A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 08-04804.a1
Appeal BoardDecided Apr 13, 2009 · Administrative Judge Michael Y. Ra'anan · Appeal
Case headnote
Summary
The applicant, representing himself, sought a security clearance but was denied based on concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The appeal affirmed the denial, emphasizing that the presence of mitigating evidence does not automatically warrant a favorable decision if the unfavorable evidence outweighs it.
Why the applicant was denied
- The applicant's mitigating evidence was insufficient to compel a favorable decision.
- The Judge's weighing of evidence was deemed appropriate and not arbitrary or contrary to law.
Conditions referenced
Disqualifying
- AG F1 Financial Considerationsraised
- AG E2 Personal Conductraised
Key rule quoted
“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”
Procedural posture
- SOR issued
- 2008-07-23
- Answer filed
- Hearing held
- Applicant requested a decision on the written record.
- Decision date
- 2009-04-13
Cite for
- Affirmation of the Judge's Decision Based on the Weighing of Evidence
- Insufficiency of Mitigating Evidence to Compel a Favorable Decision
- Clarification on the Appellate Review Process Regarding New Evidence
Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.
Appeal at a glance
The appeal was from a denial of a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, stating that the presence of some mitigating evidence does not alone compel a favorable decision and that the Judge's conclusions were supported by substantial evidence.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
Open original PDFThe complete official text, footnotes and signatures included, is in the original PDF.
Decision text, by section
Synopsis
KEYWORD: 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: 08-04804.a1 DATE: 04/13/2009 DATE: April 13, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04804
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 security clearance. On July 23, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. After considering the record, Administrative Judge Mark W. Harvey denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant’s appeal brief discuses various matters not contained in the record. The Board cannot consider new evidence on appeal. See Directive E3.1.29. Applicant’s brief does not discuss the Judge’s decision but raises evidence of mitigation. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007).
The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge’s ultimate unfavorable security clearance decision is sustainable.
Order
The decision of the Judge is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board