KEYWORD: Criminal Conduct; Personal Conduct
DIGEST: The Applicant has a history of minor criminal and dishonest conduct, primarily related
to driving offenses.  The majority of this conduct occurred between 2002 and 2004.  The
Applicant has taken responsibility for his conduct, changed his attitude about the law, and has
presented persuasive evidence that he is now eligible for a security clearance.  Clearance is
granted.
CASENO: 06-21516.h1
DATE: 08/10/2007
DATE: August 10, 2007
In Re:
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SSN: ------------------
Applicant for Security Clearance
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ISCR Case No. 06-21516
DECISION OF ADMINISTRATIVE JUDGE
WILFORD H. ROSS
APPEARANCES
FOR GOVERNMENT
Jeff A. Nagel, Esquire, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
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The Applicant has a history of minor criminal and dishonest conduct, primarily related to
driving offenses.  The majority of this conduct occurred between 2002 and 2004.  The Applicant has
taken responsibility for his conduct, changed his attitude about the law, and has presented persuasive
evidence that he is now eligible for a security clearance.  Clearance is granted.
STATEMENT OF THE CASE
On November 27, 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 December 15, 2006, and requested a
hearing.  The case was received by the undersigned on February 7, 2007, and a Notice of Hearing
was issued on February 16, 2007.
A hearing was held on March 15, 2007, at which the Government presented three
documentary exhibits.  Testimony was taken from the Applicant, who called one additional witness,
and also submitted three exhibits.  The transcript was received on April 5, 2007. 
FINDINGS OF FACT
The Applicant is 27, married and has a Bachelor’s degree in Technical Management.  He is
employed by a defense contractor as a Test Engineer, and he seeks to retain a Top Secret-level DoD
security clearance previously granted in connection with his employment in the defense sector.
The Government opposes the Applicant's request for a continued 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.
1.a.  The Applicant has consistently denied being arrested on November 26, 1999, for a
Public Peace Offense.  He submitted his DD-214, which shows that he was on an overseas tour with
the Army on that particular date.  (Applicant’s Exhibit C; Transcript at 16-17.)
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1.b.  The Applicant admitted receiving Non-Judicial punishment in the Army in 2002 for
having a fight with a fellow soldier.  He was sentenced to perform extra duty.  According to the
Applicant, this was one of three fights he has had in his life.  (Transcript at 17-18, 30-32.)
1.c.  In 2002, the Applicant missed a court date for a traffic citation and a warrant for Failure
to Appear was issued.  In November 2002 he was arrested on this charge.  He subsequently paid a
fine and the charge was dismissed.  The Applicant admitted he was at fault for missing the court date
and avers that such an occurrence will never happen again.  (Transcript at 19-20, 34-36.)
1.d.  The Applicant’s next involvement with the police happened in October 2003 when, after
a traffic stop, he was arrested for Driving on a Suspended License.  The Applicant avers that he did
not know his license was suspended for having too many driving infractions.  However, the
Applicant testified, “I went to Court and pled guilty to driving with a suspended license and I was
given five days in jail, in which I served three and I did pay my fine.”  (Transcript at 20-21, 36-37.)
1.e.  On November 2, 2004, the Applicant was arrested and charged with Reckless Driving
and Evading a Police Officer.  He pled Guilty to the Reckless Driving Charge, for which he received
a $761 fine and 36 months informal probation.  The probation will expire in April 2008.  The
available evidence indicates that this incident was not as serious as the charges indicate.  (Transcript
at 21-25, 38-42.)  It is also clear that the Applicant made a point of notifying his employer of the
incident so they could properly notify the Government.  (Government Exhibit 2.)
Paragraph 2 (Guideline E - Personal conduct).  The Government alleges in this paragraph that the
Applicant is ineligible for clearance because his conduct showed questionable judgment, lack of
candor, dishonesty, or unwillingness to comply with rules and regulations. 
2.a.  The Applicant was working as a bagger at a grocery store in 1998.  He freely admits that
he used extremely poor judgment when he stole some grocery items from his employer.  He was
terminated for this incident.  (Government Exhibit 1 at question 20; Transcript at 25-27, 43-44.)
2.b.  The Applicant used marijuana twice, in 1997 and August 2002.  The August incident
happened after the Applicant had been discharged from the Army, but his security clearance was still
active.  The Applicant did not know that his security clearance was still active at that time.
(Applicant’s Exhibit A; Transcript at 27-28, 46-48.)
2.c.  The Applicant’s conduct, set forth under Paragraph 1, above, will be viewed under this
Guideline as well.
Mitigation.
The Applicant received an Honorable Discharge from the Army in 2002.  During his service
he was awarded the Army Achievement Medal twice and also the Good Conduct Medal.  He is very
proud of his service to the nation.  (Applicant’s Exhibit A; Transcript at 45-46.)
The Applicant submitted evidence showing that he is successful at work.  He has recently
been granted a promotion and is viewed as an “important part of the operation.”  (Applicant’s
Exhibits B and C.)
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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]:
(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
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Applicant for clearance may be involved in criminal acts, or other incidents, that demonstrate 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
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 continued holding 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 or her 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 several criminal incidents over several years (Guideline J); and
that this conduct, along with other acts not criminal, indicates poor judgment, untrustworthiness and
unreliability by the Applicant (Guideline E).  
Under Guideline J the following Disqualifying Conditions apply: 31.(a) a single serious
crime or multiple lesser offenses; and 31.(d) individual is currently on parole or probation.  The
following Disqualifying Conditions are also applicable concerning the Guideline E allegations:
16.(c) credible adverse information in several adjudicative 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; and 16.(d) credible adverse
information that is not explicitly covered under any other guideline and may not be sufficient by
itself for an adverse determination, but which, when combined with all available information
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.  This includes but is not limited
to consideration of: . . . (3) a pattern of dishonesty or rule violations.
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The Applicant, on the other hand, has successfully mitigated the Government's case.  The
Applicant has, by his own admission, acted in an irresponsible manner on occasion when he was a
young person.  Three of the incidents occurred in 2002 and 2003.  The Applicant has only had a
minor traffic offense since November 2004, the date of his last arrest.  He remains on informal
probation until April 2008, but from his testimony and other evidence, it is clear that he has matured
and will engage in such acts in the future.  It is particularly worthwhile to note that the Applicant
made a point of keeping his employer notified of the judicial process of the 2004 case.  Based on the
evidence, the following Mitigating Conditions apply: 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; and
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.  Paragraph 1 is found for the
Applicant.
Turning to Guideline E, the Applicant admits that he used poor judgment in using marijuana
twice and in stealing groceries from his employer when a teenager.  It is obvious from the available
evidence that his involvement in such minor offenses is an aberration on the part of the Applicant
and will not be repeated.  Mitigating Condition 17.(c) applies: 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.  Paragraph 2 is found for the Applicant.
In addition, application of the General Factors is appropriate and supports a decision in the
Applicant's favor.  Several of the acts occurred because the Applicant was young and immature.  He
is older and his testimony shows that he has matured in knowing his responsibilities as a security
clearance holder (factor (4)).  The Applicant shows considerable evidence of rehabilitation (factor
(6)), he is motivated to not engage in such conduct in the future (factor (7)), and, under the
circumstances of this case, there is little to no likelihood of continuation or recurrence of the conduct
(factor (9)).  
On balance, it is concluded that the Applicant has successfully overcome the Government's
case opposing his request for a DoD security clearance.  Accordingly, the evidence supports a finding
for the Applicant as to the factual and conclusionary allegations expressed in Paragraphs 1 and 2 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: For the Applicant.
Subparagraphs 1.a. through 1.e.: For the Applicant.
Paragraph 2: For the Applicant.
Subparagraphs 2.a. through 2.c.: For the Applicant.
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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 the Applicant.
Wilford H. Ross
Administrative Judge