DATE: September 28, 2007
In Re:
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SSN: ----------------
Applicant for Security Clearance
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ISCR Case No. 07-03289
DECISION OF ADMINISTRATIVE JUDGE
MARTIN H. MOGUL
APPEARANCES
FOR GOVERNMENT
Ray T. Blank, Jr., Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant’s credibility is extremely suspect, as he has not been truthful or candid with
information that he furnished to the United States Government in a Security Clearance Application
(SCAs), regarding his past criminal conduct. Mitigation has not been shown. Clearance is denied.
STATEMENT OF THE CASE
On May 10, 2007, the Defense Office of Hearings and Appeals (DOHA), pursuant to
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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 Applicant and
recommended referral to an Administrative Judge to determine whether a clearance should be
granted, denied or revoked.
In a signed and sworn statement, dated June 15, 2007, Applicant responded to the SOR
allegations. He requested that his case be decided on the written record in lieu of a hearing. 
On July 10, 2007, Department Counsel submitted the Department's written case. A complete
copy of the file of relevant material (FORM) was provided to Applicant, and he was given the
opportunity to file objections and submit material in refutation, extenuation, or mitigation. A
response was due on August 17, 2007. Applicant did not submit any additional evidence. The case
was assigned to this Administrative Judge on September 20, 2007.
In the FORM, Department Counsel offered five documentary exhibits (Items 1-5). No
documents were offered by Applicant.
FINDINGS OF FACT
In the SOR, the Government alleges that a security risk may exist under Adjudicative
Guideline E (Personal Conduct)  of the Directive. The SOR contains two allegations, 1.a. and 1.b.
under Guideline E. Applicant admitted SOR allegation 1.b., and he denied 1.a.. The admitted
allegation is incorporated herein as findings of fact. 
After a complete and thorough review of the evidence in the record, including Applicant's
Answer to the SOR, the admitted documents, and FORM, and upon due consideration of that
evidence, I make the additional findings of fact: 
Applicant is 33 years old. He is employed by a defense contractor, and he seeks a DoD
security clearance in connection with his employment in the defense sector.
(Guideline E - Personal Conduct) 
The Government alleges in this paragraph that Applicant is ineligible for clearance because
he furnished untruthful information to the Government about criminal conduct that was committed
by Applicant in 2006.  
1.a.  Applicant completed a signed, sworn Security Clearance Application (SCA) on June 23,
2006 (Item 1).
Question #23 of the SCA asks, 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 . . .  For this item, report
information regardless of whether the record in your case has been sealed or otherwise stricken from
the record.” Applicant  answered “No.” The Government has alleged that Applicant knowingly and
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willfully failed to disclose that information that will be discussed under 1.b., below.
1.b.   On Jan 3, 2006, Applicant was arrested and charged with Assault and Battery on a
Family Member. Applicant pled Nolo Contendere, but he was found guilty. He was sentenced to two
years probation. He was also ordered to pay a fine of $400, and to enroll in and complete a Domestic
Violence program.
Applicant avers that he has completed his probation under this conviction. Interrogatory
responses, submitted and signed by Applicant on April 23, 2007, (Item 5) include a letter dated
August 9, 2006, to the judge who presided over Applicant’s case. The letter states that Applicant
“has successfully completed probation.”
By failing to list his 2006 arrest and conviction, Applicant clearly did not furnish complete
and truthful information to the Government on the SCA that he completed on June 23, 2006. In his
response to the SOR (Item 2), Applicant avers that he did not knowingly falsify a material fact on
the SCA, but rather he states that it was a misunderstanding, because he believed that once he
completed a domestic violence program the charges would be expunged. 
I am not persuaded that Applicant’s failure to list his criminal conduct on the SCA was an
innocent misunderstanding for two reasons. First, Question #24 specifically asks him to list arrests,
charges and convictions, even if the case had been sealed or otherwise stricken from the record. So
the fact that Applicant  believed the case had been expunged should not have prevented him from
listing it on the SCA. Secondly, and even more significantly, in Item 5, response to question 2.a.,
Applicant admitted that he intentionally omitted listing the criminal offense” because I needed  a job
and I did felt (sic)embarrassed about it and did not want anyone to know because I was afraid I
would not be granted a clearance.”
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.
As set forth in Enclosure 2 of the Directive at pages 16-17, "In evaluating the relevance of
an individual's conduct, the [Administrative Judge] should consider the following factors [General
Factors]:
a. The nature, extent and seriousness of the conduct
b. The circumstances surrounding the conduct, to include knowledgeable participation
c. The frequency and recency of the conduct
d. The individual's age and maturity at the time of the conduct
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e. The voluntariness of participation
f. The presence or absence of rehabilitation and other pertinent behavior changes
g. The motivation for the conduct
h. The potential for pressure, coercion, exploitation or duress
i. 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
Applicant for clearance may be involved in acts of drug usage, alcohol abuse and criminal conduct,
and that demonstrates 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 a security clearance.
(Guideline E -Personal Conduct) 
With respect to Guideline E, the evidence establishes that Applicant knowingly furnished to
the Government untruthful, incomplete information, regarding his past criminal conduct, in a SCA,
executed on June 23, 2006. 
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The Government relies heavily on the honesty and integrity of individuals seeking access to
our nation’s secrets. When such an individual intentionally falsifies material facts or fails to furnish
relevant information to the Government, it is extremely difficult to conclude that he nevertheless
possesses the judgment, and honesty necessary for an individual given a clearance. In this case, I
conclude that Applicant knowingly and willingly failed to give complete, honest information to the
Government.
In reviewing the Disqualifying Conditions (DC) under Guideline E, I conclude that DC 16,
(a) applies because Applicant deliberately provided false and  misleading information to the
Government in a SCA.   No Mitigating Condition applies under this Guideline.  As a result of the
misinformation that Applicant  provided to the Government, his conduct exhibits questionable
judgement, unreliability, and a lack of candor. I resolve Guideline E against Applicant.
        
FORMAL FINDINGS
Paragraph 1. Guideline E: AGAINST  APPLICANT
Subparagraph 1.a.: Against Applicant
Subparagraph 1.b.: Against Applicant
DECISION
In light of all the circumstances presented by the record in this case, it is not clearly consistent
with the national interest to grant or continue a security clearance for Applicant.
Martin H. Mogul
Administrative Judge