KEYWORD: Guideline J; Guideline H; Guideline E
DIGEST: Applicant’s argument that he omitted embarrassing information from his security
clearance applications out of concern for his job does not demonstrate error.  Specifically the
Judge considered Applicant’s explanation in concluding that the Applicant deliberately falsified
his applications.  Adverse decision affirmed.
CASENO: 10-05860.a1
DATE: 12/05/2012
DATE: December 5, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-05860
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 4, 2012, 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) and Guideline E (Personal Conduct) of Department of Defense Directive
5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicants requested a hearing.  On September 17,
2012, after the hearing, 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 Judge
erred in concluding that Applicant deliberately and intentionally provided false information on
security clearance applications he submitted in June 2004 and January 2010.  In support of that
argument Applicant states that he omitted the information because he was concerned about losing
his job and was very embarrassed about that happening.  He also states that he did not understand
how to fill out the applications and how important it was not to omit anything. Applicant’s
arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law.
In reaching his decision as to Applicant’s falsifications, the Judge specifically considered
Applicant’s explanations.  Decision at 3, 4 and 7.  However, he was not bound, as a matter of law,
to accept or reject those explanations.  Rather, the Judge considered those explanations in light of
the record evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s
omissions were deliberate and intentional.  On this record, the Judge’s finding that Applicant’s
falsifications were deliberate is sustainable.  See Directive ¶ E3.1.32.1.
Once the government presents evidence raising security concerns, the burden shifts to the
applicant to mitigate those concerns.  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, 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. 10-00278 at 2 (App. Bd. Mar.
18, 2011).
A review of the Judge’s decision indicates that he 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 found in favor of Applicant under Guidelines J
and H, but reasonably explained why the mitigating evidence was insufficient to overcome the
government’s security concerns under Guideline E.
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,
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“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, 158 (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).  Accordingly, the Judge’s
unfavorable security clearance decision  is sustainable.
Order
The Judge’s decision 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