KEYWORD: Criminal Conduct; Personal Conduct
DIGEST: Applicant was convicted of misdemeanor theft in 1993, right after graduating from high
school and shortly before serving honorably in the Army for four years. Since his discharge, he has
performed classified work for a defense contractor, compiling an excellent record. In 2005, during
his first six months of marriage, he committed a misdemeanor domestic assault during an argument.
He successfully completed a rehabilitation and anger management program, has a very good
relationship with his wife, and has had no further incidents. His omission of these matters from his
security clearance application was not deliberate. Applicant mitigated security concerns arising from
his criminal conduct, and his personal conduct. Clearance is granted.
CASENO: 06-26613.h1
DATE: 07/31/2007
DATE:  July 31, 2007
In re:
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SSN: ------------
Applicant for Security Clearance
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ISCR Case No. 06-26613
DECISION OF ADMINISTRATIVE JUDGE
DAVID M. WHITE
APPEARANCES
FOR GOVERNMENT
Jeff A. Nagel, Esq., Department Counsel
FOR APPLICANT
Pro Se
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (August 2006) as1
implemented by Under Secretary of Defense Memorandum of Aug. 30, 2006 for use in adjudication of all cases in which
a SOR had not been issued by Sept. 1, 2006. These revised AG replaced those found in enclosure 2 of the Directive,
which is pending revision to incorporate them. Copies of the applicable AG were provided to Applicant with the SOR.
2
SYNOPSIS
Applicant was convicted of misdemeanor theft in 1993, right after graduating from high
school and shortly before serving honorably in the Army for four years. Since his discharge, he has
performed classified work for a defense contractor, compiling an excellent record. In 2005, during
his first six months of marriage, he committed a misdemeanor domestic assault during an argument.
He successfully completed a rehabilitation and anger management program, has a very good
relationship with his wife, and has had no further incidents. His omission of these matters from his
security clearance application was not deliberate. Applicant mitigated security concerns arising from
his criminal conduct, and his personal conduct. Clearance is granted.
STATEMENT OF THE CASE
Applicant reapplied for a security clearance on February 28, 2006, in conjunction with his
employment by a defense contractor as a communications technician. On March 30, 2007, the
Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to
Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry,
dated February 20, 1960, as amended, and Department of Defense Directive 5220.6, Defense
Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as
amended. The SOR detailed reasons, under Guideline J (Criminal Conduct), and Guideline E
(Personal Conduct) of the revised Adjudicative Guidelines (AG),  why DOHA could not make the1
preliminary affirmative finding under the Directive that it is clearly consistent with the national
interest to grant a security clearance for Applicant, and recommended referral to an administrative
judge to determine whether a clearance should be granted, continued, denied, or revoked.
Applicant responded to the SOR allegations in a notarized letter dated April 9, 2007, and
elected to have a hearing before an administrative judge. On May 15, 2007, the case was assigned
to another administrative judge. The case was  reassigned to me on May 17, 2007. A notice of
hearing was issued on June 6, 2007, and the hearing was held as scheduled on June 26, 2007. The
Government offered 3 exhibits that were marked as Government Exhibits (GE) 1 through 3, and
admitted without objection. Applicant testified, and offered 7 exhibits that were marked Applicant
Exhibits (AE) A through G, and admitted without objection. DOHA received the hearing transcript
(Tr) on July 6, 2007.
FINDINGS OF FACT
Applicant admitted the truth of some of the factual allegations set forth in SOR ¶¶ 1.a, and
1.b, pertaining to criminal conduct under AG J. Those admissions are incorporated herein as findings
of fact. He admitted answering incorrectly, but denied intentionally falsifying material facts
concerning his criminal history on his security clearance application as alleged in SOR ¶¶ 2.a and
GE 1 (e-QIP security clearance questionnaire, dated Feb. 28, 2006) at 1, 18-19, 23-24; Tr at 23. 2
GE 3 (FBI Identification Record dated Mar. 22, 2006) at 1; Tr at 37-40, 50-54.3
GE 2 (Applicant’s DD-214); AE A, AE B (Reference letters dated Jun. 25 & 22, 2007); Tr at 23, 29-30, 40-42.4
GE 1 at 13, 16-17; Tr at 57-58.5
GE 3; Tr at 35-36, 42-49, 56-57. 6
3
2.b. After a complete and thorough review of the evidence in the record, and upon due consideration
of same, I make the following findings of fact:
Applicant is a 32-year-old employee of a defense contractor seeking to renew a security
clearance he has held since he served on active duty in the Army from 1994 to 1998.   On July 12,2
1993, right after he graduated from high school and before entering the Army, he was arrested while
trying to remove a suitcase full of ammunition from a school bus, on school grounds, that was being
used for storage of excess school equipment. He explained that he was removing the ammunition
because he thought it was being hidden there in connection with gang activity, and he wanted to
prevent gang members from having access to it. He was charged with burglary and receiving known
stolen property, both felonies. He pled guilty to, and was convicted of, misdemeanor charges of theft
and tampering with a vehicle. He was sentenced to perform community service, which he completed,
and to probation. The probation was dropped because he entered the Army.  3
After serving honorably in the Army, where he earned an Army Commendation Medal, an
Army Achievement Medal, and a Good Conduct Medal, Applicant was discharged and began his
current employment. He maintained his security clearance and has had no security incidents or
violations. His work performance has been outstanding.  4
Applicant married his wife in October 2004. Her 13-year-old daughter and their 2-year-old
son live with them.  In March 2005, Applicant and his wife had an argument when he told her that5
he had looked at pornographic magazines in the past, but did not intend to do so in the future. She
struck him in anger, but he did not immediately respond. After about a half hour, he confronted her
about striking him, and in the ensuing argument he put his hands around her neck with sufficient
force to cause bruising. He was arrested and convicted for inflicting corporal injury on a spouse or
co-habitant. His sentence included ten days in jail and three years probation. He successfully
completed a year-long Batterer’s Intervention Program of weekly two-hour sessions. After that and
a home visit, he was removed from supervised probation. He has been on unsupervised “court
probation” ever since, without further incident. This will expire in May 2008. He described his
current relationship with his wife as “very good.” He reported the incident and resulting legal actions
to his supervisor and employer immediately.  6
When Applicant completed his security clearance application, he answered “No” to questions
23(a) (“Have you ever been charged with or convicted of any felony offense?”) and 23 (f) (“In the
last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in
response to a, b, c, d, or e above? (Leave out traffic fines of less than $150 unless the violation was
alcohol or drug related.)”). At the time, he did not recall that the 1993 incident initially involved
felony charges, and should have been listed in response to question 23(a). Since receiving the LOI,
See Applicant’s response to the LOI, dated Apr. 9, 2007; Tr at 19-23, 52-53, 58. Note that he also (properly)7
answered no to question 23(b) concerning firearms or explosive offenses since violation of no such laws were involved
in the incident. Tr at 53-54.
Tr at 37, 47-49, 54-56, 58-59.8
AEs A, B, C; Tr at 28-31.9
AEs D, E, F, G.10
AG  ¶ 2.11
4
he investigated and now realizes that he was originally charged with felony offenses before pleading
guilty to, and being convicted of, the misdemeanors.  7
Applicant began filling out GE 1 before his 2005 arrest for injuring his wife. At the time he
checked “No” for question 23(f), that answer was true. By the time he and his company finally got
around to completing the form and signing the certifications, he neglected to go back and change that
answer, as he candidly acknowledged he should have. He had promptly reported the incident to his
employer, and had no intention of deceiving the government about it. He freely disclosed the incident
during the interview process. He did not intend to conceal his police record in either instance, he
merely answered incorrectly by mistake.  Applicant’s testimony in this regard was entirely credible.8
Applicant presented testimony from his supervisor and mentor, as well as three letters of
recommendation. All spoke highly of his character, work performance, reliability, trustworthiness
and loyalty.  He also presented a letter of appreciation and documentation concerning three9
performance awards he has earned at work.10
POLICIES            
The revised AG that replaced Enclosure 2 of the Directive set forth adjudicative guidelines
which must be considered in the evaluation of security suitability. In addition to brief introductory
explanations for each guideline, the adjudicative guidelines are divided into disqualifying conditions
(DC) that may raise security concerns, and mitigating conditions (MC) that may reduce or negate
security concerns. Applicable DCs and MCs must be considered in deciding whether to grant,
continue, deny or revoke an individual’s eligibility for access to classified information. Conditions
that could raise a security concern and may be disqualifying, as well as those which would mitigate
security concerns, are set forth and discussed in the conclusions section below.
An administrative judge need not view the adjudicative guidelines as inflexible, ironclad
rules of law. Instead, acknowledging the complexities of human behavior, these guidelines are
intended to be applied in conjunction with the factors set forth in the Adjudicative Process provision
of the Directive,  to assist the administrative judge in reaching fair and impartial, common sense11
decisions.
The entire decision-making process is a conscientious scrutiny of a number of variables
known as the “whole person concept.” All available, reliable information about the person, past and
Id., at ¶¶ 2(b), 2(c).12
“Substantial evidence [is] such relevant evidence as a reasonable mind might  accept as adequate to support13
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
Directive ¶ E3.1.14.14
Directive ¶ E3.1.15.15
ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005); ?The Administrative Judge [considers] the record16
evidence as a whole, both favorable and unfavorable, evaluate[s] Applicant’s past and current circumstances in light of
pertinent provisions of the Directive, and decide[s] whether Applicant ha[s] met his burden of persuasion under Directive
¶ E3.1.15.”  ISCR Case No. 04-10340 at 2 (App. Bd. July 6, 2006). 
5
present, favorable and unfavorable, should be considered in making a meaningful decision. The
Adjudicative Process factors which an administrative judge should consider, in addition to the
applicable guidelines, are: (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
extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other
permanent 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.
Protection of the national security is the paramount consideration, so the final decision in
each case must be arrived at by applying the standard that issuance of a clearance must be clearly
consistent with the interests of national security. Any doubt as to whether access to classified
information is clearly consistent with national security must be resolved in favor of the national
security.   In reaching this decision, I have drawn only those conclusions that are reasonable, logical12
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.”  The13
burden of producing evidence initially falls on the government to establish a case which
demonstrates, in accordance with the Directive, it is not clearly consistent with the national interest
to grant or continue an applicant's access to classified information. “Department Counsel is
responsible for presenting witnesses and other evidence to establish facts alleged in the SOR that
have been controverted.”   “The applicant is responsible for presenting witnesses and other evidence14
to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department
Counsel, and [Applicant] has the ultimate burden of persuasion as to obtaining a favorable clearance
decision.”  Once it has met its initial burden of production, the burden of persuasion (including any15
burden to disprove a mitigating condition) never shifts to the government.  16
A person seeking access to classified information seeks to enter 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 that
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,
AG ¶ 30.17
6
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. Section
7 of Executive Order 10865 specifically provides that any adverse industrial security clearance
decision shall be “in terms of the national interest and shall in no sense be a determination as to the
loyalty of the applicant concerned,” so the decision to deny an individual a security clearance is not
necessarily a determination as to the loyalty of the applicant. It is merely an indication the applicant
has not met the strict guidelines the President and the Secretary of Defense have established for
issuing a clearance.
CONCLUSIONS
As set forth in the Regulation, every recommended personnel security decision must be a fair
and impartial overall common sense decision based on all available evidence, both favorable and
 unfavorable.  The decision must be arrived at by applying the standard that the grant or continuance
of a security clearance or access to classified information is clearly consistent with the interests of
national security.  
Criminal Conduct
“Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness.
By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules
and regulations.”   I have considered all the Guideline J Criminal Conduct Disqualifying Conditions17
(CCDCs) and find that only CCDC 31(a), (c), and (d) apply.  There is no information that would
cause any other CCDC to apply.
CCDC 31(a) (“a single serious crime or multiple lesser offenses”) applies because Applicant
has been convicted of two crimes. His theft conviction started as a felony case, but was reduced to
misdemeanor charges. His misdemeanor domestic violence conviction was serious enough to cause
the court to impose ten days in jail and three years on probation. Whether either of these standing
alone would constitute a single serious crime need not be determined, since there was a second
conviction, and the facts of the offenses speak for themselves in terms of security clearance concerns.
The 1993 offense demonstrated bad judgment by breaking and entering with the intention of
confiscating contraband ammunition, when he should have involved law enforcement authorities in
the confiscation. The 2005 offense demonstrated a lack of self-control. Each is of potential security
concern. 
CCDC 31(c) (“allegation or admission of criminal conduct, regardless of whether the person
was formally charged, formally prosecuted or convicted”) applies as Applicant admitted to
committing both offenses listed in the SOR. The security concerns raised are the same as those noted
above. 
CCDC 31(d) (“individual is currently on parole or probation”) also applies.  Applicant’s three
years of supervised probation have been reduced to only one year, after he successfully completed
AG ¶ 15.18
7
his rehabilitation program, but he will still technically be on unsupervised probation until May 2008.
However, there is nothing about the circumstances of Applicant’s probation that raises any security
concerns independent of the underlying crime itself. It has served its purpose and been effective in
preventing any recurrence.
Two of the Guideline J Criminal Conduct Mitigating Conditions (CCMCs) also apply.
CCMC 32(a) (“so much time has elapsed since the criminal behavior happened, or it happened under
such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment”) applies to Applicant’s offenses, both individually
and collectively. The 1993 offense occurred 14 years ago, when he was very young and naive. This
is no longer the case. The 2005 offense occurred during the first 6 months of marriage, with a new
baby in the home, and before Applicant and his wife developed their communication and coping
skills. Both have fully reconciled and their relationship now is very good. Applicant has developed
his anger management and stress There have been no further incidents over the past two years. This
one incident of losing self control was out of character, and given the intervening time and changed
circumstances, no longer casts doubt on his reliability, trustworthiness or good judgment. The two
offenses were so different, and occurred so many years apart, that they do not reflect a pattern of
criminality or disregard for following laws, rules and regulations.
CCMC 32(b) (“the person was pressured or coerced into committing the act and those
pressures are no longer present in the person’s life”), and CCMC 32(c) (“evidence that the person
did not commit the offense”) do not apply.  There was no pressure or coercion to cause him to
commit either the theft offense or the assault, which was not in immediate response to his wife
hitting him, but occurred a half hour later. Applicant admitted that he did commit the offenses.
Finally, CCMC 32(d) (“there is evidence of successful rehabilitation; including but not
limited to the passage of time without recurrence of criminal activity, remorse or restitution, job
training or higher education, good employment record, or constructive community involvement”)
fully applies. He learned his lesson from the theft conviction, and has done nothing remotely similar
since. He successfully completed the Batterer’s Intervention Program, has found successful coping
skills, and has a very good relationship with his wife. He was demonstrably remorseful about having
assaulted her, and has an excellent employment record.
Personal Conduct
“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.”18
Applicant did not remember that his 1993 offense originally involved felony charges when
he completed his security clearance application. He completed the question on which he should have
listed his 2005 offense before that offense occurred. He did not update the answer before signing the
form, but that was through oversight and not with any intent to deceive either his employer or the
The Appeal Board has cogently explained the process for analyzing falsification cases, stating:19
(a) when a falsification allegation is controverted, Department Counsel has the burden of proving
falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent
or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a
whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent
or state of mind at the time the omission occurred. [Moreover], it was legally permissible for the Judge
to conclude Department Counsel had established a prima facie case under Guideline E and the burden
of persuasion had shifted to the applicant to present evidence to explain the omission. 
ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9,
2004)).
8
government. His employer was fully informed, and he freely discussed the incident during the
interview process. The Regulation’s personal conduct guideline requires deliberate omission,
concealment or falsification of relevant and material facts to establish Personal Conduct
Disqualifying Condition (PCDC) 16(a) (“deliberate omission, concealment or falsification of
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 security clearance eligibility or trustworthiness, or award fiduciary responsibilities”
(emphasis added)), or PCDC 16(b) (“deliberately providing false or misleading information
concerning relevant facts to an employer, investigator, security official, competent medical authority,
or other official government representative” (emphasis added)). Applicant’s omission of  information
about his criminal history from his Security Clearance Application was not deliberate, but arose from
misunderstanding and inattention.   No other PCDC applies. 19
Whole Person Analysis 
I have considered the “whole person” concept in evaluating Applicant’s risk and vulnerability
in protecting our national interests. He committed a misdemeanor theft offense, at which  he was
caught in the act, when he was just out of high school, some 14 years ago. Two years ago, he
committed a misdemeanor domestic violence offense under stressful circumstances during the first
six months of his marriage. He successfully completed a rehabilitation and anger management
program, has not re-offended, and now has a very good relationship with his wife. These two
incidents are sufficiently different in nature and motivation, and sufficiently separated in time, that
they do not demonstrate a pattern of criminality, or show inability or unwillingness to follow laws,
rules and regulations. His omission of these incidents from his security clearance application was
not deliberately deceptive, and raises no security concerns. There is no potential for pressure,
coercion, exploitation or duress, and recurrence is highly unlikely given his sincere remorse.
Accordingly, I do find that Applicant has fully mitigated the security concerns raised by his criminal
conduct. It is clearly in the interest of national security to grant or continue his access to classified
material.
9
FORMAL FINDINGS           
            Formal Findings For or Against Applicant on the allegations set forth in the SOR, as required
by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1, Guideline J: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant 
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
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 Applicant. Clearance is
granted.
David M. White             
Administrative Judge