KEYWORD: Guideline E; Guideline D; Guideline B
DIGEST: Applicant’s multiple inconsistent statement reduce the weight that can be assigned to
his testimony. The Judge made sustainable findings that Applicant has a significant history of
poor judgment.  Adverse decision affirmed.
CASENO: 13-00255.a1
DATE: 07/09/2014
DATE: July 9, 2014
In Re:
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Applicant for Security Clearance
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ISCR Case No. 13-00255
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Philip D. Cave, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
October 30, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
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decision—security concerns raised under Guideline E (Personal Conduct); Guideline D (Sexual
Behavior); and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan.
2, 1992, as amended) (Directive).  Applicant requested a hearing.  On May 1, 2014, after the
hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge James F. Duffy
denied Applicant’s request for a security clearance.  Applicant appealed, pursuant to the Directive
¶¶ E3.1.28 and E3.1.30.  
Applicant raises the following issue on appeal:  whether the Judge’s decision is arbitrary,
capricious, or contrary to law.  For the following reasons, the Board affirms the Judge’s unfavorable
security clearance decision.
The Judge made the following findings of fact: Applicant is 41 years old.  He was terminated
from jobs in 2000 and 2002 for missing work.  In 2007 he was terminated from a job for stealing
money from his employer.  Applicant had extra-marital affairs in 2002 and 2007 when he traveled
overseas.  In 2007, at the time of his trip, his wife believed he was going overseas to visit his
brother.  Applicant now claims he did not have sex with the woman on the 2002 trip.  He also
submitted a letter from his wife in which she acknowledged his infidelity.  From the letter, it cannot
be determined whether she is referring to one of these incidents or both.  
Applicant was born in Morocco.  He immigrated to the United States in the late 1990s and
became a U.S. citizen in the mid-2000s.  Also, in the 2000s, Applicant married, had a child,
purchased a house, and acquired bank accounts in the U.S.  He owns no property in Morocco.
Applicant’s parents, brothers and his sister are citizens of Morocco.  All are residents of Morocco
except for one brother who lives in France.  He has two sisters-in-law and a brother-in-law who are
citizens and residents of Morocco.  
Applicant’s mother is a housewife who cannot read or write.  She has never held any
government positions.  His father is a retired employee of the Moroccan government who receives
a government pension.  Applicant talks to his parents weekly on the telephone.  He visited them in
2012 and 2013.  Earlier, he gave his parents $40,000 to purchase an apartment in Morocco which
he could inherit part of in the future.  He sends them $100 to $200 a quarter for their support.
Applicant speaks to one brother once or twice a month and speaks to his other two brothers about
once a month.  He speaks to his sister about once every two weeks.  Applicant traveled to Morocco
eight times in the last decade.  The purpose of these trips was to visit family.
There is a potential for terrorist violence against U.S. interests and citizens in Morocco.  In
2012, al-Qa’ida expanded its efforts to recruit Moroccans for combat in other countries and called
for attacks on U.S. ambassadors in Morocco and the region.  Morocco and the United States work
closely on counter-terrorism efforts.  Morocco has a comprehensive counter-terrorism program of
vigilant security measures, regional and international cooperation, and counter-radicalism policies.
Morocco’s most significant human rights problems are lack of citizens’ right to change the
constitutional provisions establishing a monarchical government, corruption in all branches of
government, and widespread disregard for the rule of law by security forces.  
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The Judge reached the following conclusions: It appears that Applicant’s wife is just
referring to the 2007 extra-marital in her letter acknowledging his infidelity.  He still remains
vulnerable to exploitation for his extra-marital affair in 2002, the one he no longer admits.  Under
Guideline E, Applicant has engaged in questionable conduct on a number of occasions.  When
viewed as a whole, Applicant’s personal conduct continues to raise questions about his reliability,
trustworthiness and good judgment.  The evidence presented does not support a conclusion that such
questionable conduct is in the past and is unlikely to recur.  None of the mitigating conditions fully
apply.  Under Guideline D, Applicant’s extra-marital affairs reflect a lack of discretion and
judgment.  He now denies the 2002 extra-marital affair, which potentially makes him vulnerable to
coercion or exploitation.  For the reasons stated under the mitigating conditions for Guideline E,
none of the Guideline D mitigating conditions fully apply.  Under Guideline B, due to the threat of
terrorism and the potential for human rights abuses in Morocco, the presence of Applicant’s family
members in that country creates a heightened risk of foreign exploitation, inducement, manipulation,
pressure or coercion.  Those family members also create a potential conflict of interest with his
obligation to protect sensitive information.  Because of the nature of his close family contacts in
Morocco as well as the terrorist threats and human rights abuses there, Applicant may be placed in
a position of having to choose between foreign interests and the interests of the United States.
Insufficient evidence has been provided to support a conclusion that Applicant would resolve any
potential conflict of interest in favor of U.S. interests.  Applicant’s performance of duties in support
of U.S. forces has been laudable, but it does not rise to the level that would mitigate the security
concerns.
Under a whole-person analysis, Applicant’s inconsistent statements about termination from
employment, his relationship with a woman he met overseas in 2002, and other inconsistencies
reduce the weight that can be given to his testimony.  He has failed to meet his burden of mitigating
the security concerns raised under each guideline.  
Applicant asserts that the Judge’s adverse security clearance decision was not based on
substantial evidence and was therefore arbitrary, capricious, or contrary to law.  He states that the
Judge failed to adequately examine the allegations against him within the overarching concept of
the whole person.  Specifically, Applicant argues that: (1) the job terminations he experienced were
minor incidents and have grown stale with the passage of time; (2) his questionable sexual conduct
has been mitigated as his acts were not criminal, his wife now has knowledge of his transgressions,
there is no longer a basis for coercion, exploitation or duress, and the Judge “attempts to make more
of it than it really is;” (3) regarding foreign influence, he has significant ties to the United States,
he has served in combat zones in support of U.S. interests, and Morocco is a stable and
comparatively moderate Arab Muslim nation whose policies and interests are not inimical to those
of the United  States; and (4) regarding foreign influence, there is no evidence that Morocco has
sought to engage in any military or economic espionage against the United States.  Applicant’s
arguments do not establish error on the part of the Judge.
Applicant states that the positive aspects of his life and career overshadow any behavior on
his part that might be of security concern.  However, the presence of some mitigating evidence does
not alone compel the Judge to make a favorable security clearance decision.  See, e.g., ISCR Case
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No. 06-25157 at 2 (App. Bd. Apr. 4, 2008).  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).  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. 06-17409 at
3 (App. Bd. Oct. 12, 2007).  The arguments Applicant relies on in his brief are largely a
disagreement with the Judge’s interpretation of the record.  In this case, the Judge made sustainable
findings that Applicant had a significant history of conduct that indicated a lack of judgment.  The
Judge concluded that the lack of clear evidence that Applicant’s wife knew of a second extra-marital
affair created an ongoing risk of exploitation or coercion.  This conclusion is supported by the
record.  The Judge also found that Applicant has close ties with immediate family members in
Morocco.  Those ties raise the prospect of conflicts of interest.  Regarding Applicant’s assertion that
Morocco does not actively seek sensitive information from the United States, the Government is not
required to prove a threat of espionage.  See, e.g., ISCR Case No. 02-09907 at 7 (App. Bd. Mar. 17,
2004).    The Judge listed the potentially applicable mitigating conditions and then discussed
applicable components of those factors in his analysis.  Applicant has not demonstrated that the
Judge erred when he weighed the mitigating evidence mitigating against the seriousness of the
disqualifying conduct. 
In support of his appeal, Applicant points to decisions by the Hearing Office, which he
argues support his request for a favorable determination.  The Board gives due consideration to these
cases.  However, each case must be decided on its own merits.  Moreover, Hearing Office decisions
are binding neither on other Hearing Office Judges nor on the Board.  See, ISCR Case No. 06-24121
at 2 (App. Bd. Feb. 5, 2008).   
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
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 ultimate security clearance decision is sustainable.
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Order
The decision of the Judge is AFFIRMED.
Signed: Michael Ra’anan         
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett         
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody           
James E. Moody
Administrative Judge
Member, Appeal Board