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ISCR Case 04-12255.a1 — CASE

ISCR Case 04-12255.a1denied

Case Headnote

ISCR Case No. 04-12255.a1

deniedSep 10, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a trustworthiness designation for a public trust position due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). These concerns stemmed from his possession of a Yemeni passport and his family ties in Yemen.

The appeal board upheld the Administrative Judge's decision to deny the designation. The board found that the applicant failed to sufficiently mitigate the trustworthiness concerns raised by his foreign ties, specifically citing Disqualifying Conditions AG ¶ 6 and AG ¶ 7.

The denial was based on the applicant's inability to demonstrate that the Judge's adverse decision was arbitrary, capricious, or contrary to law. Furthermore, the applicant's favorable evidence was deemed insufficient to outweigh the disqualifying circumstances, and the Judge's reasoning for this determination was found to be sound.

Why the Applicant Was Denied

The applicant did not demonstrate that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
The applicant's favorable evidence was insufficient to mitigate the trustworthiness concerns related to his foreign ties.
The Judge reasonably explained why the mitigating evidence did not outweigh the disqualifying circumstances.

Conditions Referenced

Disqualifying

AG ¶ 6raisedForeign Influence
AG ¶ 7raisedForeign Preference

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable trustworthiness determination.”
— ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003)

Procedural Posture

SOR issuedOct 5, 2006
Answer filed—Applicant represented himself.
Hearing heldMar 20, 2007Decision based on written record.
Decision dateSep 10, 2007

Cite For

Trustworthiness Concerns Related to Foreign Ties Under Guidelines B and C
Insufficient Mitigation of Trustworthiness Concerns
The Standard for Weighing Mitigating Evidence Against Disqualifying Circumstances

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline C; Guideline B DIGEST: Favorable record evidence cited by Applicant is not sufficient to demonstrate that the Judge adverse decision is erroneous. Adverse decision affirmed. CASENO: 04-12255.a1 DATE: 09/10/2007 DATE: September 10, 2007 In Re: --------------- Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 04-12255

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a trustworthiness designation. On October 5, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness concerns raised under Guideline The Judge found in favor of Applicant with respect to SOR paragraph 2.c. That favorable finding is not at issue on appeal. C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided upon the written record. On March 20, 2007, after considering the record, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a trustworthiness designation. Applicant timely 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 determination under Guidelines C and B is arbitrary, capricious or contrary to law.1 Applicant argues that the Judge erred in concluding that he had not mitigated the trustworthiness concerns raised under Guidelines C and B. In support of this argument, Applicant summarizes the favorable evidence he presented below. The Board does not find Applicant’s argument persuasive. The Applicant has not met his burden of demonstrating that the Judge erred in concluding that the trustworthiness concerns raised by his possession of a Yemeni passport, and his family ties and property interests in Yemen, had not been mitigated. Although Applicant strongly disagrees with the Judge’s conclusions, he has not established that those conclusions are arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 01- 14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable trustworthiness determination. 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. An applicant’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. In this case, the Judge weighed the mitigating evidence offered by Applicant against the nature and seriousness of the disqualifying circumstances, and considered the possible application of relevant mitigating conditions. The Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s trustworthiness concerns. The Board does not review a case de novo. The favorable record 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. 02-28041 at 4 (App. Bd. Jun. 29, 2005). Given the record that was before her, the Judge’s ultimate unfavorable trustworthiness determination under Guidelines C and B is sustainable.

ORDER

The decision of the Judge denying Applicant a trustworthiness designation is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board