KEYWORD: Guideline F
DIGEST: Applicant’s disagreement with the Judge’s weighing 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: 15-01270.a1
DATE: 06/16/2016
DATE: June 16, 2016
In Re:
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Applicant for Public Trust Position
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ADP Case No. 15-01270
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 trustworthiness designation. 
On August 21, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for
that decision—trustworthiness concerns raised under Guideline F (Financial Considerations) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a decision of the written record.  On March 30, 2016, after considering the record,
Administrative Judge John Grattan Metz, Jr. denied Applicant’s request for a trustworthiness
designation.  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 trustworthiness
decision is arbitrary, capricious, or contrary to law.
Applicant argues that the Judge’s adverse decision should be reversed because she had filed
all of her overdue Federal and state income tax returns prior to the decision in her case.  In support
of her argument she asserts that there are no factors in her work record or other matters in her
personal life to support a finding of untrustworthiness and she was candid about her failure to file
her tax returns in a timely manner during the application process.  Applicant’s argument does not
demonstrate that the Judge’s ultimate adverse decision is arbitrary, capricious, or contrary to law.
Applicant’s August 21, 2015 SOR alleged that she had failed to file her Federal and state
income tax returns, and pay any taxes due thereon, for tax years 2007 through 2011.  Applicant
elected to have her case decided on the written record and the government sent her its File of
Relevant Material (FORM) on October 28, 2015.  In her November 25, 2015 response to the
government’s FORM, Applicant documented that she had filed her back Federal and state tax returns
on September 22, 2015, and paid any back taxes that were due on November 21 and 23,
2015—several days before her response to the FORM was due.  In reaching his adverse decision,
the Judge gave particular weight to the fact that “the situation reported by Applicant’s accountant
[was] vastly different from Applicant’s account.”  Decision at 2.  He also noted that she had
“provided no budget or personal financial statement indicating her family’s financial situation,” had
“not documented any credit or financial counseling,” and had “provided no work or character
references, or evidence of civic or community involvement.”  Id. 
Once the government presents evidence raising trustworthiness concerns, the burden shifts
to the applicant to establish mitigation.  Directive ¶ E3.1.15. The presence of some mitigating
evidence does not alone compel the Judge to make a favorable trustworthiness 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., ADP Case No. 07-06039 at 4 (App. Bd. Jul.
8, 2008).
The Judge weighed the available mitigating evidence offered by Applicant against the length
and seriousness of the disqualifying circumstances and considered the possible application of
relevant conditions and factors.  He reasonably explained why the mitigating evidence was
insufficient to overcome the government’s trustworthiness concerns.  Id. at 3-5.  
The Board does not review a case de novo.  The Judge’s unfavorable trustworthiness
determination is sustainable.  The standard applicable to trustworthiness cases is that set forth in
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) regarding security clearances: such a
determination “. . . may be granted only when ‘clearly consistent with the interests of the national
security.’” See, e.g., ADP Case No. 14-03541 at 3 (App. Bd. Aug. 3, 2015).  See also Kaplan v.
Conyers, 733 F.3d 1148 (Fed. Cir. 2013), cert. denied.
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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: James F. Duffy                                               
              James F. Duffy
Administrative Judge
Member, Appeal Board
Signed: William S. Fields         
William S. Fields
Administrative Judge
Member, Appeal Board
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