KEYWORD: Personal Conduct
DIGEST: Applicant has a history of four minor infractions/incidents which in all likelihood would
not have led to a security clearance denial.  However, he was not forthcoming about these incidents
on four separate occasions during the application process when he initially submitted a security
clearance application in March 2003, and reaffirmed in September 2003 and again in February 2004,
and when submitted a second security application in October 2005.  Applicant failed to mitigate the
security concerns arising from his falsifications.  Clearance is denied. 
CASENO: 06-18253.h1
DATE: 05/03/2007
DATE:  May 3, 2007
In Re:
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 06-18253
DECISION OF ADMINISTRATIVE JUDGE
ROBERT J. TUIDER
APPEARANCES
FOR GOVERNMENT
Richard A. Stevens, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and1
modified.
Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review2
Program  (Jan. 2, 1992), as amended and modified.
2
Applicant has a history of four minor infractions/incidents which in all likelihood would not
have led to a security clearance denial.  However, he was not forthcoming about these incidents on
four separate occasions during the application process when he initially submitted a security
clearance application in March 2003, and reaffirmed in September 2003 and again in February 2004,
and when submitted a second security application in October 2005.  Applicant failed to mitigate the
security concerns arising from his falsifications.  Clearance is denied. 
STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a
security clearance for Applicant.  On November 27, 2006, under the applicable Executive Order  and1
Department of Defense Directive,  DOHA issued a Statement of Reasons (SOR) detailing the basis2
for its decision–personal conduct (Guideline E) of the Directive.  Applicant answered the SOR in
writing in an undated notarized response, which was received by DOHA on December 29, 2006.
In his response, he elected to have a hearing before an Administrative Judge.  
The case was assigned to me on February 21, 2007.  On February 28, 2007, DOHA issued
a notice of hearing scheduling Applicant’s hearing for March 15, 2007.  Applicant stated he received
sufficient notice and was ready to proceed.  Tr. 11.  The hearing was conducted as scheduled.  
The government offered five exhibits, which were admitted without objection as Government
Exhibits (GE) 1 through 5.  The Applicant offered four exhibits, which were admitted with objection
as Applicant Exhibits (AE) A through D.  DOHA received the transcript (Tr.) of the proceeding on
March 28, 2007.
PROCEDURAL RULING
At the hearing, Department Counsel asked me to take administrative notice of Article 111,
Uniform Code of Military Justice (UCMJ), drunken or reckless operation of a vehicle, aircraft, or
vessel.  Reference was made to Article 111, UCMJ, in SOR ¶ 1.d.
Administrative or official notice is the appropriate type of notice used for administrative
proceedings.  See ISCR Case No. 02-24875 at 2 (App. Bd. Oct. 12, 2006) (citing ISCR Case No.
02-18668 at 3 (App. Bd. Feb. 10, 2004); McLeod v. Immigration and Naturalization  Service, 802
F.2d 89, 93 n.4 (3d Cir. 1986)).  The most common basis for administrative notice at ISCR
proceedings is to notice facts that are either well known or taken from government reports. See Stein,
ADMINISTRATIVE LAW, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for
3
administrative notice).  Applicant did not object to my consideration of Article 111, UCMJ for
purposes of administrative notice. Tr. 11-12. 
FINDINGS OF FACT
Applicant denied the allegations in ¶¶ 1.e., 1.f., 1.g., and 1.h., i.e. the four falsification
charges cited in the SOR.  He did admit to ¶¶ 1.a., 1.b., 1.c., and 1.d.  After a complete and thorough
review of the evidence in the record, I make the following additional findings of fact.
Applicant testified at his hearing and I did not find his testimony credible.
Applicant is a 35-year-old Third Class Engineer for a defense contractor.  He has been
employed part-time by this defense contractor since October 2005.  Additionally, he is an active duty
Air Force Staff Sergeant, pay grade E-5, with an Air Force Specialty Code of 3E171, Heating,
Ventilation, Air Conditioning, and Refrigeration.  He has been in the Air Force since September
1992 and as an active duty member of the Air Force, he holds a secret clearance.  As a defense
contractor employer, he seeks a security clearance separate and apart from the clearance he holds in
the Air Force.
Applicant graduated from high school in June 1992.  He has been working on his associate’s
degree, maintaining a 4.0 GPA, and is two classes from completing his degree.  Tr. 24-25.
Applicant was married to his first wife from October 1996 to November 2001.  GE 1.  That
marriage ended by divorce.  Applicant has been married to his second wife since March 2005.  GE
1.  Applicant has a 10-year-old son born from a relationship with a former girlfriend for whom he
provides child support.  His son lives with his mother.  Applicant has no other children.
The SOR alleged four separate incidents to which Applicant admitted in his Answer to the
SOR.  They are:
1. That he was awarded non-judicial punishment (NJP) on September 27, 2005, and found
guilty of wrongfully using a government computer to view pornographic images.  He was sentenced
to be reprimanded, and reduced one pay grade.  His reduction in grade was suspended for six
months.  (SOR ¶ 1.a.).  Applicant signed his Record of Nonjudicial Punishment Proceedings on
September 27, 2005, indicating that he did not desire to appeal.  GE 4.;
2.  That he was arrested on July 21, 2002, and charged with disorderly conduct.  This charge
was dismissed.  (SOR ¶ 1.b.).  GE 3.;
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3.  That he was cited on May 5, 2001 and charged with provoking speech/gestures while at
an overseas Air Force base.  (SOR ¶ 1.c.)  Apparently, no further action was taken against the
Applicant.; and
4.  That he was awarded NJP on April 19, 1998, and found guilty of drunken or reckless
operation of a vehicle.  He was sentenced to be reduced one pay grade.  His reduction in grade was
suspended for six months.  (SOR ¶ 1.d.).  GE 5.
On October 5, 2005, Applicant completed a security clearance application (SF-86).  He
responded negatively to question 23(d) inquiring whether he had ever been charged with or convicted
of any offense(s) related to alcohol or drugs, and to question 23(e) inquiring whether in the last seven
years he had ever been subject to court martial or other disciplinary proceedings under the UCMJ
to include non-judicial punishment. (SOR ¶¶ 1.d. and 1.a.)
These responses were clearly untrue in light on his having been awarded non-judicial
punishment as recently as September 27, 2005 for wrongfully using a government computer to view
pornographic images (SOR ¶ 1.a.), and for his having been awarded non-judicial punishment on
April 18, 1998 for drunken or reckless operation of a vehicle (SOR ¶ 1.d).   
On March 27, 2003, Applicant completed an SF-86, which he reaffirmed on September 29,
2003, and again on February 17, 2004.  He responded negatively to question 24 inquiring whether
he had ever been charged with or convicted of any offense(s) related to alcohol or drugs, and to
question 26 inquiring whether in the last seven years he had been arrested, charged with, or
convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25.  (SOR ¶¶ 1.d. and 1.b.).
These responses were clearly untrue in light of his having been awarded non-judicial
punishment on April 18, 1998 for drunken or reckless operation of a vehicle (SOR ¶ 1.d.), and for
his having been arrested and charged with disorderly conduct (SOR ¶ 1.b.). 
Applicant’s explanations for these omissions varied.  As to SOR ¶ 1.e., referring to his NJP
on April 19, 1998, Applicant explained he “was led to believe that because this incident happened
on a military installation overseas and dealt with by military members overseas that it would not
involve my civilian background in any manner.  Being that I am in the military and this incident
happened on a military installation handled by military personnel, I did not understand that I had a
“Police Record.”  Therefore I answered “NO” to this question.”  Answer to SOR.
As to SOR ¶ 1.f., referring to his NJP on September 27, 2005, Applicant explained “The
question asked in the last 7 years have you been subject to court martial or other disciplinary
proceedings under the Uniform Code of Military Justice.  I answered “NO” to this question because
initially at the time I was asked this question I was in the process of receiving punishment for
wrongfully using a Government Computer incident and hadn’t actually received punishment.  I
clearly misunderstood the question entirely!”  Answer to SOR.
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As to SOR ¶ 1.g., referring to his NJP on April 19, 1998, Application explained “Because
I was led to believe that because this incident happened on a military installation overseas and dealt
with my military members overseas that it would not involve my civilian background in any manner.
I was led to believe that this matter would be in military file for 2 years and would not follow me
afterwards.  Therefore I answered “NO” to this question.”  Answer to SOR.
As to SOR ¶ 1.h., referring to his arrest and being charged with disorderly conduct on July
21, 2002, Applicant explained “I admit” to being arrested in [location] on July 22 (sic), 2002.  “I
deny” deliberately falsifying material facts by saying “NO” to the question because I was told by my
lawyer at that time that the manner would be expunged and I specifically asked about this involving
my security clearance.  He said that if asked about the arrest to say “NO” because it did not happen.”
Answer to SOR.
Applicant’s explanations for these discrepancies during his hearing did not vary significantly
from the explanations given in his Answer to SOR, outlined above.
Applicant submitted five reference letters, 16 copies of different awards and achievements,
28 pages of training documents, and six pages of personal military history and information forms.
AE A through D.  The collective sense of these documents is that Applicant is a bright and motivated
individual, who has made a substantial contribution to the Air Force during his 14 plus years of
active duty.
POLICIES
In an evaluation of an applicant’s security suitability, an administrative judge must consider
Enclosure 2 of the Directive, which sets forth adjudicative guidelines. In addition to brief
introductory explanations for each guideline, the adjudicative guidelines are divided into
disqualifying conditions (DC) and mitigating conditions (MC), which are used to determine an
applicant’s eligibility for access to classified information.
These adjudicative guidelines are not inflexible ironclad rules of law. Instead, recognizing
the complexities of human behavior, an administrative judge should apply these guidelines in
conjunction with the factors listed in the adjudicative process provision in Section E2.2, Enclosure
2, of the Directive.  An administrative judge’s overarching adjudicative goal is a fair, impartial and
common sense decision.  Because the entire process is a conscientious scrutiny of a number of
variables known as the “whole person concept,” an administrative judge should consider all
available, reliable information about the person, past and present, favorable and unfavorable, in
making a meaningful decision.
Specifically, an administrative judge should consider the nine adjudicative process factors
listed at Directive ¶ E2.2.1: (1) the nature, extent, and seriousness of the conduct; (2) the
“Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support3
a conclusion in light of all the contrary evidence in the record.”  ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4,
2006) (citing Directive ¶ E3.1.32.1).  “This is something less than the weight of the evidence, and the possibility of
drawing two inconsistent conclusions from the evidence does not prevent [a Judge’s] finding from being supported
by substantial evidence.”  Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966).  “Substantial evidence”
is “more than a scintilla but less than a preponderance.”  See v.Washington Metro. Area Transit Auth., 36 F.3d 375,
380 (4  Cir. 1994). th
?The Administrative Judge [considers] the record evidence as a whole, both favorable and unfavorable,4
[evaluates] Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and [decides]
whether Applicant [has] met his burden of persuasion under Directive ¶ E3.1.15.”  ISCR Case No. 04-10340 at 2
(App. Bd. July 6, 2006). 
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circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency
and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the
voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent
behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion,
exploitation, or duress; and (9) the likelihood of continuation or recurrence.
Conditions that could raise a security concern and may be disqualifying, as well as those
which could mitigate security concerns pertaining to the relevant adjudicative guidelines are set forth
and discussed in the Conclusions section below.  Since the protection of the national security is the
paramount consideration, the final decision in each case is arrived at by applying the standard that
the issuance of the clearance is “clearly consistent with the interests of national security.” In reaching
this decision, I have drawn only those conclusions that are reasonable, logical and based on the
evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere
speculation or conjecture.
In the decision-making process, facts must be established by “substantial evidence.”   The3
government initially has the burden of producing evidence to establish a potentially disqualifying
condition under the Directive. Once the government has produced substantial evidence of a
disqualifying condition, the burden shifts to the applicant to produce evidence and prove a mitigating
condition.  Directive ¶ E3.1.15 provides, “The applicant is responsible for presenting witnesses and
other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by
Department Counsel, and [applicant] has the ultimate burden of persuasion as to obtaining a
favorable clearance decision.”  The burden of disproving a mitigating condition  never shifts to the
government.  See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).4
A person who seeks access to classified information enters into a fiduciary relationship with
the government predicated upon trust and confidence. It is a relationship that transcends normal duty
hours and endures throughout off-duty hours as well. It is because of this special relationship the
government must be able to repose a high degree of trust and confidence in those individuals to
whom it grants access to classified information.  Decisions under this Directive include, by necessity,
consideration of the possible risk an applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
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The scope of an administrative judge’s decision is limited. Applicant’s allegiance, loyalty,
and patriotism are not at issue in these proceedings.  Section 7 of Executive Order 10865 specifically
provides industrial security clearance decisions shall be “in terms of the national interest and shall
in no sense be a determination as to the loyalty of the applicant concerned.”  Security clearance
decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism.
Nothing in this decision should be construed to suggest that I have based this decision, in whole or
in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism.
CONCLUSIONS
Guideline E – Personal Conduct
The security concern under Guideline E, is that “Conduct involving questionable judgment,
lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions
about an individual’s reliability, trustworthiness and ability to protect classified information.  Of
special interest is any failure to provide truthful and candid answers during the security clearance
process or any other failure to cooperate with the security clearance process.”  Directive ¶ 15.
Upon consideration of all the facts in evidence, and after application of all appropriate legal
precepts, factors, and conditions, including those described briefly above, I conclude the following
with respect to the allegations set forth in the SOR:
The SOR alleges four minor offenses that occurred some time ago that gave rise to concerns
identified in ¶¶ 1.a. through 1.d.  First, an NJP for drunken or reckless operation of a vehicle that
occurred in 1998 while Applicant was overseas, for which he received a suspended reduction.
Second, a citation/charge for provoking speech/gestures that occurred in 2001 while Applicant was
overseas, and for which no action was taken against Applicant.  Third, an arrest in 2002 for
disorderly conduct, for which the charge was dismissed.  Fourth, an NJP for wrongfully using a
government computer to view pornographic images in 2005, for which he received a suspended
reduction and a reprimand.
Typically, under the UCMJ, NJP is reserved for the adjudication of minor offenses.  It is
further noted both his respective commanders who awarded Applicant NJP suspended his
punishment.  The civilian charge of disorderly conduct charge was dismissed and the provoking
speech/gestures charge apparently did not result in any adverse action being taken against Applicant.
While these charges document a higher level of law enforcement intervention than desired for
Applicants seeking a security clearance, certain factors must be considered.  Those include the time
elapsed, the fact that two of the offenses were adjudicated in the lesser forum of NJP for which his
punishment was suspended, the remaining two offenses resulted in a dismissal and/or no action being
taken against Applicant, and there were no recurrences of the same or similar conduct.  
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Under the Directive, these four incidents raise potential concerns under disqualifying
condition (DC) 16.(c): credible adverse information in several adjudicative issue areas that is not
sufficient for an adverse determination under any other single guideline, but which, when considered
as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness,
unreliability, lack of candor, unwillingness to comply with rules and regulations, or other
characteristics indicating that the person may not properly safeguard protected information.  Under
the facts of this case, Applicant is able to benefit from mitigating condition (MC) 17.(c): the offense
is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such
unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment.  
Under the particular facts and circumstances of this case, I conclude Applicant would not be
prohibited from holding a security clearance as a result of SOR allegations ¶¶ 1.a. through 1.d.  That
is not the case for the remaining concerns raised under SOR ¶¶ 1.e. through 1.h.
SOR ¶¶ 1.e. through 1.h. alleged Applicant falsified material facts on two of the SF-86s he
submitted, the first on October 5, 2005, and the second originally signed on March 27, 2003, and
reaffirmed on the two separate dates of September 29, 2003, and on February 17, 2004.
Applicant’s explanations for failing to list these offenses/incidents are simply not credible.
In particular, it is inconceivable that he would be awarded NJP on September 27, 2005 for
wrongfully using a government computer, and eight days later when completing his SF-86 on
October 5, 2005, claim his failure to list that NJP was that he was in the “process of receiving
punishment . . . and hadn’t actually received punishment.”  Having signed his Record on Nonjudicial
Punishment Proceedings on September 27, 2005, indicating he did not desire to appeal his
punishment suggests something other than being in the “process of receiving punishment.”  His other
explanations such as misunderstanding that he had a police record, that he thought being a military
member overseas would not involve his civilian background, or that his unknown lawyer told him
to answer “no” to security clearance questions involving his being arrested and charged with
disorderly conduct are equally disingenuous.
Applicant is a bright and articulate individual with over 14 years in the Air Force.  He has
held a security clearance since he has been in the Air Force and is no stranger to the process.  He
provided considerable documentation expounding his many accomplishments in the Air Force.  It
is unfortunate that he chose not to disclose four relatively minor offenses.  In my view, such
disclosure would probably not have precluded him from being granted a security clearance.  When
an Applicant does not provide complete and accurate information, the government is justified in
having a concern about that person’s personal integrity.  Applicant demonstrated a pattern of not
telling the truth on at least four occasions during this application process.
Applicable is DC 16.(a): deliberate omission, concealment, or falsification or relevant facts
from any personnel security questionnaire, personal history statement, or similar form used to
conduct investigations, determine employment qualifications, award benefits or status, determine
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security clearance eligibility or trustworthiness, or award fiduciary responsibilities.  None of the
Directive’s mitigating conditions apply.
The “Whole Person” Concept
I considered the potentially disqualifying and mitigating circumstances in light of the “whole
person” concept.  Applicant is a mature individual with many years of service to this country as a
service member and an employee of a defense contractor.  As indicated above, it is my view the four
relatively minor infractions which Applicant chose to deny when undergoing the security clearance
process would not have precluded him from being granted a clearance.
Unfortunately, Applicant’s deliberate falsification of his two SF-86s on four separate
occasions raised significant concerns.  As a mature individual, Applicant knew or should have
known of the significance of these documents.  His deliberate submission of inaccurate information
– not once, but four times – is very troublesome.  His explanations for providing inaccurate
information are quite frankly unimpressive.  Weighing all the facts and circumstances, I find
Applicant has not mitigated the security concerns arising from the falsification of his security
clearance applications.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1.  Guideline E: AGAINST APPLICANT
Subparagraph 1.a.: For Applicant
Subparagraph 1.b.: For Applicant
Subparagraph 1.c.: For Applicant
Subparagraph 1.d.: For Applicant
Subparagraph 1.e.: Against Applicant
Subparagraph 1.f.: Against Applicant
Subparagraph 1.g.: Against Applicant
Subparagraph 1.h.: Against Applicant
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DECISION
In light of all of the circumstances presented by the record in this case, it is not clearly
consistent with the national interest to grant or continue a security clearance for Applicant.
Clearance is denied.
Robert J. Tuider
Administrative Judge