DATE: July 24, 2006
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SSN: ----------
Applicant for Security Clearance
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Peregrine D. Russell-Hunter, Esq., Chief Department Counsel
FOR APPLICANT
Gary L. Rigney, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 17, 2003, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision--security concerns raised under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)(Directive). Applicant requested a hearing. On January 26, 2006, after the hearing, Administrative Judge Paul J. Mason denied Applicant's request for a security clearance. (1) Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Administrative Judge's adverse clearance decision under Guidelines E is arbitrary, capricious or contrary to law.
Applicant argues that the Administrative Judge's adverse clearance decision should be reversed because the Applicant did not deliberately or intentionally make false statements in a signed, sworn statement to a government investigator and in two employment applications. Rather, it is Applicant's contention that the perceived errors or omissions resulted from the confusion, inexperience, and haste of the Applicant when he executed the documents, or were erroneous findings on the part of the Judge. Applicant also argues that the Judge should have concluded that the security concerns raised under Guidelines E had been mitigated, as a matter of law, under the whole person concept because of his highly favorable character and professional references. The Board does not find Applicant's arguments persuasive.
The findings which Applicant challenges are either permissible characterizations by the Administrative Judge or harmless error, in that they would not be reasonably likely to change the outcome of the case. Applicant has not met his burden of demonstrating that the Administrative Judge's material findings with respect Applicant's conduct of security concern do not reflect a reasonable or plausible interpretation of the record evidence. The Board does not review a case de novo. Considering the record evidence as a whole, the Judge's material findings of security concern are sustainable.
Applicant's statements about his intent and state of mind when he executed the documents in question were relevant evidence, but they were not binding on the Administrative Judge. See, e.g., ISCR Case No. 01-19278 at 6-7 (App. Bd. Apr. 22, 2003). As the trier of fact, the Judge had to consider Applicant's statements in light of the record evidence as a whole, and Applicant's denial of any intent to provide false information did not preclude the Judge from weighing the record evidence and making findings that contradicted Applicant's denials. The security concerns raised by Applicant's falsification were not necessarily mitigated by Applicant's subsequent disclosures to the government. See ISCR Case No. 01-19513 at 5 (App. Bd. Jan. 22, 2004). Similarly, such concerns were not necessarily mitigated by Applicant's favorable professional and work record. See, e.g., ISCR Case No. 01-01642 at 6 (App. Bd. Jun. 14, 2002).
The application of disqualifying and mitigating conditions and whole person factors 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 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.
In this case, 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 mitigating conditions and whole person factors. The Judge found in Applicant's favor with respect to many of the SOR allegations. However, the Judge articulated a rational basis for not favorably applying any mitigating conditions or whole person factors with respect to three of the Guideline E allegations, and reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government's security concerns. Given the record that was before him, the Judge's ultimate unfavorable clearance decision under Guideline E is not arbitrary, capricious or contrary to law.
The decision of the Administrative Judge denying Applicant a clearance is AFFIRMED.
Signed: Jeffrey D. Billett
Jeffrey D. Billett
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
1. The Administrative Judge found in favor of Applicant under Guideline J and with respect to SOR paragraphs 2.a and 2.e. Those favorable findings are not at issue on appeal.