DATE: September 17, 2007
In re:
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SSN:  -----------
Applicant for Security Clearance
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ISCR Case No. 05-15174
DECISION OF ADMINISTRATIVE JUDGE
ELIZABETH M. MATCHINSKI
APPEARANCES
FOR GOVERNMENT
Fahryn Hoffman, Esq., Department Counsel
FOR APPLICANT
Pro se
SYNOPSIS
Applicant was charged with larceny in April 2001 for stealing a computer memory chip from
a university computer where he was a student. He did not reveal that arrest on his security clearance
application and lied about his involvement when interviewed by a government agent. He is ashamed
of his misconduct, but it is not enough to mitigate the serious criminal conduct and personal conduct
concerns. Clearance is denied.
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STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a
security clearance for Applicant. As required by  ¶ E3.1.2 of Department of Defense Directive
5220.6 (Jan. 2, 1992), as amended, DOHA issued a Statement of Reasons (SOR) on December 14,
2006, detailing the basis for its decision–security concerns raised under Guideline J (Criminal
Conduct) and Guideline E (Personal Conduct) of the revised Adjudicative Guidelines (AG) issued
on December 29, 2005,  and implemented by the Department of Defense effective September 1,
2006. The guidelines were provided to Applicant when the SOR was issued. Applicant answered the
SOR on February 20, 2007, and elected to have a hearing before an administrative judge. The case
was assigned to me on May 8, 2007.
I convened a hearing on August 21, 2007, to consider whether it is clearly consistent with the
national interest to grant or continue a security clearance for Applicant. At the hearing, five
Government exhibits (Ex. 1- 5 ) and four Applicant exhibits (A-D) were admitted. Testimony was
taken from the Applicant. DOHA received the hearing transcript (Tr.) on September 5, 2007.
FINDINGS OF FACT
DOHA alleged under Guideline J that Applicant was charged in April 2001 with larceny
under $250 and larceny from a building (SOR ¶ 1.a), and he committed  a felony violation under 18
U.S.C. § 1001 because of the conduct alleged under Guideline E (SOR ¶ 1.b). Under Guideline E,
Applicant was alleged to have deliberately not disclosed his April 2001 arrest on his June 2002
security clearance application (SF 86) (SOR ¶ 2.a), and to have falsely denied in a March 2003 sworn
statement that he had stolen a compute memory chip from a university computer in 2001 (SOR ¶
2.b).
In his Answer, Applicant admitted the arrest and theft of the computer memory chip. While
he also admitted that he falsified material facts on his SF 86 by deliberately not listing his arrest and
in his sworn statement by denying the theft of the computer chip, he explained he acted on the advice
of the attorney who represented him at the time of his arrest. The attorney told him that since his case
was continued without a finding, it would "go away" after six months and he would never have to
tell anyone of the incident and it could not be held against him. Applicant apologized for his poor
judgment, and indicated he had taken several courses in ethics and security training as well and
sought legal counseling to ensure against recurrence.
After a thorough review of the pleadings, exhibits, and transcript, I make the following
findings of fact:
Applicant is a 26-year-old systems engineer who has been employed by a defense contractor
since June 2002. He started as an intern while he was still in college, and held an interim secret
clearance without incident for about four and one-half years until it was withdrawn.  
In September 1999, Applicant began his college studies in engineering at a branch of the state
university. In March 2001, Applicant stole a computer memory chip valued at $100 from a
university-owned computer located in a campus computer lab. He had been informed by his
The date of the hearing and the specific findings of the school judicial officer were not made available for my1
review.
The copy of the statement admitted into evidence as Exhibit 3 does not bear Applicant’s signature as it is2
missing the third of three pages.  Notwithstanding that it is incomplete, it was admitted as Applicant filed no objection
to it and he testified that he initialed each paragraph, including those included in Exhibit 3 (see Tr. 42).
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room/suite mate (student X) of the easy access to the memory chip and stole it because he wanted
to add memory to his personal computer. On April 4, 2001, a resident student informed campus
police that he observed student X remove a flat screen computer monitor and accompanying power
adapter from a computer lab on March 16, 2001. During the course of the investigation into the
thefts, student X admitted to campus police that he had stolen the monitor and that the missing
memory chip had been taken by Applicant. When confronted by campus police, Applicant
immediately turned over the memory chip. He provided the police with a written statement at the
station, indicating that he had taken the random access memory about a month ago; that the front of
the case had been pried off already when he took the chip (“I was wrong for taking it but all the work
had already been done and was out in the open.” Ex. 4).  On April 18, 2001, Applicant was charged
with one count of larceny under $250 and with one count of larceny from a building. On May 10,
2001, the larceny under $250 charge was continued without a finding until November 8, 2001, on
payment of $100 costs and $35 victim witness assessment. The larceny from a building charge was
dismissed. On November 7, 2001, Applicant’s case was dismissed without a finding.
Applicant also had a hearing before a university judicial officer as to whether he should face
disciplinary action from the university, including possible expulsion. Applicant was allowed to stay
in school,  but was required to perform 40 hours of service at the college.1
In June 2002, Applicant began working for his employer as an intern. About two weeks later,
he completed a security clearance application (SF 86) in which he responded “NO” to the police
record inquiries, including question 26 [“In the last 7 years, have you been arrested for, charged with,
or convicted of any of any offense(s) not listed in modules 21, 22, 23, 24, or 25? (Leave out traffic
fines of less than $150 unless the violation was alcohol or drug related.) For this item, report
information regardless of whether the record in your case has been ‘sealed’ or otherwise stricken
from the record. The single exception to this requirement is for certain convictions under the Federal
Controlled Substances Act for which the court issued and [sic] expungement order under the
authority of 21 U.S.C. 944 or 18 U.S.C. 3607.”]. Applicant intentionally did not list the 2001 larceny
charges because he understood from the attorney who had represented him for the offense that there
would be no record of it since it had been dismissed without a finding. Applicant made no inquiries,
including of legal or security personnel, whether he was justified in leaving off the charge.
On or about March 27, 2003, Applicant was interviewed by a special agent of the Defense
Security Service about the misdemeanor larceny charges filed against him in April 2001.  Applicant2
admitted he had been charged, but falsely claimed that he had purchased the memory chip for $50
from student X, his room/suite mate at the time, not knowing that it had been stolen, that student X
had implicated him in the theft to get a lighter sentence for himself. Applicant denied that he had
stolen anything from the school (“I never stole any computer items, or anything else from the school,
at any time. I never admitted to stealing anything and I never actually stole anything.” see Ex. 3).
Applicant also maintained that he had been “completely exonerated” at a school judicial officer
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hearing. Concerning his failure to list the offense on his SF 86, Applicant explained that either his
lawyer or a police sergeant had told him that the charges would be “wiped out” after six months, and
it would be as if it never happened. Accordingly, “assuming that no record would be found,” he
intentionally did not list the charge on his SF 86 even though he knew he was required to list it.
In May 2004, Applicant was awarded his bachelor of science degree in electrical engineering.
As an entry-level test design engineer I, he met all significant performance objectives/expectations
in 2004 and 2005. Willing to step up and perform what was asked of him, Applicant fully supported,
and developed good working relationships, with his team leadership and his peers. As of his
evaluation in late 2005, he had exhibited great potential as an engineer. On the recommendation of
his department manager and the director of systems engineering, Applicant was promoted to systems
engineer effective November 25, 2006, at an annual salary of $64,071.07. As of August 2007, he was
working as an aircraft integrator for a helicopter-based missile defense system. Applicant handled
classified material regularly until his interim secret clearance was withdrawn. No evidence of any
violations of security procedures was presented.
Applicant has taken advantage of several online and in-person training courses offered by his
employer covering topics related to his specific position, to employee ethics, and to security
awareness. As of February 2007, he had earned 119 training hours.
POLICIES
“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S.
518, 528 (1988). As Commander in Chief, the President has “the authority to . . . control access to
information bearing on national security and to determine whether an individual is sufficiently
trustworthy to occupy a position . . . that will give that person access to such information.” Id. at 527.
The President authorized the Secretary of Defense or his designee to grant applicants eligibility for
access to classified information “only upon a finding that it is clearly consistent with the national
interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb.
20, 1960). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with
the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App.
Bd. Dec. 19, 2002).
The revised Adjudicative Guidelines set forth potentially disqualifying conditions (DC) and
mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an
applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3
of the Directive. The decision to deny an individual a security clearance is not necessarily a
determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. 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. 
18 U.S.C. § 1001 provides in part:3
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the Government of the United States, knowing and
willfully: (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact: (2) makes
any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false
writing or document knowing the same to contain any materially false, fictitious, or fraudulent
statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.
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CONCLUSIONS
Guideline J—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. (AG ¶ 30) Applicant’s theft of the computer memory chip from a university
computer lab implicates Guideline J disqualifying conditions (DC) ¶ 31(a), a single serious crime
or multiple lesser offenses, and ¶ 31(c), allegation or admission of criminal conduct, regardless of
whether the person was formally charged, formally prosecuted or convicted, irrespective of the
dismissal of the larceny charge after six months. Moreover, Applicant committed felony criminal
conduct in violation of 18 U.S.C. § 1001 by deliberately concealing that theft from the government
when he completed his SF 86 and when he was interviewed by the DSS agent (see Guideline E,
supra).  DC ¶ 31(c) applies to his misrepresentations.3
Applicant stole the computer chip when he was only 19, more than six years before his
security clearance hearing. Yet Applicant cannot avail himself of the benefit of mitigating condition
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. His larceny conduct cannot be viewed in isolation
from his more recent criminal concealment of his involvement in the theft. Applicant’s contributions
to his employer, and his efforts to acquire ethics training in particular, reflect some reform as well
as maturation (See MC ¶ 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).
However, doubts persist about Applicant’s rehabilitation where he continues on some level to justify
or minimize his misconduct. When asked by Department Counsel why he stole the computer chip,
Applicant responded, “There was a lot of other students doing the same thing at the time and a
couple other students showed me how easy it was, and it was just extremely bad, irresponsible peer
pressure.” (Tr. 44) When he answered the SOR, Applicant indicated that he lied to the DSS agent
because his attorney had told him he did not have to tell anyone about it, and he feared the
information would be used against him, “that [he] would lose [his] internship without being given
the chance to explain.”
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Guideline E—Personal Conduct
Applicant was required to report his arrest for misdemeanor larceny valued under $250 and
larceny from a building on his SF 86 completed in June 2002, even though his case had been
dismissed in November 2001.  He elected to not do so. Under Guideline E, 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.
(AG ¶ 15) In his Answer, Applicant suggested that he acted in good faith on the advice of the
attorney who represented him on the larceny charges:
He told me the effect of ‘continued without a finding’ is I would not have to tell
anyone of the incident at all and that this incident could never be held against me. I
now know that I should not have answered question 26 on the SF 86 like I did  I
should have stated all the facts even if I was unsure, regardless of what my attorney
told me to do. I also now know that I should have asked the security people who were
helping me at the time for guidance.
At his security clearance hearing, he reiterated that he understood he would never have to tell anyone
what happened. (Tr. 40). A good faith belief, albeit mistaken, that the charges were not required to
be reported would negate the willful intent that raises the security concern under ¶ 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. Yet when questioned by the DSS agent in March 2003,
Applicant indicated that while he had been told by his attorney that the larceny charge would be
“wiped out, he admitted he knew he was required to list the charge on his SF 86 but assumed no
record would be found so he did not disclose it (see Ex. 3). DC ¶ 16(a) applies.
Had Applicant acted in good faith, he would not have lied about his involvement in the theft
when questioned by the DSS agent. Instead, he falsely claimed to the agent that he had purchased
the memory chip from student X, had no reason to believe it had been stolen, and that he never stole
any computer items from the school. His deliberate misrepresentations to the DSS agent not only
negate any claim of good faith reliance, but are potentially security disqualifying in their own right.
Guideline E DC ¶ 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, is also implicated.
By lying to the agent in March 2003, Applicant compounded the security concerns raised by
his SF 86 omission. MC ¶ 17(a), the individual made prompt, good-faith efforts to correct the
omission, concealment, or falsification before being confronted with the facts, clearly does not apply.
Nor does the evidence support favorable consideration of MC ¶ 17(b), the refusal or failure to
cooperate, omission, or concealment was caused or significantly contributed to by improper or
inadequate advice of authorized personnel or legal counsel advising or instructing the individual
specifically concerning the security clearance process. Upon being made aware of the requirement
to cooperate or provide the information, the individual cooperated fully and truthfully. Assuming
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Applicant had been told by his attorney that he would never have to report the offense, this would
not qualify for MC ¶ 17(b) as the advice was not given in the context of the security clearance
process. Furthermore, it would not excuse the deliberate fabrications to the DSS agent, which causes
greater concern for his judgment and trustworthiness than had he initially refused to discuss the
incident based on legal advice and then admitted his role in the theft after being apprised of his duty
to cooperate.
Applicant has apologized for his poor decisions, and submits in rehabilitation his completion
of ethics training and counseling from an attorney. Applicant’s training record (Ex. A) shows he
completed about 12.5 hours of ethics training since June 2002, most of it after he was interviewed
by the DSS agent. The only information about the counseling comes from Applicant, who indicated
the attorney taught him that even though his case was continued without a finding, he still had to
disclose it, and who taught him “the importance of full disclosure regarding anything to do with
national security.” (See Answer) To the extent that Applicant suggests he did not know that he had
to report the larceny charges until the counseling, he undercuts his claim of reform. He told the DSS
agent in March 2003 that he knew the charges were required to be disclosed. He testified that it was
not until after he received the SOR that he consulted with the attorney (Tr. 66). Under the
circumstances presented, I am unable to apply MC ¶ 17(d), the individual has acknowledged the
behavior and obtained counseling to change the behavior or taken other positive steps to alleviate
the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur.
 Applicant has not yet shown that he understands his obligation of full candor, as evidenced
by his exchange with Department Counsel concerning his claim that he had been exonerated of any
wrongdoing by a judicial officer at the college:
Q And the next paragraph you indicate that the judicial officer, meaning I guess the
judge in your case, or a magistrate or someone, did not, they realized you did not
steal anything and you were exonerated from any wrongdoing?
A That was from the judicial officer at the college.
Q At the college? So the school, why did they exonerate you from wrongdoing if you
had admitted stealing the chip?
A You would have to ask the judicial officer of the college.
Q Do you have any documents with you today to show that you were exonerated
from wrongdoing on the campus?
A No, I don’t.
Q Isn’t it true that you did 40 hours of community service as a result of this, I guess
a plea bargain?
A Yes.
Q Was that on campus or--
A Yes.
(Tr. 49). In an attempt to reconcile the inconsistency between his claim of complete exoneration and
his 40 hours of service at the college, Applicant went on, “The college exonerated me from any
wrongdoing but they realized that I had made a mistake and that was my, that was why I performed
the community service.” (Tr. 50) He later explained the mistake was “irresponsibly handling
computer equipment, which didn’t warrant any actual punishment from the college.” (Tr. 55) This
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raises doubts as to whether Applicant was completely candid during his judicial hearing at the
college.   
 Whole Person Analysis
The adjudicative process is an examination of a sufficient period of a person’s life to make
an affirmative determination that the person is eligible for a security clearance. (AG ¶ 2(a)) Each
security 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. Directive ¶ 6.3. Applicant’s larceny of the computer chip raises very serious
judgment, trustworthiness, and reliability concerns (¶ 2(a)(1), the nature, extent, and serious of the
conduct). While immaturity and peer influences were likely factors in his decision to steal the
computer chip (¶ 2(a)(4), the individual’s age and maturity at the time of the conduct), he decided
to take the computer chip because he wanted to upgrade his computer. Self-interest was also a
motivation in his decisions to lie on his SF 86 and during his DSS interview, as he feared that the
larceny would negatively affect his internship/employment with the defense contractor. Lingering
concerns that he may place his personal interest ahead of his fiduciary obligations preclude me from
finding that it is clearly consistent with the national interest to restore his access, even though he has
apparently handled classified information without incident while he held an interim secret-level
clearance.
FORMAL FINDINGS
Paragraph 1. Guideline J: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Paragraph 2. Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
DECISION
In light of all of the circumstances in this case, it is not clearly consistent with the national
interest to grant or continue a security clearance for Applicant. Clearance is denied.
Elizabeth M. Matchinski
Administrative Judge