
Jean S. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields          
William S. Fields
Administrative Judge
Member, Appeal Board