KEYWORD: Criminal Conduct
DIGEST: The Applicant was arrested in 1992 and 2004 for assault.  The Applicant does not have
a pattern of criminal conduct.  The two incidents were isolated in nature and the evidence shows that
there is little to no chance that they will recur.  Adverse inference is overcome.  Clearance is granted.
CASENO: 05-09564.h1
DATE: 01/10/2007
DATE: January 10, 2007
In Re:
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SSN: ----------------
Applicant for Security Clearance
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ISCR Case No. 05-09564
DECISION OF ADMINISTRATIVE JUDGE
WILFORD H. ROSS
APPEARANCES
FOR GOVERNMENT
Jennifer I. Goldstein, Esquire, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
The Applicant was arrested in 1992 and 2004 for assault.  The Applicant does not have a
pattern of criminal conduct.  The two incidents were isolated in nature and the evidence shows that
there is little to no chance that they will recur.  Adverse inference is overcome.  Clearance is granted.
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STATEMENT OF THE CASE
On December 7, 2005, the Defense Office of Hearings and Appeals (DOHA), pursuant to
Executive Order 10865 (as amended) and Department of Defense Directive 5220.6 (Directive), dated
January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why
DOHA could not make the preliminary affirmative finding under the Directive that it is clearly
consistent with the national interest to grant or continue a security clearance for the Applicant and
recommended referral to an Administrative Judge to determine whether a clearance should be denied
or revoked.
The Applicant responded to the SOR in writing on December 14, 2005, and requested that
his case be decided without a hearing.  Subsequently, on April 12, 2006, the Applicant requested to
have a hearing.  The case was originally assigned to another Administrative Judge on May 1, 2006.
The case was reassigned to the undersigned on July 6, 2006, and a Notice of Hearing was issued on
August 22, 2006.
A hearing was held on September 13, 2006, at which the Government presented three
documentary exhibits (Government Exhibits 1 through 3).  Testimony was taken from the Applicant,
who called one additional witness, and also submitted two hearing exhibits (Applicant’s Exhibits
A and B) and one post-hearing exhibit (Applicant’s Exhibit C).  The transcript was received on
September 25, 2006. 
FINDINGS OF FACT
The Applicant is 46, single and has a Bachelor of Science degree.  He is employed by a
defense contractor, and he seeks to retain a DoD security clearance previously granted in connection
with his employment in the defense sector.
The Government opposes the Applicant's request for a continued security clearance, based
upon the allegations set forth in the Statement of Reasons (SOR).  The following findings of fact are
entered as to each paragraph and guideline in the SOR.  They are based on the Applicant's Answer
to the SOR, the exhibits and the live testimony.
Paragraph 1 (Guideline J - Criminal conduct).  The Government alleges in this paragraph that the
Applicant is ineligible for clearance because he has engaged in criminal acts.
The record shows that the Applicant was arrested in 1992 on a charge of battery.
(Government Exhibit 2.)  The Applicant does not deny this arrest.  He credibly testified that he had
no clear memory of the incident which resulted in the charge, nor could he remember the disposition
of the charge.  The Applicant further testified that he had contacted the city where the arrest took
place to find out more information.  However, based on the age of the incident, none could be found.
The city police department forwarded documents to the Applicant that would enable him to have the
record, if any, expunged.  (Transcript at 32-34, 46-48; Applicant’s Exhibit B.)  There is no evidence
as to the ultimate disposition of this charge.
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The Applicant was involved in a physical altercation with his then 18 year old son in March
2004.  According to the Applicant, his son attacked him with a baseball bat and the Applicant had
to defend himself.  The police were called and the Applicant was arrested for Domestic Violence
Assault.  He plead guilty to an amended charge of Disorderly Conduct and was sentenced to a
suspended jail term, two years of probation, a fine, ordered to attend an anger management course
and to have no contact with his son for 180 days.  (Transcript at 34-36.)  The Applicant successfully
completed the anger management course in July 2004.  (Applicant’s Exhibit C at 4.)
Prior to this incident, the Applicant had a Protective Order issued concerning his son in 2003.
Part of the reasoning behind obtaining this order was because his son had threatened the Applicant
with a baseball bat.  (Transcript at 36, Applicant’s Exhibit A.)  The Applicant’s son has left that
house and now has a better relationship with the Applicant.
Mitigation.
The Applicant submits that the two incidents described above are the only ones in his record.
He is an honorably retired member of the US Air Force.
Documentary evidence was submitted by the Applicant showing that his state of residence
has granted his partner approval to run a day care center at the Applicant’s house.  This approval was
granted in 2006, after the date of the Domestic Violence arrest.  (Applicant’s Exhibit C at 5-6.)
Written statements from superiors and co-workers were submitted by the Applicant.  He is
described as “reliable, diligent and extremely professional” by a senior military officer.  (Appellant’s
Exhibit C at 8-9.)  Testimony from a co-worker, and the other statements contain similar statements.
(Appellant’s Exhibit C at 10-19.)
POLICIES
Security clearance decisions are not made in a vacuum.  Accordingly, the Department of
Defense, in Enclosure 2 of the 1992 Directive, has set forth policy factors which must be given
"binding" consideration in making security clearance determinations.  These factors should be
followed in every case according to the pertinent guideline.  However, the factors are neither
automatically determinative of the decision in any case, nor can they supersede the Administrative
Judge's reliance on his own common sense, as well as his knowledge of the law, human nature and
the ways of the world, in making a reasoned decision.  Because each security clearance case presents
its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm
of human experience, or apply equally in every case.  Based on the Findings of Fact set forth above,
the factors most applicable to the evaluation of this case will be set forth under CONCLUSIONS,
below.
In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, “In evaluating the
relevance of an individual’s conduct, the [Administrative Judge] should consider the following
factors [General Factors]:
a. The nature, extent and seriousness of the conduct
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b. The circumstances surrounding the conduct, to include
knowledgeable participation
c. The frequency and recency of the conduct
d. The individual’s age and maturity at the time of the conduct
e. The voluntariness of participation
f. The presence or absence of rehabilitation and other pertinent
behavior changes
g. The motivation for the conduct
h. The potential for pressure, coercion, exploitation or duress
i. The likelihood of continuation or recurrence.”
The eligibility guidelines established in the DoD Directive identify personal characteristics
and conduct which are reasonably related to the ultimate question of whether it is "clearly consistent
with the national interest" to grant an Applicant's request for access to classified information.
In the defense industry, the security of classified industrial secrets is entrusted to civilian
workers who must be counted upon to safeguard such sensitive information twenty-four hours a day.
The Government is therefore appropriately concerned where available information indicates that an
Applicant for clearance may be involved in criminal acts that demonstrate poor judgement,
untrustworthiness or unreliability on the Applicant's part.
The DoD Directive states, "Each adjudication is to be an overall common sense
determination based upon consideration and assessment of all available information, both favorable
and unfavorable, with particular emphasis placed on the seriousness, recency, frequency, and
motivation for the individual's conduct; the extent to which conduct was negligent, willful,
voluntary, or undertaken with the knowledge of the circumstances or consequences involved; and,
to the extent that it can be estimated, the probability that conduct will or will not continue in the
future."  The Administrative Judge can only draw those inferences or conclusions that have a
reasonable and logical basis in the evidence of record.  The Judge cannot draw inferences or
conclusions based on evidence which is speculative or conjectural in nature.  Finally, as emphasized
by President Eisenhower in Executive Order 10865, "Any determination under this order...shall be
a determination in terms of the national interest and shall in no sense be a determination as to the
loyalty of the applicant concerned."
CONCLUSIONS
It is the Government's responsibility to present substantial evidence to support the finding
of a nexus, or rational connection, between the Applicant's conduct and the continued holding of a
security clearance.  If such a case has been established, the burden then shifts to the Applicant to go
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forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or
outweigh the Government's case.  The Applicant bears the ultimate burden of persuasion in proving
that it is clearly consistent with the national interest to grant him or her a security clearance.
In this case the Government has met its initial burden of proving by substantial evidence that
the Applicant has two criminal arrests on his record, in 1992 and 2004.  Disqualifying Condition
E2.A10.1.2.2. applies to this case, “A single serious crime or multiple lesser offenses.”
The Applicant, on the other hand, has successfully mitigated the Government's case.  The two
incidents were separated by 12 years.  There is no evidence that the Applicant has a pattern of
engaging in violent behavior.  The second incident in particular, involving his son, is isolated in
nature and there is little or no possibility that the conduct will be repeated.  Under the particular
circumstances of this case, it is appropriate to apply Mitigating Condition E2.A10.1.3.2., “The crime
was an isolated incident.”  In addition, specifically regarding the second incident, Mitigating
Conditions E2.A10.1.3.3., “The person was pressured or coerced into committing the act and those
pressures are no longer present in that person’s life”; and E2.A10.1.3.4., “The person did not
voluntarily commit the act and/or the factors leading to the violation are not likely to recur” also
apply.
The Applicant has successfully attended an anger management course and the evidence
shows him to have internalized the teachings.  (Transcript at 56-59.)  He has support from co-
workers and superiors and the record shows him to be a very worthwhile and respected employee.
Mitigating Condition E2.A10.1.3.6. applies as, “There is clear evidence of substantial rehabilitation.”
In addition, application of the General Factors and the whole person concept is appropriate
and supports a decision in the Applicant's favor.  The Applicant is motivated not to engage in similar
criminal conduct in the future (factor g.), he shows considerable evidence of rehabilitation (factor
f.), and, under the particular circumstances of this case, the probability that the Applicant will engage
in such conduct again are virtually nil (factor i.). 
On balance, it is concluded that the Applicant has successfully overcome the Government's
case opposing his request for a DoD security clearance.  Accordingly, the evidence supports a finding
for the Applicant as to the factual and conclusionary allegations expressed in Paragraph 1 of the
Government's Statement of Reasons.
FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as required by
Paragraph 25 of Enclosure 3 of the Directive, are:
Paragraph 1: For the Applicant.
Subparagraph 1.a.: For the Applicant.
Subparagraph 1.b.: For the Applicant.
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DECISION
In light of all the circumstances presented by the record in this case, it is clearly consistent
with the national interest to grant or continue a security clearance for the Applicant.
Wilford H. Ross
Administrative Judge