DATE: January 10, 2017
In Re:
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Applicant for CAC Eligibility
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CAC Case No. 15-06091
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 eligibility for Common
Access Card (CAC) credentialing.  On September 10, 2015, DoD issued a statement of reasons
(SOR) advising Applicant of the basis for that decision–criminal or dishonest conduct concerns and
illegal use of controlled substances concerns, raised under the adjudicative standards in the
appendices of DoD Instruction 5200.46 (Sep. 9, 2014) (Instruction).  Applicant requested a hearing. 
On September 29, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA)
Administrative Judge Robert Robinson Gales granted Applicant’s request for CAC eligibility. 
Department Counsel appealed pursuant to Instruction, Enclosure 4 ¶ 6.
Department Counsel raised the following issue on appeal: whether the Judge’s favorable
decision was arbitrary, capricious, or contrary to law in that it ran contrary to the weight of the
record evidence.  Consistent with the following, we reverse.    
The Judge’s Findings of Fact
Applicant is a 45-year-old employee of a Defense contractor.  He has worked in his current
job since February 2014 and has held CAC eligibility since 2006.  Divorced, he has five children. 
Applicant has a lengthy record of involvement with the law.  The SOR alleges incidents of assault,
including assault and battery with intent to kill; domestic violence; illegal substance charges;
contempt of court; and theft.  The domestic violence charges originated from a dysfunctional
marriage, in which Applicant’s wife would attack him and he would defend himself.  She would call
the police but later refuse to sign the complaints or testify.  Most of the charges were dismissed or
nolle prossed, while others were reduced to lesser offenses.  Applicant was unable to recall the
specifics of many of the allegations due to the passage of time.  
In one of the drug allegations, Applicant was in a bar with some friends.  Someone walked
up to one of the people in the group and gave that person $20.  Applicant borrowed the money in
order to buy food.  Soon after, the police raided the bar and the money that Applicant had borrowed
turned out to have been marked.  He was arrested and charged with distribution of crack and
distribution of crack in the proximity of a school.  Upon advice of counsel Applicant pled guilty to
possession of less than one gram of cocaine, a felony.  The court fined Applicant $5,000 and
sentenced him to five years confinement, suspended.  The other charges were dismissed, nolle
prossed, or resulted in acquittals.
In the other drug allegation, Applicant was being driven to his mother’s home by another
person.  The police pulled the car over and discovered drugs under the driver’s seat.  Though he
denied knowing about the drugs, Applicant was arrested and charged with possession of crack with
intent to distribute, possession with intent to distribute within proximity of a school, and false police
report.  All of the charges were subsequently dismissed, nolle prossed, or resulted in acquittals.
Applicant enjoys an excellent reputation for his work performance as well as his
trustworthiness and integrity.  Applicant’s landlady considers him to be a wonderful tenant, and his
pastor characterizes him as honest and hardworking.  Applicant’s sister related incidents from
Applicant’s youth in which he was harassed by police.  She stated that he has changed from his old
ways.  His girlfriend testified that Applicant is honest about his past mistakes and that he no longer
associates with friends from his former life.  She stated that he has not displayed hostility or used
any controlled substances since she has known him.
      
The Judge’s Analysis
The Judge found that Applicant’s conduct raised criminal or dishonest conduct concerns as
well as drug use concerns.1  In concluding that Applicant had mitigated these concerns, the Judge
1The Judge noted that the allegations did not describe drug use, but possession and distribution.  He concluded,
however, that the evidence was sufficient to raise the following disqualifying conditions: a pattern of drug-related arrests
(Instruction, Enclosure 4, Appendix 2 ¶ 5(b)(2)) and illegal drug possession (Instruction, Enclosure 4, Appendix 2 ¶
5(b)(3).  
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cited to evidence of Applicant’s troubled youth, the participation of his ex-wife in the domestic
violence incidents, Applicant’s character evidence, and the disposition without conviction of many
of the offenses, including all of the ones involving his ex-wife.  He also cited to Applicant’s
exculpatory testimony about the two drug offenses.  The Judge stated that, based on Applicant’s
character evidence, he was convinced that Applicant had been rehabilitated.  Regarding the drug
offenses in particular, the Judge cited to the length of time since their occurrence and Applicant’s
evidence of rehabilitation.   
Discussion
Instruction, Enclosure 4 ¶ 6 provides that appeals to DOHA of CAC cases are accorded the 
established administrative procedures set out in DoD Directive 5220.6, Defense Industrial Personnel
Security Clearance Review Program (Jan. 2, 1992, as amended) (Directive).  Since its inception, the
Appeal Board has been issuing decisions that interpret and analyze the administrative procedures
set forth in the Directive.  Because those same administrative procedures are used in appeals of CAC
cases, our decisions interpreting and analyzing them apply equally here for reviewing a judge’s
actions, rulings, findings, and conclusions in accordance with the Instruction.2     
In a CAC adjudication, “the overriding factor . . . is unacceptable risk.”  Instruction,
Enclosure 4 ¶ 1(b).  The Supplemental Adjudicative Standards, which apply in this case, are
designed to ensure that the issuance of a CAC does not pose such a risk.3  Applying the Directive’s
procedures to CAC adjudications, we hold that once the Government presents evidence raising a 
reasonable basis to believe that an applicant poses a risk within the meaning of the Instruction,4 the
applicant bears the burden of persuasion on the question of whether the risk is unacceptable.5   
In deciding whether the Judge’s rulings or conclusions are erroneous, we will review the
decision to determine whether:  it does not examine relevant evidence; it fails to articulate a
satisfactory explanation for its conclusions, including a rational connection between the facts found
and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it
fails to consider an important aspect of the case; it offers an explanation for the decision that runs
2Decisions of the Appeal Board are available to the public at DOHA’s website:
http://www.dod.mil/dodgc/doha/.
3“In this context, an unacceptable risk refers to an unacceptable risk to the life, safety, or health of employees,
contractors, vendors, or visitors; to the Government’s physical assets or information systems; to personal property; to
records, including classified, privileged, proprietary, financial, or medical records; or to the privacy of such data
subjects.”  Instruction, Enclosure 4 ¶ 2(b).
4Directive ¶ E3.1.14:  “Department Counsel is responsible for presenting witnesses and other evidence to
establish the facts alleged in the SOR that have been controverted.”   
5Directive ¶ E3.1.15:  “The applicant is responsible for presenting witnesses and other evidence to rebut,
explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate
burden of persuasion as to obtaining a favorable . . . decision.”  
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contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference
of opinion.  See, e.g., CAC Case No. 15-00895 at 3 (App. Bd. Nov. 16, 2016).    
Turning to the case before us, Applicant’s conduct is alleged to raise concerns under two
sections of the Instruction.  Instruction, Enclosure 4, Appendix 2 ¶ 2 provides that a “CAC will not
be issued to a person if there is a reasonable basis to believe, based on the individual’s criminal or
dishonest conduct, that issuance of a CAC would pose an unacceptable risk.” (emphasis added)  
Instruction, Enclosure 4, Appendix 2 ¶ 5 provides that a “CAC will not be issued to a person if there
is a reasonable basis to believe, based on the nature or duration of the individual’s illegal use of
narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation, that
issuance of a CAC poses an unacceptable risk.”  In this case, the Judge’s conclusion that the
Government had produced evidence sufficient to raise a reasonable belief that Applicant poses a risk
to persons or property is not at issue.  It is his conclusion that Applicant has met his burden of
persuasion that this is not unacceptable that Department Counsel has appealed.     
Department Counsel argues that the Judge did not evaluate the evidence as a cumulative
whole.  Rather, he argues that  the Judge considered the various instances of misconduct in isolation
from one another.  
An Administrative Judge must consider all of the facts as a whole, rather than
analyzing each separate aspect in a piecemeal fashion.  In this instance, only by
intentionally parsing the facts in a manner that individually rationalizes a series of
similar events could the Administrative Judge have reached the conclusion that
Applicant’s multiple arrests were mitigated.  Appeal Brief at 6.
We find merit in this argument.  We conclude that Instruction, Enclosure 4 ¶ 1 requires a
Judge to consider an applicant’s conduct and/or circumstances as a whole rather than in a piecemeal
fashion. Though in the case before us, the Judge devoted considerable space to his analysis of
Applicant’s misconduct, he did not address it in its cumulative significance.  We note his findings,
and record evidence supporting those findings, that Applicant was arrested on numerous occasions
for assault, including one time for assault and battery with intent to kill; for offenses involving
illegal drugs; for theft; and for contempt of court, one instance of which was due to delinquency in
child support payments.  Tr. at 64.  These offenses occurred over a period of twenty years or more,
his most recent assault having taken place at a time when he was in his forties.  
The Judge noted the relative age of many of the allegations.  However, reliance upon this
would have more force were those the only ones at issue.  A Judge must evaluate whether
misconduct has been attenuated by time in light of more recent offenses, subsequent misconduct
being of a nature to impugn an applicant’s effort at rehabilitation.  As it stands, the Judge’s treatment
of Applicant’s misconduct did not do justice to its lengthy history and to its persistence into his adult
maturity, and he did not address the extent to which the sheer volume of Applicant’s infractions
enhances the significance of incidents which, in and of themselves, might have been of limited
concern, such as old instances of assault in which he ex-wife may have born some responsibility. 
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The record supports Department Counsel’s argument that the Judge performed a piecemeal analysis
of Applicant’s misconduct, thereby failing properly to engage the record as a whole.   
Department Counsel cites to other deficiencies in the Judge’s analysis.  He notes that much
of Applicant’s presentation consisted of uncorroborated claims of factual innocence.  He argues that,
as a consequence, the Judge’s decision appears to rest in large measure upon a favorable credibility
determination.  The Directive requires us to give deference to a Judge’s credibility determinations. 
Directive ¶ E3.1.32.1.  However, that deference is not without limits.  It would be arbitrary and
capricious to accept uncritically a witness’s testimony without considering whether it is plausible
and consistent with other evidence.  See, e.g., ISCR Case No. 14-01894 at 6 (App. Bd. Aug. 18,
2015). Where the record contains a basis to question an applicant’s credibility the Judge should
address that aspect of the record explicitly, explaining why he finds an applicant’s version of events
to be worthy of belief.  Failure to do so suggests that a Judge has merely substituted a favorable
impression of the applicant’s demeanor for record evidence.  See, e.g., ISCR Case No. 14-04437 at
4-5 (App. Bd. Apr. 15, 2016).  
In this case, the record contains reasons to question the extent to which Applicant’s
presentation was worthy of belief, such as inconsistent statements.  See ISCR Case No. 14-01056
at 3 (App. Bd. Aug. 17, 2015) regarding the significance of inconsistent statements in evaluating
credibility.  We note, for example, that Applicant attributed the earliest SOR allegation, an assault,
to the conduct of his ex-wife.  “The arrest . . . [was] due to my ex-wife at the time [she] called the
police after an argument that did not result in any physical altercation.”  Answer to SOR, dated
October 21, 2015, at 1.  At the hearing, however, he claimed to have no memory of this incident. 
Q: Tell me what happened on that day? . . . 
A:  That was a long time ago to be honest . . . 
Q: What is it that you remember?  
A:  To be honest with you I really don’t remember the situation at all . . . 
Q:  . . . [Y]ou don’t even remember who was involved with that incident . . . 
A:  No . . . I don’t.  Tr. at 44.
The Judge did not address the apparent conflict between Applicant’s testimony and his SOR answer. 
Neither did he address another inconsistency.  In the SOR Answer concerning the allegation of theft
of electrical current, Applicant stated as follows: “I deny.  I did not reside nor was anyone residing
in the home in which the officer questioned me[.]” SOR Answer at 2.  The most reasonable
interpretation of this answer is that Applicant was charged for a theft of electrical power that took
place at a location where his presence was purely fortuitous and that he was factually innocent. 
However, at the hearing, he admitted his guilt.  “Yeah, I did do it.  I put the meter in the house.  I
did it . . I knew it was illegal.  I did it.”  Tr. at 82.  While a Judge cannot be expected to address
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every piece of evidence, which would be an impossibility, he should note evidence that a reasonable
person would expect to be taken into account.  In this case, Applicant’s inconsistencies were not
minor but, rather, were such that a reasonable review of the evidence should have disclosed them. 
Each applicant provides an answer to the SOR, and some, like Applicant, provide detailed
comments.  It is not unreasonable to expect that a Judge has considered an applicant’s testimony in
light of any prior comments and to have noted any obvious inconsistencies among them.  The
Judge’s failure to have included a discussion of these inconsistencies among Applicant’s various
statements impairs his credibility determination and, accordingly, his favorable ultimate conclusions.
Another significant matter that undermines Applicant’s credibility is his claims of innocence
regarding the vast majority of the allegations.  As stated above, Applicant testified that he did not
commit the underlying misconduct regarding the assaults, including the assault and battery with
intent to kill.  At worst, he described mutual affrays, some of which he claimed to have been acting
in self-defense. He also denied having committed the drug allegations, contending that he had been
an innocent bystander on both occasions.  His claims of innocence extended even to incidents in
which he was found guilty at trial.  The sheer number of these claims raises a serious question as to
whether Applicant was being truthful in his denials, both in his Answer to the SOR and in his
hearing testimony.  
It is not impossible for a person to find himself at the wrong place at the wrong time,
resulting in criminal liability.  However, when a person asserts, without corroboration, that this is
a regular and ongoing feature of his life, a Judge should rigorously scrutinize whether such
assertions are credible.  See ISCR Case No. 13-00596 at 5-6 (App. Bd. Jun. 26, 2015), a security
clearance decision that is persuasive authority for the proposition that the multiple nature of criminal
charges is a reason to doubt an applicant’s claims of innocence.  In the cited case, the applicant had
been charged with numerous criminal offenses which he claimed that he had never committed.  We
noted a comment by a Hearing Office Judge that it was improbable for a person to be charged more
than once based purely on accidental circumstances.  “Such scepticism is even more warranted when
the innocent explanations have multiplied to the extent present [here].”  Id.  In the case currently
under review, the Judge should have extended similar scepticism to Applicant’s testimony that he
had not committed many of the offenses for which he was charged.  That he did not do so fatally
undermines his analysis.  For example,  the Judge concluded that Applicant had shown
rehabilitation, particularly in regard to the drug offenses.  However, if Applicant were in fact
innocent to the extent that he claimed, it is not clear from what he has rehabilitated himself.  
The Judge cited to evidence that many of the charges had been dismissed or nolle prossed. 
 However, evidence that charges have been dismissed, in and of itself, is not a meaningful basis to
conclude that the defendant did not commit the offenses, insofar as charges can be resolved without
conviction for many reasons other than innocence.  See, e.g., ISCR Case No. 10-05039 at 3 (App.
Bd. Oct. 17, 2011) for the proposition that dismissal of charges is not inconsistent with guilt.  Under
the facts of this case, the extensive and long-standing nature of Applicant’s infractions diminishes
the weight to which the dismissals were entitled on the question of factual guilt or innocence.  Based
on the above, we find persuasive Department Counsel’s argument that the Judge’s credibility
determination did not take into account contrary evidence, thereby detracting from his favorable
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findings and conclusions.6  This lends force Department Counsel’s argument that the Judge
substituted a favorable impression of Applicant’s demeanor at the hearing for record evidence.  
To sum up, Applicant was arrested and/ or charged with numerous offenses over a period
of two decades.  These included assault, one of which was charged as assault and battery with intent
to kill.  The most recent, in 2011, occurred at a time when Applicant held a CAC and, therefore,
enjoyed access to Government installations.  These assault allegations involved three different
victims–Applicant’s ex-wife, a girlfriend, and an unidentified man.  Tr. at 48, 60.  He was charged
twice for crimes involving illegal drugs, including distribution of crack cocaine in the vicinity of a
school. He was charged with contempt of court, one instant arising from his having failed to make
child support payments.  Applicant has spent time in jail, testifying that during one week he was
jailed every single night due to allegations of assault.  Tr. at 53.  These incidents are reasons to
believe that Applicant’s presence on a Government installation poses a risk to persons or property. 
Applicant’s presentation included inconsistent statements and other reasons to doubt his
credibility, such as denials of culpability that a reasonable person could find to be self-serving.  This
evidence undercuts Applicant’s effort to show rehabilitation and significantly impairs his effort to
show that the risks associated with his misconduct are acceptable.  The Judge’s decision failed to
consider important aspects of the case and ran contrary to the weight of the evidence, viewed as a
whole.  Given the totality of the evidence, the Judge’s conclusion that Applicant had met his burden
of persuasion that he did not pose an unacceptable risk is unsustainable. 
6Another reason to question the Judge’s credibility determination is Applicant’s claims of faulty memory.  As
noted above, despite having discussed the July 1991 assault in his SOR Answer, Applicant testified that he remembered
nothing about it.  At one point he testified that he did not remember whether any of the incidents with his ex-wife
involved physical altercations.  Tr. at 57.  He also initially denied memory of the assault that took place in mid-2011. 
Tr. at 60-61. The Judge did not discuss whether these claims were worthy of belief or whether they actually detracted
from Applicant’s presentation.  
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Order
The Decision is REVERSED.   
Signed: Michael Y. Ra’anan          
Michael Y. 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
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