KEYWORD: Personal Conduct; Criminal Conduct
DIGEST: In 1996, the Applicant was charged with two felonies, but found guilty of Second Degree
Burglary, a misdemeanor.  In 1999, this conviction was cleared from the Applicant’s record.  In
answer to Section 23 on his September 2005 Electronic Questionnaire for Investigations Processing
(e-QIP), the Applicant failed to disclose his felony charges.  His attorney had advised the Applicant
that he was not required to disclose the felony charges on any job applications.  Were it not for this
advice, he would have disclosed the felony charges.  There was no wilful falsification; and as such,
no violation of 18 U.S.C. Section 1001.  The Applicant has the unqualified support of his superiors
in the work place. Clearance is granted.
CASENO: 06-24488.h1
DATE: 05/08/2007
DATE: May 8, 2007
In Re:
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 06-24488
DECISION OF ADMINISTRATIVE JUDGE
RICHARD A. CEFOLA
APPEARANCES
FOR GOVERNMENT
Melvin A. Howry, Esquire, Department Counsel
FOR APPLICANT
Pro Se
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SYNOPSIS
In 1996, the Applicant was charged with two felonies, but found guilty of Second Degree
Burglary, a misdemeanor.  In 1999, this conviction was cleared from the Applicant’s record.  In
answer to Section 23 on his September 2005 Electronic Questionnaire for Investigations Processing
(e-QIP), the Applicant failed to disclose his felony charges.  His attorney had advised the Applicant
that he was not required to disclose the felony charges on any job applications.  Were it not for this
advice, he would have disclosed the felony charges.  There was no wilful falsification; and as such,
no violation of 18 U.S.C. Section 1001.  The Applicant has the unqualified support of his superiors
in the work place. Clearance is granted.
STATEMENT OF THE CASE
On January 4, 2007, the Defense Office of Hearings and Appeals (DOHA), pursuant to
Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2,
1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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.
Applicant filed an Answer to the SOR on January 25, 2007.
The case was received by the undersigned on March 19, 2007.  A notice of hearing was
issued on March 27, 2007, and the case was heard on April 24, 2007.  The Government submitted
documentary evidence.  Testimony was taken from the Applicant, who also submitted documentary
evidence.  The transcript (TR) was received on May 3, 2007.  The issues raised here are whether the
Applicant's past Criminal Conduct and alleged Personal Conduct militate against the granting of a
security clearance.  [The Applicant denies any wilful falsification, and any related violation of 18
U.S.C. Section 1001.] 
FINDINGS OF FACT
The following Findings of Fact are based on Applicant's Answer to the SOR, the documents
and the live testimony.  The Applicant is 37, and is employed by a defense contractor who seeks a
security clearance on behalf of the Applicant.  After a complete and thorough review of the evidence
in the record, and upon due consideration of the same, I make the following additional Findings of
Fact.
Guideline E - Personal Conduct & Guideline J - Criminal Conduct
1.a. and 2.a.  In May of 1996, the Applicant was arrested, and charged with two felonies (TR
at page 33 line 11 to page 35 line 24, at page 36 line 11 to page 39 line 12, and Government Exhibit
(GX) 2).  He was found guilty of Second Degree Burglary, a misdemeanor (Id).  [The SOR does not
allege the 1996 incident as part of the Applicant’s Criminal Conduct, but only alleges a violation of
18 U.S.C. 1001.]  In 1999, this conviction was cleared from the Applicant’s record (Appellant’s
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Exhibit (AppX) A).
In answer to Section 23 on his September 2005 e-QIP, the Applicant failed to disclose his
felony charges (GX 1 at page 20).  His attorney had advised the Applicant that he was not required
to disclose the felony charges on any job applications (TR at page 26 line 20 to page 27 line 10, and
at page 31 line 9 to page 32 line 14).  Were it not for this advice, he would have disclosed the felony
charges (Id).  There was no wilful falsification; and as such, no violation of 18 U.S.C. Section 1001.
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POLICIES
Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and
conditions that could raise or mitigate a security concern.  Furthermore, as  set forth in the
Directive,"[each clearance decision must be a fair and impartial common sense determination based
upon consideration of all the relevant and material information and the pertinent criteria and
adjudication policy in enclosure 2, including as appropriate:
a. Nature, extent and seriousness of the conduct and surrounding
circumstances.
b. Frequency and recency of the conduct.
 c. Age and maturity of the applicant.
d. Motivation of the applicant, and the extent to which the conduct
was negligent, willful, voluntary, or undertaken with knowledge of
the consequence involved.
e. Absence or presence of rehabilitation.
f. Probability that circumstances or conduct will continue or recur in
the future.”
The Administrative Judge, however, 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.
The Government must make out its case under Guidelines E (Personal Conduct) and J
(Criminal Conduct); which establishes doubt about a person's judgment, reliability and
trustworthiness.  While a rational connection, or nexus, must be shown between an applicant's
adverse conduct and his ability to effectively safeguard classified information, with respect to
sufficiency of proof of a rational connection, objective or direct evidence is not required.
Then, the Applicant must remove that doubt with substantial evidence in refutation,
explanation, mitigation or extenuation, which demonstrates that the past adverse conduct is unlikely
to be repeated, and that the Applicant presently qualifies for a security clearance.
Personal conduct is conduct involving questionable judgement, untrustworthiness,
unreliability, or unwillingness to comply with rules and regulations.  The Government must be able
to place a high degree of confidence in a security clearance holder to abide by all security rules and
regulations at all times and in all places.  If an applicant has demonstrated a lack of respect for the
law, then there exists the possibility that an applicant may demonstrate the same attitude towards
security rules and regulations.
CONCLUSIONS
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When the Applicant answered his September 2005 e-QIP, he answered Section 23 to the best
of his ability, based on the advice of counsel.  The 1996 conviction had been cleared from his record;
and as such, he mistakenly thought he was not required to disclose that he was charged with a felony.
This being the case, I find no “deliberate omission, concealment, or falsification” here, as is
required by the first disqualifying condition under Personal Conduct (emphasis supplied).  The
Applicant testified credibly, as attested to by those who know him; and as such, I find there was no
wilful falsification and no related Criminal Conduct (AppX B).
Furthermore, I am not limited to the mitigating conditions, delineated in the Directive, in
deciding if an Applicant has demonstrated extenuation or mitigation.  Here, those who know the
Applicant at the workplace speak most highly of his character, credibility and trustworthiness (AppX
B).  The totality of the Appellant’s conduct and circumstances, as set forth at length above, clearly
warrants a favorable Decision under the “whole person concept.”  Mitigation is shown; and as such,
Guidelines E and J are found for the Applicant.
Considering all the evidence, the Applicant has rebutted the Government's case regarding his
alleged Criminal Conduct and Personal Conduct.  The Applicant has thus met the mitigating
conditions of Guidelines E and J, and of Section E.2.2. of the Directive.  Accordingly, he has met
his ultimate burden of persuasion under Guidelines E and J.
FORMAL FINDINGS
Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: FOR THE APPLICANT
a. For the Applicant.
Paragraph 2: FOR THE APPLICANT
a. For the Applicant.
Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and
CONCLUSIONS, supra.
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DECISION
In light of 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.
Richard A. Cefola
Administrative Judge