ISCR Case No. 16-01251

KEYWORD: Guideline F DIGEST: The Judge found in favor of Applicant as to eight of the SOR factual allegations. However, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s trustworthiness concerns. Adverse decision affirmed. CASENO: 16-01251 DATE: 06/07/2017 DATE: June 7, 2017 In Re: ---------------- Applicant for Trustworthiness Designation ) ) ) ) ) ) ) ) ADP Case No. 16-01251

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a trustworthiness designation. On July 20, 2016, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 7, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious or contrary to law. Applicant requests that the Judge’s adverse determination be reversed based on her excellent work history, lack of trustworthiness rules violations, and the effort she has made to resolve her financial problems. Her arguments do 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 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. 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., ADP Case No. 14-00860 at 2 (App. Bd. Mar. 12, 2015). In this case, the Judge reasonably 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. He made findings about the matters noted in Applicant’s brief and discussed them in his analysis. Decision at 2-9. The Judge found in favor of Applicant as to eight of the SOR factual allegations. However, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s trustworthiness concerns. Id. 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. See, e.g., ADP Case No. 14-00860 supra at 2. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision. The standard applicable to trustworthiness cases is that set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) regarding security clearances: such a determination “may be granted only when ‘clearly consistent with the interest of national security’.” See, e.g., ADP Case No. 15-06611 at 3 (App. Bd. May 8, 2017). See also Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013), cert. denied.

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Member, 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