KEYWORD: Guideline J; Guideline E
DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a
favorable security clearance decision. Adverse decision affirmed.
CASENO: 11-12980.a1
DATE: 07/19/2013
DATE: July 19, 2013
In Re:
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Applicant for Security Clearance
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ISCR Case No. 11-12980
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
September 5, 2012, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for
1The Judges’s favorable findings under Guideline F are not at issue on appeal.
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that decision—security concerns raised under Guideline J (Criminal Conduct) and Guideline E
(Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  The SOR was subsequently amended by Department Counsel adding  allegations under
Guideline F (Financial Considerations).  Applicant requested a hearing.  On April 10, 2013, after
the close of the record, Defense Office of Hearings and Appeals Administrative Judge Mark Harvey
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 criminal
conduct at issue involved minor offenses which were not recent.1  Applicant also notes several minor
errors in the Judge’s findings.  However, none of the errors cited by Applicant are sufficient either
individually or cumulatively to exert an effect on the outcome of the case, and the Judge’s material
findings of security concern are based upon substantial record evidence.
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. 12-11097 at 2 (App. Bd. Jun. 20, 2013).
In this case, the Judge found that Applicant had been charged seven times with
misdemeanor-level offenses between 1987 and 2010.  Decision at 2-4.  Although the Judge noted
that Applicant’s 2010 offense was “not particularly recent,” he concluded that fact alone was not
sufficient to mitigate the security concerns given the totality of the record before him.  Id at 7-8.  In
that regard, the Judge noted that Applicant had multiple offenses over a relatively lengthy period of
time, and alcohol had contributed to several of the offenses.  In 2004, a DOHA Judge had continued
Applicant’s security clearance and had noted Applicant’s abstinence from alcohol consumption
prominently in his decision.  Subsequent to that decision, Applicant had resumed the consumption
of alcohol and committed two criminal offenses in the last five years.  Id. at 8, 12.  In light of the
forgoing, the Judge’s adverse conclusions are sustainable.  
The Judge weighed the mitigating evidence offered by Applicant against the length and
seriousness of the disqualifying conduct and considered the possible application of relevant
conditions and factors. He found in favor of Applicant with respect to some of the allegations, but
reasonably explained why the mitigating evidence was insufficient to overcome all of the
government’s security concerns.  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,
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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.  “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 is AFFIRMED.
Signed: Michael Y. Ra’anan              
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                    
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: William S. Fields                     
William S. Fields
Administrative Judge
Member, Appeal Board