KEYWORD: Guideline K; Guideline M
DIGEST: The Judge’s resolution of evidentiary conflicts and his findings of fact are sustainable. 
An ability to argue for an alternative interpretation of the evidence is not enough to show that the
Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. 
Adverse decision affirmed.
CASE NO: 14-00963.a1
DATE: 01/13/2015
DATE: January 13, 2015
In Re:
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Applicant for Security Clearance
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ISCR Case No. 14-00963
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
April 28, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision—security concerns raised under Guideline K (Handling Protected Information), and
Guideline M (Use of Information Technology Systems) of Department of Defense Directive 5220.6
(Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On October 10, 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.  
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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:  Applicant is 52 years old.  From 1982 to 2011 he
worked as a drafter for Company A.  Throughout the years, he signed nondisclosure agreements and
knew he was obligated to protect the company’s proprietary information.  While working at
Company A, Applicant would routinely backup computer data to a Company A external hard drive.
Late in 2011, Applicant decided to leave Company A and to begin employment with Company B,
a competitor.  In the weeks and days before resigning from Company A, Applicant transferred or
copied all the projects that he worked on for his own personal reference.  A lot of backups occurred
on the afternoon of his departure.  Applicant also copied data from a Company A computer onto his
personal thumb drive, which he then uploaded at Company B for use at Company B.  He did not
have authority to do this.
Applicant’s statements about what happened to the Company A external hard drive after he
left Company A are inconsistent.  In an OPM interview, Applicant indicated that he used a checklist
when departing Company A and turned in all of Company A’s property except the external hard
drive because it had been packed away in the boxes used for his personal items.  He also indicated
in the interview that he told the Company A human resources supervisor that he would return the
external hard drive when he found it after going through the boxes.  According to Applicant’s initial
hearing testimony the hard drive had been inadvertently placed in one of the boxes or his briefcase.
He then testified that he learned he had the external drive when he saw it in his garage on either the
night he left Company A or the next day.  He testified that he procrastinated in reporting to the head
of human resources of Company A that he had found the external hard drive in his garage.  In
subsequent testimony, Applicant indicated that he realized he had the external drive “within a week
or a month” later while he was at Company B.  The hard drive was eventually seized by the FBI
while it was in Applicant’s possession at Company B.  
About a month after leaving Company A, Applicant ran into an employee of Company A
and, based on their conversation, Applicant assumed an inquiry was being conducted that involved
him.  Subsequent to the conversation, Applicant reported to the head of human resources at
Company A that he had the external hard drive. Two days later, Applicant was contacted by agents
from the FBI.  The external hard drive was then seized by the FBI while it was in Applicant’s
possession at Company B.
Applicant stated that he had no bad intentions when copying files and he did not transfer the
files to take away any of Company A’s property or business.  Applicant is not a credible witness.
The Judge reached the following conclusions: Sufficient circumstantial evidence exists to
establish that Applicant took the external hard drive from Company A without permission.  His
actions in backing up “a bunch of stuff” to the external hard drive on the afternoon of the day he was
leaving Company A is suspicious.  Sufficient circumstantial evidence exists to conclude that
Applicant’s conversation with the Company A employee is what prompted him to report to the head
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of human resources that he had the external hard drive. Applicant’s testimony is entitled to little
weight given the inconsistencies contained therein and elsewhere.  Furthermore, Applicant’s
testimony regarding the personal thumb drive establishes that he had the intent to take property from
Company A without its knowledge or authorization.  When the above pieces are put together, the
picture becomes clear that Applicant intentionally took the external hard drive from Company A.
Applicant had no authority to take Company A proprietary data or official government
information on the external hard drive and store that information at Company B.  Applicant knew
that he should not have taken sensitive data from Company A to Company B, but he intentionally
did so.  Applicant’s conduct is recent and casts doubt on his reliability, trustworthiness, and good
judgment.  No evidence of counseling or remedial security training was offered.  None of the
mitigating conditions under either Guideline K or Guideline M apply.  His actions were a breach of
trust.  The record establishes unmitigated questions and doubts about Applicant’s suitability for a
security clearance.
Applicant asserts on appeal that he attempted to return the Company A hard drive before
anyone told him that the FBI was looking into his activities.  The Board construes this as a challenge
to the Judge’s finding of fact that Applicant took steps to notify Company A about his possession
of the hard drive and to arrange its return after learning from a Company A employee that the matter
was being investigated.  The Judge was required in this case to resolve conflicts in the evidence and
to make findings based on circumstantial evidence.  After a review of the record and the Judge’s
decision, the Board concludes that the Judge’s evaluation of the evidence and his finding are
sustainable.
Applicant states that he made a slight error in judgment, and that he now realizes his error.
He argues that Company A turned him in as a result of his role as a whistleblower, and he cites to
transgressions that the company was engaged in and was attempting to cover up.  He states that he
is worthy of his security clearance and is deserving of a second chance.  Applicant’s assertions do
not establish error on the part of the Judge
The Board finds no reason to believe that the Judge did not properly weigh the evidence or
that he failed to consider all the evidence of record.  See, e.g., ISCR Case No. 11-06622 at 4 (App.
Bd. Jul. 2, 2012).  We have considered the totality of Applicant’s arguments on appeal and find no
error in the Judge’s ultimate conclusions regarding mitigation.  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 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
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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 unfavorable security clearance decision is sustainable.
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