ISCR Case No. 09-06992.a1

KEYWORD: Guideline H; Guideline F DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. Adverse decision affirmed. CASENO: 09-06992.a1 DATE: 02/28/2011 DATE: April 28, 2011 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-06992

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 security clearance. On June 8, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 31, 2011, after the hearing, Administrative Judge Mary E. Henry denied Applicant’s request for a security clearance. 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 clearance decision is arbitrary, capricious or contrary to law. Applicant seeks reversal of the Judge’s adverse decision, arguing that his financial problems resulted from the failure of his business due to an economic downturn and that he is taking reasonable steps to solve those problems.1 His argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance 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. 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. See, e.g., ISCR Case No. 08-07753 at 2 (App. Bd. Feb. 25, 2011). In this case, the Judge found that Applicant had a lengthy history of not meeting financial obligations. At the time the case was submitted for decision, Applicant still had significant outstanding debts, and was planning to file for bankruptcy as soon as he could come up with the $3,000 filing fee. Decision at 3-4. In light of the foregoing, the Judge could reasonably conclude that his financial problems were still ongoing. See, e.g., ISCR Case No. 09-05554 at 3 (App. Bd. Mar. 14, 2011). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She found in favor of Applicant under Guideline H and as to five of the SOR allegations under Guideline F. However, she reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. 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. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her 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 unfavorable security clearance decision under Guideline F is sustainable.

The decision of the Judge denying Applicant a security clearance is AFFIRMED. 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: William S. Fields William S, Fields Administrative Judge Member, Appeal Board

1 The Judge’s favorable decision as to the Guideline H allegations is not at issue on appeal.