KEYWORD: Criminal
DIGEST: The Applicant’s last incident involving criminal behavior occurred in 1995, more than
12 years ago.  The last four incidents of criminal behavior, in 1985, 1986, 1991 and 1995, all
involved the Applicant’s wife, who suffers from alcohol abuse and depression.  Often, he was on
the receiving end of the spousal abuse.  “There is clear evidence of successful rehabilitation” on
the part of both the Applicant and his spouse, as evidenced by seven letters of recommendation,
and his spouse’s admission.  Mitigation is shown.  Clearance is granted.
CASENO: 06-17481.h1
DATE: 09/07/2007
DATE: September 7, 2007
In Re:
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 06-17481
DECISION OF ADMINISTRATIVE JUDGE
RICHARD A. CEFOLA
APPEARANCES
FOR GOVERNMENT
Melvin A. Howry, Esquire, Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esquire, Applicant’s Counsel
SYNOPSIS
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The Applicant’s last incident involving criminal behavior occurred in 1995, more than 12
years ago.  The last four incidents of criminal behavior, in 1985, 1986, 1991 and 1995, all involved
the Applicant’s wife, who suffers from alcohol abuse and depression.  Often, he was on the receiving
end of the spousal abuse.  “There is clear evidence of successful rehabilitation” on the part of both
the Applicant and his spouse, as evidenced by seven letters of recommendation, and his spouse’s
admission.  Mitigation is shown.  Clearance is granted.
STATEMENT OF THE CASE
On August 17, 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 the Applicant, which detailed the 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.
Applicant filed an Answer to the SOR on August 28, 2006, however, the Government was
not “Ready to Proceed” with this case until April 9, 2007.
The case was originally assigned to another Administrative Judge, but was reassigned to the
undersigned on May 8, 2007.  A notice of hearing was issued that same day, and the case was heard
on June 20, 2007.  The Government submitted documentary evidence.  Testimony was taken from
the Applicant, who also submitted documentary evidence, and who called a witness to testify on his
behalf.  The transcript (TR) was received on July 18, 2007.  The issue raised here is whether the
Applicant's admitted past criminal activity militates against the granting of a security clearance.  [The
Applicant admits the underlying factual basis of all of the allegations, except for subparagraph 1.f.,
in that he categorically denies that any criminal incident occurred in 2005.]
FINDINGS OF FACT
The following Findings of Fact are based on Applicant's Answer to the SOR, the documents
and the live testimony.  The Applicant is 54 years of age, and is employed by a defense contractor,
which seeks a security clearance on behalf of the Applicant.  After a complete and thorough review
of the evidence in the record, and upon due consideration of the same, I make the following
additional Findings of Fact.
Guideline J - Criminal Conduct
1.a.  The Applicant was arrested in July of 1971, and subsequently charged with Possession
of Narcotic - Marijuana (TR at page 27 line 11 to page 28 line 18).  Although this charge was
ultimately dismissed, the Applicant admits the marijuana possession, when he was 19 years of age
(Id).
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The Applicant was married to his current spouse in 1983 (Government Exhibit (GX) 1 at
page 2).  She suffers from alcohol abuse and depression (TR at page 47 line 21 to page 48 line 22,
and Applicant’s Exhibit (AppX) R).
1.b.  The Applicant was arrested in September of 1985, and subsequently charged with a
Battery, in an incident involving his spouse (TR at page 28 line 23 to page 29 line 12, and GX 6 at
page 4).  This charge was ultimately dismissed (Id).
1.c.  The Applicant was arrested in November of 1986, and subsequently charged with Inflict
Corporal Injury to Spouse/Co-Habitant (Felony) (TR at page 29 line 13 to page 31 line 7, and GXs
2 and 5).  This charge was not prosecuted due to “Lack of Corpus,” as both spouses showed signs
of Corporal Injury (GX 5 at page 12).
1.d.  The Applicant was arrested in September of 1991, and again subsequently charged with
Inflict Corporal Injury to Spouse/Co-Habitant (Felony) (TR at page 31 lines 8~21, and GXs 2 and
4).  This charge was ultimately dismissed (Id).
1.e.  The Applicant was detained in June of 1995, and subsequently charged with Spousal
Abuse (TR at page 32 line 20 to page 33 line 7, at page 49 line 18 to page 51 line 13 and GX 3).
This charge was ultimately dismissed (Id).  After this last incident, the Applicant’s spouse sought
professional help to combat her depression (TR at page 49 line 18 to page 51 line 13, and AppX R).
1.f.  The Applicant categorically denies that any criminal incident occurred in 2005 (TR at
page 33 lines 8~19, at page 34 lines 13~22, and at page 45 line 22 to page 46 line 10).  The
Government has offered no evidence showing that any incident occurred.
POLICIES
Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and
conditions that could raise or mitigate a security concern.  Furthermore, as set forth in the Directive,
each 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 in enclosure 2, including as appropriate:
a. Nature, extent, and seriousness of the conduct, and surrounding
circumstances.
b. Frequency and recency of the conduct.
 c. Age and maturity of the applicant.
d. Motivation of the applicant, and the extent to which the conduct
was negligent, willful, voluntary, or undertaken with knowledge of
the consequence involved.
e. Absence or presence of rehabilitation.
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f. Probability that circumstances or conduct will continue or recur in
the future.
The Administrative Judge, however, 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.
The Government must make out a case under Guideline J (criminal conduct), which
establishes doubt about a person's judgment, reliability and trustworthiness.  While a rational
connection, or nexus, must be shown between an applicant's adverse conduct and his ability to
effectively safeguard classified information, with respect to sufficiency of proof of a rational
connection, objective or direct evidence is not required.
Then, the Applicant must remove that doubt with substantial evidence in refutation,
explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely
to be repeated, and that the Applicant presently qualifies for a security clearance.
The Government must be able to place a high degree of confidence in a security clearance
holder to abide by all security rules and regulations, at all times and in all places.  If an applicant has
demonstrated a lack of respect for the law, there exists the possibility that an applicant may
demonstrate the same attitude towards security rules and regulations.
CONCLUSIONS
The Applicant’s admitted past Criminal Conduct is evidenced by four arrests occurring in
1971, 1985, 1986 and 1991; and a detention occurring in 1995.  The first and second disqualifying
conditions under Criminal Conduct are therefore applicable, as there are “[a]llegations or admissions
of criminal conduct,” and “multiple lesser offenses” present.  However, the first and last mitigating
conditions are also applicable, as the “criminal behavior is not recent,” having occurred more than
12 years ago; and “[t]here is clear evidence of successful rehabilitation,” as evidenced by those who
know and/or work with the Applicant.
Furthermore, I am not limited to the mitigating conditions, delineated in the Directive, in
deciding if an Applicant has demonstrated extenuation or mitigation.  Here, as stated above, those
who know the Applicant speak most highly of his character, credibility and trustworthiness (AppXs
A~D, and O~Q).  The totality of the Appellant’s conduct and circumstances, as set forth at length
above, clearly warrants a favorable Decision under the “whole person concept.”  Mitigation is
shown; and as such, Guideline J is found for the Applicant.
Considering all the evidence, the Applicant has rebutted the Government's case regarding his
past Criminal Conduct.  The Applicant has thus met the mitigating condition of Guideline J, and of
Section E.2.2. of the Directive.  Accordingly, he has met his ultimate burden of persuasion under
Guideline J.
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FORMAL FINDINGS
Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: FOR THE APPLICANT
a. For the Applicant.
b. For the Applicant.
c. For the Applicant.
d. For the Applicant.
e. For the Applicant.
f. For the Applicant.
Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and
CONCLUSIONS, supra.
DECISION
In light of the circumstances presented by the record in this case, it is clearly consistent with
the interests of national security to grant or continue a security clearance for the Applicant.
Richard A. Cefola
Administrative Judge