1 The Judge entered formal findings favorable to Applicant under Guideline E.  Those favorable findings are
not challenged on appeal.
KEYWORD: Guideline J; Guideline E; Guideline F
DIGEST: The presence of some mitigating evidence alone does not compel a favorable decision. 
There was no inconsistency in the Judge’s whole-person analysis.  Adverse decision affirmed.
CASE NO: 10-06763.a1
DATE: 01/03/2013
DATE: January 3, 2013
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-06763
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Gayle J. Brown, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 18, 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 E (Personal Conduct), and Guideline F (Financial Considerations) of Department of
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
On September 12, 2012, after the hearing, Administrative Judge Mark Harvey denied Applicant’s
request for a security clearance.1  Applicant timely appealed, pursuant to the Directive ¶¶ E3.1.28
and E3.1.30.  
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Applicant raises the following issues on appeal: whether the Judge erred by finding sufficient
evidence of security concerns under Guidelines F and J, and whether the Judge erred in failing to
adequately consider mitigating factors under the whole-person concept.  For the following reasons,
the Board affirms the Judge’s unfavorable security clearance decision. 
The Judge made the following findings of pertinent fact: Applicant is 58 years old.  He
married his first wife in 1973, and he was divorced from her in 1998.  He married his second wife
in April 2003, was separated from her in September 2009, and divorced in January 2012.  In August
1997, Applicant’s first wife alleged that he illegally entered her residence, woke her up, and took
the keys to her truck.  In September 1997, a judge granted her request for a domestic violence
protective order against Applicant.  On September 16, 2009, Applicant argued with his second wife.
The wife told police that Applicant pointed an unloaded firearm at her and threatened her.  During
the same incident, Applicant picked up a hammer and broke three windows on his second wife’s car.
Applicant was arrested.  He ultimately pled guilty to criminal mischief in the third degree, a felony.
Applicant is on probation and is compliant.  He has been at a minimal level of supervision since
October 14, 2010.  His probation will be completed on February 4, 2013.
Applicant’s SOR and credit reports list 22 delinquent debts totaling $154,543.  Excluding
a mortgage account, the total debt is $52,444.  In July 1998, Applicant’s nonpriority, unsecured
delinquent debts were discharged under Chapter 7 of the Bankruptcy Code.  Applicant’s bankruptcy
in 1998 was caused by his first divorce.  He could not afford to pay the family debts without his first
spouse’s income.  Applicant’s second wife was responsible for paying the family debts.  Applicant
was often away from home.  In August 2009, Applicant learned he had delinquent debts.  His
financial situation shocked him, and he told his second wife he wanted a divorce.  Earlier, he and
his wife had purchased a home in May 2004 for about $200,000.  They later borrowed $50,000 for
home improvement.  A refinancing of the house resulted in a larger payment.  Applicant could not
afford the increased payment and the house went into foreclosure.  
Applicant has not received financial counseling.  He believed he can afford to pay his
creditors a couple hundred dollars a month until he can get other bills taken care of.  Applicant
provides some financial support for his ill father.  Applicant had 10 debts owed to the same creditor
for $2,649.  He says he has been in touch with this creditor once or twice, but not recently.  He did
not provide any correspondence to or from the creditor.  Applicant said he has not made any
payments to any of his SOR creditors.  He has paid off a vehicle that his second wife refinanced,
some medical bills and a debt to the IRS.  He is paying the IRS $750 each month to address a non-
SOR debt of about $3,500.  
After Applicant and his second wife separated in September 2009, he did not want to pay the
debts until the divorce court settled the issue of responsibility for each debt.  The divorce court
ordered Applicant to pay $5,654 owed on his truck plus 15 debts totaling $29,560.  From 2006 to
2009, Applicant’s income was approximately $69,000, $69,000, 71,000 and $58,000.  In the last
year, Applicant’s second wife has expressed some remorse for her contributions to their marital
difficulties.
2 “[T]he behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is
unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment[.]”
3 “[T]he conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss
of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the
individual acted responsibly under the circumstances[.]”
4 In this case, ¶ 19(a) (“inability or unwillingness to satisfy debts”), and ¶ 19(c) (“a history of not meeting
financial obligations”).
3
The Judge reached the following conclusions: Applicant committed two felonies, which are
serious crimes.  He is on probation until February 4, 2013.  Although none of the mitigating
conditions fully apply, there are important mitigating factors.  The offense is more than three years
old and not recent.  Applicant admitted his misconduct to the police.  He was not convicted of
assaulting his second wife.  He has scrupulously complied with all terms of his probation, has been
continuously employed, and has expressed regret and remorse over the altercation.  He deliberately
pointed his unloaded firearm at his second wife and threatened her.  More time without any criminal
misconduct must elapse before there is enough assurance that criminal conduct is unlikely to recur.
Some of Applicant’s debts have been delinquent since 2009.  Applicant has not taken
reasonable action to resolve most of his SOR debts.  The circumstances beyond his control were
significant.  However, he did not adequately explain why he had not made any payments to his SOR
creditors, especially after his divorce was final in January 2012.  He did not provide documentation
proving that he maintained contact with his SOR creditors, and he did not provide any
documentation showing his attempts to negotiate payment plans with his SOR creditors.  There is
insufficient evidence that his financial problem is being resolved and is under control.  Applicant
failed to prove that he could not have made greater progress resolving and documenting resolution
of his SOR debts.      
Applicant argues that, regarding Guideline F, no evidence was presented in his case to
indicate that he was or is unable or unwilling to eventually satisfy his debts.  He also asserts that
Mitigating Condition ¶ 20 (a)2 and Mitigating Condition ¶ 20 (b)3 apply to the facts of this case.
Much of Applicant’s factual argument focuses on the role Applicant’s second wife played in
accumulating the debts in question.  Applicant’s narrative represents a plausible interpretation of
the record evidence.  Notwithstanding this, Applicant’s arguments do not establish that the Judge’s
analysis and conclusions regarding his finances are arbitrary, capricious, or contrary to law.
Once the Government produces evidence raising security concerns, the burden shifts to the
Applicant to establish mitigation.  Contrary to Applicant’s assertion, after a review of the record,
the Board concludes that the Judge’s application of Guideline F disqualifying conditions4 was
reasonably supported by the evidence.  Although the Judge gave ample consideration to the role of
Applicant’s second wife in contributing to his financial woes, the Judge did not conclude that
Applicant’s difficulties were solely the fault of his ex-wife, nor did the evidence require him to.
Moreover, a principal focus of the Judge’s analysis was Applicant’s failure to take any meaningful
steps toward resolution of his long delinquent debts during the eight month period between the
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finalization of his divorce and the close of the record in this case, a period unaffected by his ex-
wife’s shortcomings.
Given this record, 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.  See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007).  Applicant’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. 06-17409 at 3 (App. Bd. Oct. 12, 2007).
Applicant acknowledges his past criminal acts, but asserts that since the Judge specifically
found that despite the allegations of criminal activity asserted against Applicant, there is no evidence
of security violations, disloyalty, or that he would intentionally violate national security, an ultimate
finding that it is not clearly consistent with the national interest to grant him a security clearance is
not warranted.  This argument is not persuasive.  The federal government need not wait until an
applicant actually mishandles or fails to safeguard classified information before it can deny or
revoke access to such information.  See, e.g., ISCR Case No. 08-09918 at 2 (App. Bd. Oct. 28,
2009).  The absence of security violations does not bar or preclude an adverse security clearance
decision.  See ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005).   Similarly, the absence of
acts of disloyalty or deliberate violations of national security do not necessarily resolve the
government’s security concerns.  The Judge’s finding that Applicant has not, and likely will not,
engage in deliberate acts that violate security does not preclude the possibility that Applicant,
because of his past conduct, is at risk for committing negligent or inadvertent breaches of national
security.  Indeed, the Judge specifically concluded that Applicant’s criminal offenses (and his failure
to pay his debts) show a lack of judgment and raise questions about his reliability, trustworthiness
and ability to protect classified information.  These conclusions are reasonably supported by the
record.
Applicant argues that the Judge found substantial evidence of successful rehabilitation,
including the passage of time without recurrence of criminal activity, remorse, and a good
employment record, and thus, any reasonable security concern was mitigated.  The Judge found that,
although there was important evidence in mitigation, none of the Guideline J mitigating conditions
fully applied.  In ultimately finding against Applicant, the Judge emphasized Applicant’s act of
deliberately pointing a firearm at his ex-wife, notwithstanding Applicant’s denials at the hearing.
The Judge’s conclusion that more time is needed to ensure that criminal acts will not recur is
sustainable on this record.  
Applicant also argues that the case against him was mitigated considering the factors
enumerated under the whole-person concept.  Applicant claims an inconsistency in the Judge’s
favorable formal findings under Guideline E and his conclusion that Applicant’s “personal conduct”
when considered under the whole-person factors had not been mitigated.  The Board sees no
inconsistency.  Applicant is apparently labeling all of Applicant’s security significant conduct as
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“personal conduct” for purposes of evaluating the Judge’s analysis under the whole person.  This
appears to assume that when the Judge, in his whole-person analysis, commented upon Applicant’s
financial and criminal conduct issues in the context of reliability and trustworthiness, he was
essentially repeating a Guideline E analysis.  However, a review of the SOR allegations and the
Judge’s analysis under Guideline E indicates that Applicant’s financial problems were not included
in the Guideline E analysis.  Thus, it is improper to label the conclusions inconsistent when they
differ in scope, and the whole-person analysis necessarily involved a consideration of both financial
issues and criminal issues viewed together and view in the context of all the other evidence in the
record, both favorable and unfavorable.  While Applicant accurately cites several matters in
mitigation when discussing the whole-person, the Board concludes that these facts did not compel
the Judge to make an ultimate finding in Applicant’s favor.      
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.  See, e.g.,
ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007).  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 ultimate unfavorable security clearance decision is sustainable.
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Order
The decision of the Judge is AFFIRMED.
Signed: Jeffrey D. Billett              
Jeffrey D. Billett
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