KEYWORD: Guideline D; Guideline E
DIGEST: The Judge’s conclusion that Applicant’s security significant conduct was both
repeated and extensive was supported by the record.  The Judge’s decision reflects that she
considered the totality of the record evidence.  Adverse decision affirmed.  
CASE NO: 10-10482.a1
DATE: 12/20/2011
DATE: December 20, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-10482
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 June 8, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline D (Sexual Behavior) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On October 6, 2011, after the hearing,
Administrative Judge Carol G. Ricciardello 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 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 almost seven years have past since he engaged in the
disqualifying conduct, and that he is not at risk of manipulation, coercion, exploitation, and duress.
Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or
contrary to law.
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. 09-07229 at 2 (App. Bd. Feb. 15, 2011).
In reaching her adverse decision, the Judge considered the totality of Applicant’s situation,
including the factors referenced by the Applicant, but noted that Applicant had not presented
sufficient evidence to document his treatment, therapy, prognosis, or the qualifications of his
therapist.  Decision at 6.  She weighed the mitigating evidence offered by Applicant 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.  Id. at 5-9.  Based upon the record that was before
her, the Judge’s conclusion that Applicant’s “repeated and extensive behavior” was not mitigated
is sustainable.  Id. at 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 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 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