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ISCR Case 08-04804.a1 — CASE

ISCR Case 08-04804.a1denied

Case Headnote

ISCR Case No. 08-04804.a1

Apr 13, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial was based on disqualifying conditions AG F1 and AG E2.

The applicant's appeal affirmed the denial, concluding that the administrative judge's weighing of the evidence was appropriate and not arbitrary or contrary to law. While the applicant presented mitigating evidence, it was deemed insufficient to compel a favorable decision, as the unfavorable evidence outweighed it.

Ultimately, the presence of mitigating evidence does not automatically warrant a favorable decision if the concerns under the applicable guidelines remain unmitigated. The security clearance was therefore denied.

Conditions Referenced

Disqualifying

AG F1raisedFinancial Considerations
AG E2raisedPersonal Conduct

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 issuedJul 23, 2008
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateApr 13, 2009

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· Full written decision

Affirmed

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 decision, stating that the presence of mitigating evidence does not compel a favorable decision and that the Judge's weighing of evidence was not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's decision is claimed to be arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's unfavorable decision, finding it sustainable based on the evidence presented and the Judge's proper weighing of that evidence.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious review

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

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

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

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 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