DKEYWORD: Guideline K; Guideline E
DIGEST: The Judge stated that any evidence must be in the form of documents, including
photographs. However, she stated that she could not accept videos or other media devices
because she was not permitted to use external media on a DoD computer. She advised that he
could testify as to what was on the videos, but he did not offer any testimony in that regard. The
Judge would not be able to preserve a record that included evidence presented in a format that
could not be accessed through DoD computer systems. Other than this, the Judge admitted the
evidence that Applicant offered, including a document sent to her after the hearing. Her
evidentiary rulings were not arbitrary, capricious, or contrary to law. Adverse decision affirmed.
CASENO: 15-03162.a1
DATE: 07/25/2017
DATE: July 25, 2017
In Re:
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Applicant for Security Clearance
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ISCR Case No. 15-03162
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
John Bayard Glendon, Esq., Deputy Chief Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
November 23, 2015, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On April 6, 2017, after the hearing, Defense
Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello denied
Applicant’s request for a security clearance.  Applicant appealed pursuant to Directive ¶¶ E3.1.28
and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge was biased against him;
whether the Judge erred in her evidentiary rulings; and whether the Judge’s adverse decision was
arbitrary, capricious, or contrary to law.  Consistent with the following, we affirm.
The Judge’s Findings of Fact
Applicant has a bachelor’s degree and has completed course work toward a master’s. 
Applicant was commissioned as a military officer in 1979, transferring to the Reserves in 1980.  In
2003, a female enlisted member alleged that Applicant brushed her neck and kissed it without her
consent.  An investigation into the allegation concluded that the misconduct occurred. Applicant
received a reprimand from a general officer.  Applicant testified that the official who conducted the
investigation was biased against him.
In 2004, an administrative board recommended that Applicant be discharged from the
Reserves under other than honorable conditions.  Ultimately, the service secretary awarded
Applicant a general discharge under honorable conditions, although in his answer to the SOR he
stated that he had received an honorable discharge.  He also provided inconsistent statements about
his military rank.  The Judge stated that she would consider these statements in analyzing
Applicant’s credibility, his case for mitigation, and in performing a whole-person analysis.
The Judge made extensive findings of fact concerning SOR allegations that Applicant
violated security rules on numerous occasions, the latest being in late November 2012.  He brought
a camera into a restricted area where cameras were not allowed; he discussed sensitive information
with a foreign national in an unsecured area; he left a foreign national unattended at a computer
which could be switched to a classified system; he failed to store hard drives properly; and he was
evicted from a compound in an overseas area due to his behavior and lax security practices. 
Applicant contended that many of the statements against him were lies spread by persons who did
not like him and were “out to get [him].”  Decision at 10.  
Applicant presented a substantial amount of documentary evidence commending his
professional expertise.  He also presented character letters regarding his competence and courtesy
as well as numerous photographic examples of his work product.
The Judge’s Analysis
The Judge stated that she did not find Applicant’s testimony to be credible.  In evaluating
his case for mitigation, the Judge stated that Applicant had committed various infractions despite
having received prior security training.  She also cited to Applicant’s contentions that “everyone
involved in the allegations does not like him, were out to get him, and were conspiring to have him
removed because he could expose their complicity in nefarious conduct.”  Decision at 13.  Although
the most recent incident was several years old, the Judge stated that it still casts doubt upon his
current reliability.  
In the whole-person analysis, the Judge acknowledged evidence of Applicant’s professional
attainments, his letters of reference, etc.  However, she also noted that Applicant was discharged
from the Reserves with a general discharge, committed various security infractions, and provided
testimony that was not credible.  She stated that the record left her with serious questions about
Applicant’s fitness for a security clearance.
Discussion
Applicant contends that the Judge was biased against him.  He argues that she displayed
hostility to him during the hearing and that she was condescending and adversarial in her demeanor. 
Bias involves partiality for or against a party, predisposition to decide a case or issue without regard
to the merits, or other indicia of a lack of impartiality.  There is a rebuttable presumption that a
Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy
burden of persuasion.  See, e. g., ISCR Case No. 12-10122 at 3 (App. Bd. Apr. 22, 2016).  We have
examined the record as a whole, paying particular attention to the transcript, and find nothing therein
that would likely persuade a reasonable person that the Judge lacked the requisite impartiality. 
While she questioned Applicant sharply at times, it appears to have been in an effort to clarify his
testimony.  Applicant has not met his heavy burden of persuasion.
Applicant contends that the Judge erred in some of her evidentiary rulings.  Among other
things, he argues that the Judge improperly denied him the opportunity to present a videotape that
he believes is essential to his case.  We examine a Judge’s rulings on admissibility of evidence to
see if they are arbitrary, capricious, or contrary to law.  See, e.g., ISCR Case No. 12-02296 at 3
(App. Bd. Mar. 12, 2014).  Prior to the hearing, Applicant sought guidance on the kind of evidence
that he could submit.  The Judge stated that any evidence must be in the form of documents,
including  photographs.  However, she stated that she could not accept videos or other media devices
because she was not permitted to use external media on a DoD computer.  She advised that he could
testify as to what was on the videos, but he did not offer any testimony in that regard.1  Hearing
Exhibit II.  
Under the circumstances, we find no error in the Judge’s ruling on this matter.  A Judge is
obligated to preserve the record for purposes of appeal and other things.  See, e.g., ISCR Case No.
12-04540 at 4, n.3 (App. Bd. Mar. 19, 2014).  The Judge would not be able to preserve a record that
included evidence presented in a format that could not be accessed through DoD computer systems. 
Other than this, the Judge admitted the evidence that Applicant offered, including a document sent
to her after the hearing.  Tr. at 28, 147; HE V.  Her evidentiary rulings were not arbitrary, capricious,
or contrary to law.
Applicant’s appeal includes matters from outside the record, which we cannot consider. 
Directive ¶ E3.1.29.  His arguments consist in large measure of disagreements with the Judge’s
1Of note, before the hearing ended, the Judge asked Applicant whether he had any further evidence to present. 
He continued to testify and presented an exhibit before indicating that he had nothing further.  The Judge admitted the
proffered exhibit.  Tr. at 140-149.  
weighing of the evidence, which is not enough to show that the Judge weighed the evidence in a
manner that was arbitrary, capricious, or contrary to law.  See, e.g., ISCR Case No. 15-08842 at 3
(App. Bd. Feb. 14, 2017).
The Judge examined the relevant evidence and articulated a satisfactory explanation for the
decision.  An applicant who has committed security violations has “a very heavy burden” of
persuasion as to mitigation.  Accordingly, a Judge must give any claims of reform or rehabilitation
“strict scrutiny.”  ISCR Case No. 15-04340 at 3 (App. Bd. Jan. 30, 2017). The decision is sustainable
on this record.  “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).  See also Directive, Encl. 2, App. A ¶ 2(b):  “Any doubt concerning personnel
being considered for national security eligibility will be resolved in favor of the national security.”
Order
The Decision is AFFIRMED.  
Signed: Michael Ra’anan            
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody              
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy                
James F. Duffy
Administrative Judge
Member, Appeal Board