KEYWORD: Criminal Conduct; Personal Conduct
DIGEST: Applicant failed to mitigate security concerns about his arrest record and his deliberate
falsification of his Application for a Position of Trust (SF 85P). Eligibility for an ADP I/II/III
position is denied.
CASENO: 06-13052.h1
DATE: 05/03/2007
DATE:  May 3, 2007
In re:
-----------------
SSN: -----------
Applicant for ADP I/II/III Position
)
)
)
)
)
)
)
)
ADP Case No. 06-13052
DECISION OF ADMINISTRATIVE JUDGE
MATTHEW E. MALONE
APPEARANCES
FOR GOVERNMENT
Jennifer Goldstein, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant failed to mitigate security concerns about his arrest record and his deliberate
falsification of his Application for a Position of Trust (SF 85P). Eligibility for an ADP I/II/III
position is denied.
 Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended.1
 On January 3, 2007, Applicant requested a continuance. I determined, after speaking  with the parties that day2
via telephone conference call, that Applicant failed to show good cause for a continuance, and I denied his motion. See
also, Tr., 12 - 13.
2
STATEMENT OF THE CASE
On October 31, 2003, Applicant submitted a Public Trust Position Application (SF 85P).
After reviewing the results of the ensuing background investigation, adjudicators for the Defense
Office of Hearings and Appeals (DOHA) were unable to make a preliminary affirmative finding  that1
it is clearly consistent with the national interest to grant Applicant a position of trust. On July 18,
2006, DOHA issued to Applicant a Statement of Reasons (SOR) alleging facts that raise
trustworthiness concerns addressed in the Directive under Guideline E (personal conduct) and
Guideline J (criminal conduct).
Applicant timely responded to the SOR, and requested a hearing. The case was assigned to
a DOHA administrative judge on October 13, 2006. A hearing originally scheduled for November
20, 2006, was cancelled when the case was transferred to me on November 17, 2006, due to caseload
considerations. I convened a hearing on January 8, 2007.  The government submitted eight exhibits2
(Gx. 1- 10) that were admitted into evidence without objection. Applicant testified and introduced
one exhibit (Ax. A), which was admitted without objection. DOHA received the transcript (Tr.) on
January 17, 2007.
FINDINGS OF FACT
The government alleged in SOR ¶ 1 that Applicant was arrested in December 1992 and
charged with statutory sexual seduction, but pleaded guilty to a lesser charge of contributing to the
delinquency of a minor, for which he spent four days in jail (SOR ¶ 1.a); that in April 1997, he was
charged with corporal injury to spouse and battery, and after pleading guilty he was sentenced to 40
hours community service, fined, and ordered to complete a 32-session domestic violence program
(SOR ¶ 1.b); that in November 1998, he was charged with two counts of aggravated battery (SOR
¶ 1.c);  that in May 1999, he was charged with violating his probation for the charge listed in SOR
¶ 1.a, was found guilty and sentenced to three years of probation (SOR ¶ 1.d); that in April 2003 he
was charged with battery of his spouse and probation violation (SOR ¶ 1.e); and that he violated 18
U.S.C. § 1001 by deliberately falsifying his SF 85P in October 2003 (SOR ¶ 1.f). In response,
Applicant admitted with explanation the allegations in SOR ¶¶ 1.a, 1.b, and 1.c. He denied the
allegations in SOR ¶¶ 1.d, 1.e, and 1.f. 
Under SOR ¶ 2, the government alleged Applicant deliberately falsified his response to
question 16 of his SF 85P (arrests, charges, and/or convictions for any offense in the past seven
years) by omitting the arrests alleged in SOR ¶¶ 1.b, 1.c, 1.d, and 1.e (SOR ¶ 2.a). Claiming he was
told he only had to disclose arrests in the preceding five years, Applicant denied intentionally
falsifying his answers to the SF 85P.
 Tr., 40 - 42, 70.3
 Tr., 40.4
 Applicant was allowed to leave the military a year early due to overmanning in his skill set.5
 Answer to SOR; Gx. 2; Gx. 4; Gx. 6.6
 Answer to SOR; Gx. 2; Gx. 4; Tr., 34 - 35, 56.7
 Answer to SOR; Gx. 2; Tr., 57.8
3
His admissions are incorporated herein as facts. After a thorough review of the transcript and
exhibits, I make the following additional findings of relevant fact:
Applicant is 32 years old and has worked since February 2001 as a network design engineer
for a health care and medical insurance company contracted to manage medical insurance claims and
information for TriCare, the Department of Defense (DoD) medical insurance system for military
personnel and their families. He has been married to his current wife since June 2003. A previous
marriage began in 1992. They separated in 1993, and a divorce was finalized in 1997. Applicant and
his first wife had one child. He has adopted his current wife’s child, and he has a third child by a
different woman whom he never married.3
Applicant served in the U.S. Marines from September 1993 until July 1997. He was initially
trained as a scout sniper, but was later trained to work on information networks. He attended college
briefly following high school, but finished his business degree while in the Marines.  He has been4
employed continuously as a network engineer since he left the military with a general discharge
under honorable conditions.5
In December 1992, when Applicant was 18 years old, he dated and had consensual sex with
a girl he thought was at least 18 years old. In fact, she was only 16 years old. When her mother
learned of their relationship, she filed charges that led to Applicant’s arrest for statutory sexual
seduction. He pleaded guilty to a lesser charge of contributing to the delinquency of a minor, and was
sentenced to 90 days in jail, of which all but four days was suspended.6
While still in the Marine Corps, Applicant was at a party at his sister’s house on April 5,
1997. When a fight broke out, Applicant, who had been drinking, stepped in and fought with his
sister’s husband. One result of the fight was that he struck his wife, which he claimed was accidental.
Another result was that he was charged with corporal injury to spouse and battery. He was convicted
of the latter charge, fined, ordered to perform 40 hours of community service. Applicant was also
ordered to complete a 32-hour domestic violence program and placed on three years probation.7
Applicant failed to pay the entire fine on time, and did not complete all of his community
service. The court issued a bench warrant for his arrest. In May 1999, after being pulled over for
speeding, he was arrested and spent more than three weeks in jail before appearing in court. The
court considered his jail time and commuted the unfinished service and unpaid fine.8
 Tr., 36.9
 Answer to SOR; Tr., 35, 52 - 53.10
 Answer to SOR; Tr., 37 - 38.11
 Ax. A.12
 Directive, Enclosure 2.13
 Department Counsel moved to amend the SOR to show that a memorandum from Carol A. Haave, Deputy14
Under Secretary of Defense for Counterintelligence and Security to DOHA Director, Adjudication of Trustworthiness
Cases (Nov. 19, 2004), directed that adjudication of trustworthiness cases for ADP I, II, and III positions be resolved
using the provisions of the Directive rather than, as originally drafted, DoD Regulation 5200.2-R, DoD Personnel
Security Program , as amended (Regulation). Applicant did not object and I granted the motion. (Tr., 11) Positions
designated as ADP I or ADP II are classified as sensitive positions in section AP10.2.1 of the Regulation. ADP III
positions are nonsensitive positions. (Regulation, AP10.2.3.1) By virtue of the aforementioned memorandum, however,
even though they are nonsensitive positions, ADP III cases are treated in the same way and adjudicated under the same
guidelines and procedures as ADP I and II cases. The adjudicative guidelines in the Directive cases are virtually identical
to those in the Regulation.
4
In April 2000, Applicant was detained by police who thought he looked suspicious as he
walked home from a bar after having “a few too many drinks.” A records check revealed the same
bench warrant for failing to pay his fine, and he was arrested. Applicant testified this event is “a
funny story” he tells his friends.9
Applicant was also arrested in November 1998 and charged with two counts of aggravated
battery after he was involved in a bar fight. Applicant acknowledged he was involved in such a fight,
but asserts he did not start it and that the charges were dropped after he spent a night in jail. There
is no other information available about the disposition of these charges.10
On October 31, 2003, Applicant submitted a Public Trust Position Application (SF 85P). In
response to question 16 (arrests, charges, and/or convictions for any offense in the past seven years),
Applicant answered “no,” thereby omitting any arrests since October 1997. Applicant claims he was
told only to list such information only if it occurred in the preceding five years, or since October
1998. He further asserted that, because he did not consider the 1999 or 2000 arrests for failing to
complete the sentence from his 1997 conviction to be new charges, he did not think he had to list it.11
Applicant enjoys a good reputation at work. Colleagues who have known him for most or
all of the time he has worked in his current job regard him as accomplished in his work, a good
family man, and willing to help others at work and in the community.12
POLICIES AND BURDEN OF PROOF
The Directive sets forth adjudicative guidelines  to be considered in evaluating an13
applicant’s suitability for access to sensitive information.  Each trustworthiness determination must14
reflect consideration of both disqualifying conditions (DC) and mitigating conditions (MC) under
 Also, Appendix 8 of the Regulation sets forth the adjudicative policy, as well as the disqualifying conditions15
and mitigating conditions associated with each guideline. DoD contractor personnel are afforded the adjudication
procedures contained in the Directive. (Regulation, C8.2.1)
 Directive, 6.3.16
 “The adjudicative process is the careful weighing of a number of variables known as the whole person17
concept. Available, reliable information about the person, past and present, favorable and unfavorable, should be
considered in reaching a determination. In evaluating the relevance of an individual's conduct, the adjudicator should
consider the following factors:
 E2.2.1.1. The nature, extent, and seriousness of the conduct;
 E2.2.1.2. The circumstances surrounding the conduct, to include knowledgeable participation;
 E2.2.1.3. The frequency and recency of the conduct;
 E2.2.1.4. The individual's age and maturity at the time of the conduct;
 E2.2.1.5. The voluntariness of participation;
 E2.2.1.6. The presence or absence of rehabilitation and other pertinent behavioral changes;
 E2.2.1.7. The motivation for the conduct;
 E2.2.1.8. The potential for pressure, coercion, exploitation, or duress; and
 E2.2.1.9. The likelihood of continuation or recurrence;”
 Regulation, C6.1.1.1 (“The standard that must be met for...assignment to sensitive duties is that, based on all18
available information, the person’s loyalty, reliability, and trustworthiness are such that...assigning the person to sensitive
duties is clearly consistent with the interests of national security.”)
 See Egan, 484 U.S. at 528, 531.19
5
each adjudicative issue applicable to the facts and circumstances of each case.  Each determination15
must also reflect a fair and impartial common sense consideration of all available relevant and
material information,  and it must reflect the adjudication process outlined in the Directive at16
Section E2.2.1.  The presence or absence of a disqualifying or mitigating condition is not17
determinative of a conclusion for or against an applicant. However, specific applicable guidelines
should be followed whenever a case can be measured against them as they represent policy guidance
governing the grant or denial of access to sensitive information. Having reviewed the information
presented by the parties, I conclude Guideline J (criminal conduct) and Guideline E (personal
conduct) must be considered in this case.
Under the Regulation, trustworthiness determinations are intended solely to resolve whether
it is clearly consistent with the interests of national security for an applicant to receive or continue
to have access to sensitive information.  The government bears the initial burden of producing18
admissible information on which it based the preliminary decision against the applicant.
Additionally, the government must be able to prove controverted facts alleged in the SOR. If the
government meets its burden, the burden then shifts to the applicant to refute, extenuate or mitigate
the government’s case. As with security clearances, no one has a “right” to such access.  Thus, an19
applicant bears a heavy burden of persuasion. Access to sensitive information is a fiduciary
relationship with the government based on trust and confidence. The government, therefore, has a
compelling interest in ensuring each applicant possesses the requisite judgement, reliability and
trustworthiness of one who will protect sensitive information pertaining to the national interests as
his or her own. The “clearly consistent with the interests of national security” standard compels
 See Egan; Directive, E2.2.2.20
 Directive, E2.A10.1.1.21
 Title 18 U.S.C. § 1001.22
  Directive, E2.A10.1.2.1. Allegations or admission of criminal conduct, regardless of whether the person was23
formally charged; and E2.A10.1.2.2. A single serious crime or multiple lesser offenses.
6
resolution of any reasonable doubt about an applicant’s suitability for access in favor of the
government.20
CONCLUSIONS
Criminal Conduct. Applicant’s arrests and false statements to the government raise
trustworthiness concerns addressed in the Directive under Guideline J. Specifically, a history or
pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.21
A person who is willing to disregard the law and risk fines or incarceration may also be willing to
disregard rules and regulations governing the protection of sensitive information. The criminal
activity at issue may consist of a single serious crime or multiple lesser offenses. 
Here, the government has reasonable doubts about Applicant’s suitability for access to
sensitive information because available information shows he has been arrested at least five times
since 1992. He was convicted of contributing to the delinquency of a minor in 1993 (SOR ¶ 1.a), and
of battery and spousal injury in 1997 (SOR ¶ 1.b). While on probation, he was held overnight in jail
after a fight in 1998 (SOR ¶ 1.c). In 1999 (SOR ¶ 1.d) and 2000 (SOR ¶ 1.e), he was arrested on
bench warrants issued for failing to comply with the terms of his sentence in 1997. 
Available information also shows he deliberately made false statements to the government
through his response to SF 85P question 16 in October 2003 (SOR ¶ 1.f). Applicant denied
intentionally falsifying his answer because he was told to list only offenses within the preceding five
years. Further, he claimed he did not believe he had to list either his 1999 arrest or his 2000 arrest
because both related back to his original conviction in 1997. I accept his claim he was told to list
events from the preceding five years; however, I do not accept his explanation of why he omitted his
1999 and 2000 arrests. On both occasions, he was held in jail and had to appear in court. He has not
provided an explanation of his omission of the 1998 arrest for aggravated battery, for which he spent
the night in jail before the charges were dropped. 
By the plain language of question 16, Applicant was to lists arrests, as well as convictions,
and there is no qualifying language about the basis of the arrest. It is against federal criminal law and
punishable by fines and/or imprisonment to knowing and wilfully make a false statement or
representation to any agency of the U.S. government concerning a matter within its jurisdiction.22
Applicant, a college graduate and, by all appearances an intelligent person, signed his SF 85P
directly below an advisement to that effect, thereby demonstrating he was aware of the consequences
of his false statements. All of the foregoing requires consideration of Guideline J DC 1 and DC 2.23
 Directive, E2.A10.1.3.1. The criminal behavior was not recent.24
 Directive, E2.A10.1.3.6. There is clear evidence of successful rehabilitation.25
 Directive, E2.A5.1.1.26
 Directive, E2.A5.1.2.2. The deliberate omission, concealment, or falsification of relevant and material facts27
from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations,
determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness,
or award fiduciary responsibilities;
 Directive, E2.A5.1.3.4. Omission of material facts was caused or significantly contributed to by improper or28
inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided.
 See note 20, supra.29
 Directive, E2.2.3. 30
7
By contrast, were it not for Applicant’s deliberate falsification of his SF 85P, the record
would require consideration of Guideline J MC 1.  His arrests and other conduct occurred nearly24
six years ago, and there appear to have been several recent positive changes in his lifestyle. However,
his violation of 18 U.S.C. § 1001 is recent. In light of Applicant’s work record, I have also
considered MC 6.  But the value of this mitigator is attenuated by his deliberate false statement to25
the government. His criminal conduct is recent, it is not isolated, and his deliberate false statement
to the government directly undermines any argument that he is rehabilitated. In sum, there is
insufficient information available to overcome the government’s concerns about his criminal
conduct. I conclude Guideline J against the Applicant.
Personal Conduct. Under Guideline E, a security concern may arise if it is shown an
applicant has exhibited questionable judgment, untrustworthiness, unreliability, lack of candor,
dishonesty, or unwillingness to comply with rules and regulations. Such conduct may indicate the
person may not properly safeguard classified information.  The government questioned Applicant’s26
trustworthiness by alleging he deliberately falsified material facts on his SF 85P by omitting his
arrests in 1998, 1999, and 2000 in response to question 16 (SOR ¶ 2.a). Based on the discussion of
this allegation, above, within the context of criminal conduct, I conclude from all available
information about his SF 85P that he intended to minimize the scope of his criminal conduct.
Guideline E DC 2  must be considered. 27
I have also considered Guideline E MC 4  in that Applicant was told to go back only five28
years. However, this does not explain his omission of events less than five years old. Nor did
Applicant promptly correct his omissions as nearly eight months passed before he was interviewed
by government investigators, and there is nothing in the record showing he tried to correct his
omissions before then. Based on all of the foregoing, I conclude Guideline E against the Applicant.
Whole Person. In evaluating Applicant’s case, I have also considered the adjudicative
process factors collectively referred to as the “whole person” concept.  Applicant is a smart, hard-29
working person. His friends and co-workers speak highly of him and he is, by all accounts, very good
at his job. However, the recommendations he provided carry diminished weight in that none of their
remarks demonstrate any firsthand knowledge of the adverse information in Applicant’s background.
A fair and commonsense assessment  of the entire record before me shows the government properly30
expressed reasonable doubts about Applicant’s suitability to hold a sensitive position. The SOR was
8
based on sufficient, reliable information about Applicant’s criminal conduct, and his deliberate
falsification of his SF 85P. Such issues bear directly on an applicant’s ability and willingness to
exercise the requisite good judgment and discretion expected of one in whom the government
entrusts its sensitive information. 
FORMAL FINDINGS
Formal findings regarding each SOR allegation are as follows:
Paragraph 1, Guideline J (Criminal Conduct): AGAINST THE APPLICANT
Subparagraph 1.a: Against the Applicant
Subparagraph 1.b: Against the Applicant
Subparagraph 1.c: Against the Applicant
Subparagraph 1.d: Against the Applicant
Subparagraph 1.e: Against the Applicant
Subparagraph 1.f: Against the Applicant
Paragraph 2, Guideline E (Personal Conduct): AGAINST THE APPLICANT
Subparagraph 2.a: Against the Applicant
DECISION
In light of all of the circumstances presented by the record in this case, it is not clearly
consistent with the interests of national security to grant Applicant’s request for eligibility for
assignment to a sensitive position. Eligibility is denied.
Matthew E. Malone
Administrative Judge