KEYWORD: Criminal Conduct
DIGEST: The Applicant was involved in two criminal incidents in 2001 and 2004.  The Applicant
remains on probation for the second incident.  In addition, the Applicant remains personally involved
with the other participant in both criminal incidents.  Insufficient mitigation is shown to overcome
the evidence of poor judgment, unreliability and untrustworthiness.  Clearance is denied.
CASENO: 06-19376.h1
DATE: 07/25/2007
DATE: July 25, 2007
In Re:
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SSN: ----------------
Applicant for Security Clearance
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ISCR Case No. 06-19376
DECISION OF ADMINISTRATIVE JUDGE
WILFORD H. ROSS
APPEARANCES
FOR GOVERNMENT
Jeff Nagel, Esquire, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
The Applicant was involved in two criminal incidents in 2001 and 2004.  The Applicant
remains on probation for the second incident.  In addition, the Applicant remains personally involved
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with the other participant in both criminal incidents.  Insufficient mitigation is shown to overcome
the evidence of poor judgment, unreliability and untrustworthiness.  Clearance is denied.
STATEMENT OF THE CASE
On November 28, 2006, 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 January 18, 2007, and requested a hearing.
The case was originally assigned to another Administrative Judge on February 13, 2007.  The case
was reassigned to me on February 21, 2007, and a Notice of Hearing was issued on February 27,
2007.
A hearing was held on March 21, 2007, at which the Government presented three
documentary exhibits.  Testimony was taken from the Applicant, who also submitted one exhibit.
The transcript was received on March 30, 2007. 
FINDINGS OF FACT
The Applicant is 47, single, and has a high school diploma.  He is employed by a defense
contractor as a technician, and he seeks to obtain a DoD security clearance in connection with his
employment in the defense sector.
The Government opposes the Applicant's request for a 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.
In May 2001 the Applicant was driving the car of a friend (Mr. X).  During a traffic stop by
police, Mr. X’s car was searched and drugs were found in the possession of Mr. X and also in the
possession of the Applicant.  The Applicant was arrested and charged with felony counts of
Possession and Transportation of Narcotics or Controlled Substances and a misdemeanor count of
Possession of Over 1 Ounce of Marijuana.  The Applicant pled Nolo Contendere to the third count
and the felony counts were dismissed.  He was sentenced to, and completed, an 18 month diversion
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program.  The case against the Applicant was dismissed as a result of his successful completion of
the diversion program.  (Transcript at 19-22, 32-34;  Government Exhibit 3; Applicant’s Exhibit C.)
The Applicant remained friends with Mr. X even after the 2001 incident.  Some time later
Mr. X was not able to purchase an automobile because of his bad credit.  The Applicant obtained an
automobile loan and purchased a car for Mr. X’s use.  In 2004 Mr. X informed the Applicant that
the car had been stolen.  Since the car was licensed in the Applicant’s name, he was required to file
a police report concerning the stolen automobile.  In reality, the automobile had not been stolen by
strangers, but by Mr. X himself.  
The police and the insurance company discovered Mr. X’s fraud and he was arrested for
Grand Theft - Auto.  Because the Applicant had filed a false police report, albeit unknowingly, he
was arrested for Falsely Reporting A Crime and being a Principal Party to a Crime.  The first count
was dismissed and the Applicant plead guilty to Count 2.  He was sentenced to three years probation
and to pay a fine.  As of the date of the hearing, the Applicant continued to be on probation.
(Transcript at 22-29, 34-38.)
The Applicant has known Mr. X since 1987.  Except when he is in jail, Mr. X has lived with
the Applicant and the Applicant’s sister since 2000.  The Applicant testified that, without the
generosity of the Applicant, Mr. X would be homeless.  (Transcript at 46-48.)  At one point in his
testimony, the Applicant stated that Mr. X has changed as a person.  (Transcript at 41-42.)  Later,
however, the Applicant stated:
No, I don’t trust him [Mr. X].  And we do have new locks on the bedroom
door - - my sister’s bedroom door and her bathroom so nothing disappears.  There is
nothing in my room to take; so, he is not taking anything from there.  Basically, it’s
just so he is not homeless.  (Transcript at 44.)
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 18-19, “In evaluating the
relevance of an individual’s conduct, the [Administrative Judge] should consider the following
factors [General Factors]:
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(1) The nature, extent and seriousness of the conduct
(2) The 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
behavior changes
(7) The motivation for the conduct
(8) The potential for pressure, coercion, exploitation or duress
(9) 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 demonstrates 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
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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 granting of a security
clearance.  If such a case has been established, the burden then shifts to the Applicant to go 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 a security clearance.
In this case the Government has met its initial burden of proving by substantial evidence that
the Applicant has been involved in two criminal offenses (Guideline J).
The Applicant, on the other hand, has not introduced persuasive evidence in rebuttal,
explanation or mitigation which is sufficient to overcome the Government's case against him.  The
Applicant showed extremely poor judgment in being involved in two incidents of criminal activity,
both involving Mr. X.  This poor judgment continues to be shown by the Applicant in that he has
allowed Mr. X, a known criminal who the Applicant does not trust, to live with him for several
years. 
The following Disqualifying Conditions apply to the facts in this case: 31.(a) A single serious
crime or multiple lesser offenses; and 31.(d) Individual is currently on parole or probation.  None
of the Mitigating Conditions apply, specifically because there is evidence, set forth above, that casts
doubt on the Applicant’s reliability, trustworthiness and good judgment.  In addition, under the
particular facts of this case, there is insufficient evidence of successful rehabilitation.
I have also considered this case under the Whole Person concept.  Using the General Factors,
I am also unable to find that the Applicant possesses the requisite good judgment, reliability and
trustworthiness required of security clearance holders.  I have particular concerns with Factors (6)
The presence or absence of rehabilitation and other permanent behavioral changes, (8) The
potential for pressure, coercion, exploitation, or duress, and (9) The likelihood of continuation or
recurrence.
On balance, it is concluded that the Applicant has failed to overcome the Government's
information opposing his request for a security clearance.  Accordingly, the evidence supports a
finding against the Applicant as to the 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: Against the Applicant.
Subparagraphs 1.a. and 1.b.: Against the Applicant.
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DECISION
In light of all 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 the Applicant.
Wilford H. Ross
Administrative Judge