KEYWORD: Guideline J; Guideline H
DIGEST: The Board looks to Judge’s decision as a whole in evaluating his findings and
conclusions.  Judge’s material findings were supported by substantial record evidence.  Adverse
decision affirmed.   
CASE NO: 10-05750.a1
DATE: 12/08/2011
DATE: December 8, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-05750
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 March 24, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) and
Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On September 22, 2011, after the hearing,
Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance.  Applicant
timely 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 contends that the Judge’s adverse decision should be reversed because the
evidence  presented at the hearing was sufficient to mitigate the government’s security concerns.
In support of this contention, he argues that the Judge mis-characterized some of the evidence,
making the disqualifying conduct look more serious than it actually was.   Applicant’s argument
does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law.
The Board does not review sentences or passages in a Judge’s decision in isolation.  Rather,
it looks at the whole of the Judge’s decision to discern what the Judge found and concluded.  See,
e.g., ISCR Case No. 08-08721 at 3 (App. Bd. Oct. 20, 2011).  After reviewing the record that was
before the Judge, the Board concludes that his material findings of security concern are based on
substantial evidence, or constitute reasonable characterizations or inferences that could be drawn
from that record.  Accordingly, the Judge’s material findings of security  concern are sustainable.
See, e.g., ISCR Case No. 09-07424 at 2 (App. Bd. Aug. 16, 2011).
The Applicant is responsible for presenting witnesses and other evidence to rebut, extenuate
or mitigate facts admitted by the Applicant or proven by Department Counsel, and has the ultimate
burden of persuasion as to obtaining a favorable decision.  See 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. 09-07424,
supra at 2.
In reaching his decision, the Judge considered the totality of Applicant’s situation, including
the circumstances surrounding the incidents in question, and the fact that Applicant had taken
responsibility for his mistakes and expressed remorse.  Decision at 2-4.  He weighed the mitigating
evidence against the length and seriousness of the disqualifying conduct, considered the possible
application of relevant conditions and factors, and reasonably explained why the mitigating evidence
was insufficient to overcome the government’s security concerns.  Decision at 5-9.  The Board does
not review a case de novo.  The favorable evidence cited by Applicant is not sufficient to
demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law.  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.  
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