KEYWORD: Criminal Conduct
DIGEST: Applicant has a recurrent history of arrests over a five-year period involving domestic
violence.  In each case, the charges were challenged by Applicant for reasons she did nothing wrong.
The record lacks any evidence to challenge Applicant’s explanations of the events and circumstances
underlying her respective arrests.  The charges were dismissed in each of the cases without any
qualifications to which evidence of criminal conduct might be attributed to Applicant.  Considering
Applicant’s explanations and her overall record of meritorious service with her employer,
Applicant’s arrests are concluded to be unsubstantiated.  Clearance is granted.
CASENO: 06-18408.h1
DATE: 08/30/2007 
DATE:  August 30, 2007
In re:
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SSN: ------------
Applicant for Security Clearance
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ISCR Case No. 06-18408
DECISION OF ADMINISTRATIVE JUDGE
ROGER C. WESLEY
APPEARANCES
FOR GOVERNMENT
Julie R. Edmunds, Department Counsel
FOR APPLICANT
Robert M. Martinez
Personal Representative
FOR OFFICIAL USE ONLY
When unredacted this document contains information
EXEMPT FROM MANDATORY DISCLOSURE under the FOIA
Exemption 6 applies 2
SYNOPSIS
Applicant has a recurrent history of arrests over a five-year period involving domestic
violence.  In each case, the charges were challenged by Applicant for reasons she did nothing wrong.
The record lacks any evidence to challenge Applicant’s explanations of the events and circumstances
underlying her respective arrests.  The charges were dismissed in each of the cases without any
qualifications to which evidence of criminal conduct might be attributed to Applicant.  Considering
Applicant’s explanations and her overall record of meritorious service with her employer,
Applicant’s arrests are concluded to be unsubstantiated.  Clearance is granted.
STATEMENT OF THE CASE
On August 25, 2006, 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 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 Applicant, and recommended referral
to an administrative judge to determine whether clearance should be granted, continued, denied or
revoked.
Applicant responded to the SOR on May 7, 2007, and requested a hearing.  The case was
assigned to me on June 12, 2007, and was scheduled for hearing on July 23, 2007.  A hearing was
July 23, 2007, for the purpose of considering whether it would be clearly consistent with the national
interest to grant, continue, deny, or revoke Applicant’s security clearance. At hearing, the
Government's case consisted of two  exhibits; Applicant relied on one witness (herself) and three
exhibits.  The transcript (R.T.) was received on August 1, 2007.
PROCEDURAL ISSUES
Before the close of the hearing, Department Counsel moved to strike paragraph 1.e of the
SOR.  There being no objection from Applicant, and good cause shown, Department Counsel’s
motion was granted. 
SUMMARY OF PLEADINGS
Under Guideline J, Applicant is alleged to have been arrested on multiple occasions between
May 1999 and May 2004 (four in all) and charged with assault/domestic violence and related
charges, with the charges in each of the listed cases dismissed.  She is also alleged to have been
charged in January 1980 with unauthorized personnel in the barracks room, for which she was fined
a $100.00 a month for two months and placed on three months probation.
For her response to the SOR, Applicant admitted all but one of the separate charges.  She
denied only the January 1980 unauthorized personnel in barracks charges (which were subsequently
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removed from the SOR as a source of security concern).  Applicant provided explanations of the
circumstances associated with each of her domestic violence arrests.
STATEMENT OF FACTS
Applicant is a 44year-old assembly technician for a defense contractor who seeks a security
clearance.  The allegations covered in the SOR and admitted to by Applicant are incorporated herein
by reference and adopted as relevant and material findings.  Additional findings follow.
Applicant has been married for 23 years to the same husband (H) and has three children (ages
6, 7 and 11).  She also has a niece (age 20) who has been living with her since her enrollment in the
seventh grade (R.T., at 19).
  
Prior to 1999, Applicant had never been in any kind of trouble with law enforcement
authorities (R.T., at 20).  Applicant was three months pregnant in May 1999 and suspected H was
having an affair with another woman.  On her way home (with her son in the car) on May 9, 1999
(mother’s day), she passed by her uncle’s house.  In the driveway of her uncle’s house she observed
H and an another woman sitting atop of their family car.  Upon confronting H, she learned that he
had been having an affair with the woman (R.T., at 20-21).  Upset over what she learned, she threw
a small rock at H’s car window and shattered the window glass.  Some unidentified person, in turn,
then called the police  who responded to the call.  Once the police arrived, Applicant confirmed to
the police that she had thrown a rock at their car, which broke the window.   Based on Applicant’s
acknowledgment and H’s insistence, the police arrested Applicant and charged her with
assault/domestic violence, damage to property, and disorderly conduct.  Once she explained the
events to the court, the court referred her to domestic violence classes and deferred adjudication.
Once she documented completing the classes, the court dismissed the charges against her (R.T., at
23). 
The following week (on May 18, 1999), Applicant and H became involved in another
domestic argument upon his return home.  H threatened Applicant with calling the police and taking
their son from their home.  When she did not leave alone, he called the police.  When the police
arrived at their home, H claimed Applicant tore his shirt.  Despite Applicant’s denials, the police
placed her under arrest and escorted her to the local police station for booking.  Once in court to
answer charges of domestic violence/assault and domestic violence criminal damage, Applicant
persuaded the court that H was at fault and obtained a restraining order against his coming to their
home.  Pending charges against Applicant, in turn, were dismissed.
Soon after her May 1999 court appearances, Applicant and H reconciled.  They managed to
live together for a number of years in relative harmony before their marriage began to unravel over
renewed Applicant concerns about her husband’s fidelity.   
In May 2003, Applicant was approached by her brother (B), who asked to borrow money
from her.  B was renting a trailer from Applicant and H at the time and sometimes encountered
difficulties paying his  rent (R.T., at 23-24).  Applicant’s mother and B’s wife had passed away, and
B had few financial resources to care for his two girls (one being Applicant’s niece).  B’s financial
problems were compounded after he remarried to a woman who had three children of her own.  B
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had since married C and often pressed Applicant to lend him money to pay his rent (R.T., at 24).
Concerned about B and his daughters after their mother passed away, Applicant did not want to force
B to vacate the trailer (R.T., at 23-24). 
When Applicant arrived at B’s trailer, she was greeted by her niece, who said her father was
too ill to come out to talk with her.  Overhearing the niece’s request to leave with Applicant,
Applicant’s sister-in-law (C) interrupted Applicant’s conversation with her niece and intervened in
Applicant’s conversation with her niece.  Arguments ensued between Applicant and C (R.T., at 24,
39-40).  Applicant then left the trailer site without her niece and returned home.
Following her return home, a police officer came to the house and questioned her about
whether she had been to B’s trailer.  When Applicant responded affirmatively, the police officer
informed her that B’s wife claimed Applicant struck her in the arm (R.T., at 25).  Despite her denials,
the officer then placed her under arrest and took her to the police station to face charges of
assault/minor injury-domestic violence.  After telling her story of innocence to the court, the court
dismissed the charges against her (R.T., at 25-26).  Thereafter, H informed B and his wife that since
he could not control his wife, they must vacate the trailer (R.T., at 40). 
Following her 2003 arrest, Applicant did not speak to either B or C for a considerable period
of time.  She had maintained physical custody of her niece for a number of years when B called her
on or about May 31, 2004 to inquire about seeing his daughter. After telling Applicant that he and
his wife were separated, B told her that his other daughter missed her sister (Applicant’s niece) and
wanted to see her (R.T., at 26-28).  Believing everything was alright with B and his family, Applicant
consented to bringing  her niece over to B’s apartment.  
Once B told C that Applicant had been over to see him, she called the police and claimed
Applicant had come to her place and assaulted her (R.T., at 27-28).  A short time later, a police
officer came to Applicant’s house and asked if she had been to her sister-in-law’s house.  Applicant
replied she had not.  Despite Applicant’s denial, this police officer arrested Applicant for
assault/domestic violence, disorderly conduct and false report to law enforcement.  When Applicant
appeared in court to answer charges stemming from her May 2004 arrest, the charges were dismissed
(R.T., at 28).  Since the dismissal of these charges, Applicant has had no further contact with B and
her sister-in-law (R.T., at 30-32).
In the week preceding her security clearance hearing in this matter, Applicant became
involved in a domestic quarrel with H over the same woman H was seeing in 1999.  Applicant claims
H struck their son in the face (R.T., at 51-53).  Police investigated the incident but made no arrests
or report that can be documented. Applicant says she intends to seek a divorce from H (R.T., at 54)
and will ascertain whether H moved out of their house when she returns home after the hearing. 
 There are no available police reports to shed any further light on the events and
circumstances associated with any of Applicant’s arrests.  The FBI’s arrest identification record (see
ex. 2) reports only the individual arrests and supplies no additional information about the events and
circumstances and dispositions.  Without any more record evidence to counter Applicant’s
explanations of the underlying events, her explanations are entitled to acceptance.  
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Applicant has good references.  Her first-line supervisor and colleagues who have worked
with her over the past seven years and are familiar with her work habits describe her as a good team
player who is always available to help and train other personnel, and does so in a positive,
professional and trustworthy way (see ex. B; R.T., at 34-36).  Applicant is held in high esteem by
her colleagues and is considered a dedicated assembler.
Applicant is the recipient of numerous certificates and awards recognizing her service
achievements with her employer (see ex. C; R.T., at 34-35).  Her certificates and awards commend
her for her commitments and dedication to her employer over a 15-year period of service.
POLICIES
The revised Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information (effective September 2006) list Guidelines to be considered by judges in the decision
making process covering DOHA cases.  These Guidelines require the judge to consider all of the
"Conditions that could raise a security concern and may be disqualifying” (Disqualifying
Conditions), if any, and all of the "Mitigating Conditions," if any, before deciding whether or not a
security clearance should be granted, continued or denied.  The Guidelines do not require the judge
to assess these factors exclusively in arriving at a decision.  In addition to the relevant Adjudicative
Guidelines, judges must take into account the pertinent considerations for assessing extenuation and
mitigation set forth in E.2.2 of the Adjudicative Process of Enclosure 2 of the Directive, which are
intended to assist the judges in reaching a fair and impartial common sense decision.
Viewing the issues raised and evidence as a whole, the following adjudication policy factors
are pertinent herein:
Criminal Conduct
The Concern: 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.
Burden of Proof
By virtue of the precepts framed by the Directive, a decision to grant or continue an
applicant's security clearance may be made only upon a threshold finding that to do so is clearly
consistent with the national interest.  Because the Directive requires Administrative Judges to make
a common sense appraisal of the evidence accumulated in the record, the ultimate determination of
an applicant's eligibility for a security clearance depends, in large part, on the relevance and
materiality of that evidence.  As with all adversary proceedings, the Judge may draw only those
inferences which have a reasonable and logical basis from the evidence of record.  Conversely, the
Judge cannot draw factual inferences that are grounded on speculation or conjecture.
The Government's initial burden is twofold: (1) It must prove any controverted fact[s] alleged
in the Statement of Reasons and (2) it must demonstrate that the facts proven have a material bearing
to the applicant's eligibility to obtain or maintain a security clearance.  The required showing of
material bearing, however, does not require the Government to affirmatively demonstrate that the
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applicant has actually mishandled or abused classified information before it can deny or revoke a
security clearance. Rather, consideration must take account of cognizable risks that an applicant may
deliberately or inadvertently fail to safeguard classified information.
Once the Government meets its initial burden of proof of establishing admitted or
controverted facts, the burden of persuasion shifts to the applicant for the purpose of establishing his
or her security worthiness through evidence of refutation, extenuation or mitigation of the
Government's case.
CONCLUSIONS
Applicant is a meritorious satellite technician who has been the subject of a number of
domestic violence arrests (four altogether) between May 1999 and May 2004.   Security concerns
are  raised over Applicant’s arrest history, despite the ensuing dismissal of each of them.  
Applicant’s four domestic violence arrests warrant initial consideration of  two disqualifying
conditions of the  Adjudicative Guidelines for criminal conduct: DC 31a (a single serious crime or
multiple lesser offenses) and DC 31(c) (allegation or admission of criminal conduct, regardless of
whether the person was formally charged).  However, each of Applicant’s four arrests resulted in
dismissals of the underlying charges and no reports of statements from police, participants, or
witnesses that, if present, might serve to challenge Applicant’s claims of the events and
circumstances of the underlying events. 
Without any evidence to challenge Applicant’s explanations of the underlying events and
circumstances, the criminal conduct concerns that are based on her four respective arrests are not
substantiated.  True, she accepted and completed counseling under the court’s diversionary program
before the first May 1999 charges covering assault and property damage were dismissed.  Her
explanations, though, if believed by the court provide considerable provocation for her hurling a
small stone at the family vehicle.  The proven conduct in this first 1999 incident does not match the
charges, and these dismissed charges remain for the most part unsubstantiated as well.  
Applicant may rely on MC 32(c) (evidence that the person did not commit the offense) of the
guidelines for criminal conduct.  The arrests by themselves are insufficient to warrant continuing
security concerns about her judgment, reliability and trustworthiness.  Her first line supervisor and
colleagues hold her in high esteem and value her team work and professionalism over a considerable
period of time.  These collective impressions of Applicant speak positively of her character.  So, both
from a consideration of the applicable guidelines and from a whole person perspective, Applicant
meets all of the minimum requirements for continued eligibility to hold a security clearance.  Taking
into account all of the facts and circumstances developed in the record, favorable conclusions
warrant with respect to the allegations covered by subparagraphs 1.a through 1.d of the SOR.
In reaching my decision, I have considered the evidence as a whole, including each of the
E2.2 factors enumerated in the Adjudicative Guidelines of the Directive.
FORMAL FINDINGS
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In reviewing the allegations of the SOR and ensuing conclusions reached in the context of
the FINDINGS OF FACT, CONCLUSIONS, CONDITIONS, and the factors listed above, this
Administrative Judge makes the following FORMAL FINDINGS:
GUIDELINE J: (CRIMINAL CONDUCT): FOR APPLICANT
Sub-para. 1.a: FOR APPLICANT
Sub-para. 1.b: FOR APPLICANT
Sub-para. 1.c: FOR APPLICANT
Sub-para. 1.d: 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 Applicant’s security clearance.   Clearance is granted.
Roger C. Wesley
Administrative Judge