KEYWORD: Guideline J; Guideline H; Guideline F; Guideline E
DIGEST: The cited Appeal Board case is factually different from Applicant’s case.  Adverse
decision affirmed.
CASENO: 10-04182.a1
DATE: 07/05/2012
DATE: July 5, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-04182
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esq.
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 26, 2011, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct),
Guideline H (Drug Involvement), Guideline F (Financial Considerations), and Guideline E (Personal
Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).
Applicant requested a hearing.  On April 17, 2012, after the hearing, Administrative Judge Elizabeth
M. Matchinski denied Applicant’s request for a security clearance.  Applicant appealed pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s adverse security
clearance decision was arbitrary, capricious, or contrary to law.  Consistent with the following, we
affirm the Judge’s decision. 
The Judge made the following pertinent findings of fact: In 2006, while driving in a car with
three friends, Applicant was stopped by police.  During a search, the police discovered cocaine and
drug paraphernalia.  Applicant and his companions were arrested.  Applicant was charged with
felony possession of cocaine and misdemeanor possession of paraphernalia.  He pled guilty to the
charges, and they were dismissed.  
Applicant received citations for several motor vehicle infractions–speeding, improper lane
change,  operating a vehicle in an unsafe condition.    In 2007, he was charged with failure to appear
in court, which related to a prior speeding violation.  In 2008, Applicant was found by a police
officer smoking a marijuana cigarette.  He was arrested and charged with possession of marijuana,
pleading no contest.  Later that year, he received a citation for speeding and for driving on a
suspended license.
Applicant has accrued delinquent debts, for medical expenses, fitness club membership, a
credit card, etc.  The Judge noted that one of the debts alleged in the SOR was actually a repeat of
another.  She also noted that his claim to have resolved other debts was not supported by
corroborating evidence.  Applicant stated that he was currently negotiating with creditors and that
he had a repayment plan for a large credit card account.  
In completing his security clearance application (SCA), Applicant disclosed his 2008 drug
arrest.  However, he did not disclose his felony arrest for cocaine possession, his having smoked
marijuana, and his debts that were currently delinquent for over 90 days.  
A clearance investigator conducted an interview with Applicant concerning his undisclosed
arrests and his credit history.  Applicant stated that he had been in a car with another person on the
evening of his 2008 arrest and that the marijuana had been discovered on the floor of the passenger
side of the car.  He admitted that he had not made payment on any of the debts.  Moreover, he stated
that he had consulted an attorney concerning his earlier arrest for cocaine and that the attorney had
advised him that he did not need to disclose it, because the conviction had been expunged.  
1Directive, Enclosure 2 ¶ 20(a): “the behavior happened so long ago . . . that it is unlikely to recur and does not
cast doubt on the individual’s current reliability, trustworthiness, or good judgment[.]”  
2Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the
person’s control . . . and the individual acted responsibly under the circumstances[.]” The Judge addressed this mitigating
condition in evaluating Applicant’s medical debts.  
3Directive, Enclosure 2 ¶ 20(c): “the person has received or is receiving counseling for the problem and/or there
are clear indications that the problem is being resolved or is under control[.]”  
4Directive, Enclosure 2 ¶ 20(e): “the individual has a reasonable basis to dispute the legitimacy of the past-due
debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides
evidence of actions to resolve the issue[.]”
5Directive, Enclosure 2 ¶ 17(b): “the . . . omission was caused or significantly contributed to by improper or
inadequate advice of authorized . . . legal counsel advising or instructing the individual specifically concerning the
security clearance process[.]”  
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At the hearing, Applicant reiterated that an attorney had advised him not to list the cocaine
arrest.  Concerning his debts, he stated that he had heard about others whose credit problems
affected their security clearances.  
Applicant enjoys a good reputation for his integrity, enthusiasm, trustworthiness, and
reliability.  He encouraged his younger brother to join the military because of the importance and
dignity of military service.
In the Analysis, the Judge concluded that Applicant had mitigated the Guideline H security
concerns.  However, she reached opposite conclusions for the other Guidelines.  For example,
regarding Guideline J, she concluded that there is reason to doubt the credibility of his account of
the 2008 arrest.  She also stated that Applicant’s admission of having smoked marijuana was belated.
Under Guideline F, she concluded that the debts were ongoing;1 that he had not shown responsible
behavior in regard to his debts;2 that, though Applicant had inquired about a repayment plan, the
likely success of such as plan was not apparent;3 and that he did not substantiate his dispute of the
validity of one of the debts.4  Although she gave Applicant credit for resolving some debts not
alleged in the SOR, she concluded that he had not demonstrated mitigation for any of the SOR debts
except one.  Under Guideline E, the Judge addressed, among other things, Applicant’s evidence that
he had relied upon the advice of an attorney in answering the SCA question about his 2006 arrest.5
She stated that there was no evidence that the attorney understood that the SCA explicitly required
Applicant to disclose arrests and convictions that had been expunged; therefore, she could not find
Applicant’s testimony sufficient to establish mitigation.
Applicant cites to some other decisions, by the Appeal Board and by the Hearing Office,
which he contends support his case for a clearance.  We give these decisions due consideration as
persuasive authority, but conclude that they do not demonstrate that the Judge’s decision was in
error.  Hearing Office decision are not binding on other Hearing Office Judges or on the Board.  See,
e.g., ISCR Case No. 10-00218 at 4-5 (App. Bd. Oct. 17, 2011).  We note the Appeal Board case
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which Applicant has cited but find that it contains significant factual differences from his own.  Each
case must be decided on its own merits.  Directive, Enclosure 2 ¶ 2(b).  
Applicant contends that the Judge erred by not extending mitigating effect to Applicant’s
testimony about his reliance upon the advice of an attorney in completing his SCA.  However,
examined in light of the entire record, the Judge’s analysis is sustainable.  Given the totality of the
record evidence, we conclude that the Judge’s application of the mitigating conditions and the
whole-person factors is sustainable.   
The record supports a conclusion 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 Judge’s adverse decision is sustainable on this record.  “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).  See also Directive, Enclosure 2 ¶ 2(b):
“Any doubt concerning personnel being considered for access to classified information will be
resolved in favor of the national security.”
Order
The Judge’s adverse security clearance decision is AFFIRMED.
Signed: Jean E. Smallin                  
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields                 
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                 
James E. Moody
Administrative Judge
Member, Appeal Board