DATE:  November 19, 2007
In Re:
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 06-26617
DECISION OF ADMINISTRATIVE JUDGE
MARY E. HENRY
APPEARANCES
FOR GOVERNMENT
James F. Duffy, Esq., Department Counsel
FOR APPLICANT
Michael B. Ware, Esq.
SYNOPSIS
Between 1999 and 2005, the police arrested Applicant six times. Three arrests related to
family disputes, which the court dismissed in including two not guilty findings. Applicant’s most
serious arrest occurred in 2002. He entered an Alfred plea to misdemeanor charges, but still
maintains he did nothing wrong. The police twice arrested him for driving under the influence (DUI).
The court found him not guilty of the most recent his DUI arrest. His earlier DUI is more than three
years old. He has mitigated the government’s security concerns regarding his criminal conduct.
Clearance is granted.
STATEMENT OF THE CASE
The SOR may be amended at the hearing by an Administrative Judge on his/her own motion, or upon motion1
by Department Counsel or the applicant, so as to render it in conformity with the evidence admitted, or for other good
cause. See Directive ¶ E3.1.17. More importantly, an unfavorable clearance decision cannot be made unless the applicant
has been provided with an SOR that is as detailed and comprehensive as the national security permits. See Directive ¶
E3.1.3. Here, an amended SOR would not have provided this Applicant reasonable notice that his alcohol consumption
or personal relationship with his former wife would be a real issue of paramount concern in determining the outcome
of his case. A SOR issued under Guideline G would have made it clear to the Applicant that the government had concerns
as to whether there was a nexus between Applicant’s prior alcohol related offenses and his level of alcohol consumption.
ikewise, a Guideline E allegation concerning his personal conduct towards his former wife would have made it clear that
2
On March 13, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement
of Reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified
Information Within Industry, dated February 20, 1960, as amended and modified, and Department
of Defense Directive 5220.6, Defense Industrial Security Clearance Review Program (Directive),
dated January 2, 1992, as amended and modified. The SOR 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. Specifically, the SOR sets
forth security concerns arising under Guideline J (Criminal Conduct) of the revised Adjudicative
Guidelines (AG) issued on December 29, 2005 and implemented by the Department of Defense,
effective September 1, 2006. DOHA recommended the case be referred to an administrative judge
to determine whether a clearance should be granted, continued, denied, or revoked. On May 10,
2007, Applicant submitted a notarized response to the allegations. He requested a hearing. 
This matter was assigned to another administrative judge on June 14, 2007, who scheduled
a hearing on August 2, 2007 in Newport News, Virginia. At the beginning of the hearing, Applicant
requested counsel. The administrative judge continued the hearing until September 24, 2007.
Counsel entered his appearance on behalf of Applicant on September 17, 2007 and requested the
hearing be continued. Upon a showing of good cause, the administrative judge issued an Order on
September 18, 2007, continuing the hearing until October 15, 2007. Because of an emergency with
the administrative judge, DOHA reassigned this case to me on October 10, 2007. I conducted the
hearing as scheduled in Williamsburg, Virginia. The government submitted six exhibits (GE), which
were marked and admitted into evidence as GE 1 through 6. Applicant submitted nine exhibits,
which were marked and admitted into evidence as applicant exhibits (AE), A through I. Applicant
testified. The hearing transcript (Tr.) was received on October 24, 2007.
PROCEDURAL ISSUES
During cross-examination, counsel for the government sought to develop new evidence in
regards to Applicant’s relationship with his ex-wife on the issue of spousal abuse and his drinking
habits. Applicant’s counsel objected. The government did not allege that Applicant’s past or present
alcohol consumption was a current security concern under Guideline G (Alcohol Consumption) nor
that spousal abuse was a security concern under Guideline E. Although the government sought to
develop new evidence to amend the Statement of Reasons (SOR), it failed to make a proffer of the
specific evidence that it planned to illecit. Accordingly, the government did not articulate the new
allegations that would be outlined in the amended SOR. Essentially, the government wanted to
embark on a fishing expedition. To allow the development of new allegations would have violated
Applicant’s due process rights of notice and opportunity to respond to these new allegations.1
the government also had concerns about his conduct towards her. Similarly, if the government intended to present
evidence of additional criminal conduct, then it should have disclosed those security concerns in the SOR.
Applicant’s response to the SOR, dated May 10, 2007, at 1.2
Id.3
GE 1 (Applicant’s application for a security clearance (SF-86)) at 2, 6-7, 9, 12-13; AE I (Documents from4
Little League); Tr. at 22-25.
GE 1, supra note 4, at 9, 12-13; Tr. at 42-43.5
GE 2 (United States Department of Justice, Federal Bureau of Investigation, Criminal Justice Information6
Services Division) at 2. I note that the criminal records document does not list an arrest for February 1999; AE A (Court
docket sheet for February 1999 arrest); Tr. at 26-27, 45-51.
3
FINDINGS OF FACT
Applicant admitted the allegation in subparagraph 1.d. under Guideline J, of the SOR.  This2
admission is incorporated as a finding of fact. He denied the remaining allegations.  After a complete3
review of the evidence in the record and upon due consideration, I make the following findings of
fact.
Applicant is 47 years old. He started work for his current employer, a Department of Defense
contractor, in 1978. For the last 20 years, he worked as a nuclear engineer. Since 1990, he has held
a low level security clearance, as his duties require him to review security documents on a daily
basis. In his 28 years of employment, he has never been disciplined for any reason at work, and there
are no allegations of violation of security procedures. For the last 12 years, he has coached little
league and high school fast pitch baseball. He has never been investigated or charged for any
inappropriate actions as a coach.4
Applicant married in 1983 and divorced in April 2004. His three children from this marriage
are 23, 21 and 19 years of age. He remarried in January 2006.5
In 1999, Applicant and his first wife got into an argument. His wife stood about six feet from
him. She threw a small pan or pail at him, which he deflected with his hands. The pan or pail then
hit his wife. His wife did not sustain any injuries in this incident, which did not involve alcohol. He
left the house. She filed a complaint with the magistrate, who asked him to remain away from the
house for two to three weeks, which he did. Applicant and his wife appeared for the hearing in this
matter in Juvenile and Family Court. When the court did not call their case, they learned that they
had appeared on the wrong day. They immediately walked to the police station and advised the
police about the mix up on their hearing dates. Although the Federal Bureau of Investigation criminal
records for Applicant indicates a contempt of court arrest in April 1999 for his failure to appear,
Applicant never saw a contempt of court Order, and did not become aware of such an Order until
DOHA investigator told him about it. The record contains no other information on the contempt of
court issue. At his trial in May 1999, Applicant voluntarily agreed to attend the “PRIDE” program,
a relationship building program. He completed the 26 week program, which he described as an
enlightening and helpful course on how to interact with people. The docket sheet indicates that
thereafter, the court dismissed the charges after a finding of not guilty.6
GE 3 (Court information sheet); GE 4 (Court information sheet); Tr. at 35-39, 59-64.7
AE B (Court docket sheet); AE C (Court docket sheet); Tr. at 26-27, 66-68, 81-82.8
GE 2, supra note 6, at 2; GE 5 (Court case information sheet) at 1; AE F (Final report from alcohol safety9
program, dated January 24, 2005); Tr. at 27-28, 77.
4
In September 2002, Applicant drove to a local karaoke bar to listen to friends sing. After one
and one-half hours, he left. A woman asked for a ride home. He drove her to a furniture store parking
lot, next to her home. He parked his car, a mini van. While sitting in the car, he observed in his rear
view mirror an individual dressed in nondescript clothing approaching his car on the left with a big
chain and a gun. He thought he was being set up for a robbery and feared for his life. He started his
car and drove away. He drove about 100 yards and turned left at a light. He saw police car lights and
car. He stopped and got out of his car and waited for the police. The police who arrived at this time
were in uniform. Before talking with him, the police threw him on the ground and began beating
him, resulting in injuries and bruising. The police then arrested him and charged him with eluding
a police officer and assault and battery on a police officer, both felony charges. On advice of counsel,
Applicant entered an Alford plea (he voluntarily, knowingly and understandingly consented to the
imposition of a prison sentence, but did not admit his actions constituted a crime) to simple assault
(this offense lacked the element of assault on a police officer) and eluding a police officer,
misdemeanor offenses. The court sentenced him to 12 months in jail, which it suspended, and fined
him $1,078. He agreed to the Alford plea to avoid the risk of trying the case, which had a more
serious potential for an adverse result from a contested trial. At the hearing, he emphatically denied
striking a police officer or running from the police. He drove away to protect himself from harm.7
Just prior to finalizing their divorce, in January 2004, Applicant’s wife filed a criminal
complaint, alleging threatening and harassing phone calls. The police then arrested and charged him
with two misdemeanor counts of threatening and annoying telephone calls. Applicant called his wife
several times to discuss discipline of their children after his wife had allowed their teenage children
to have socials in the home without adult supervision. They disagreed about this issue. He recalls
speaking loudly and sharply about this issue. The court dismissed these charges in June 2004.8
In April 2004, Applicant drank at a celebration at work. He then left work and drove while
under the influence of alcohol, which he admits was a mistake. The police arrested him and charged
him with DUI, a misdemeanor offense. The court found him guilty and sentenced him to six months
in jail, which was suspended, fined him $250, directed he attend a state alcohol and safety program,
and pay $174 in costs. The court also restricted his driving privileges to driving to and from and to
other work assignments as needed for one-year. Applicant complied with all the terms of his
sentence.9
In 2004, Applicant purchased a car for his then 18-year-old daughter. She signed a contract,
which outlined terms and conditions for her use of this car, including using the car to go to school.
She also verbally agreed that if she did not comply with the terms of the contract, she could not drive
the car. By November 2004, his daughter stopped going to school as agreed. To prevent her from
driving the car, Applicant removed the spark plugs from the car. His daughter then filed a criminal
AE E (Court docket sheet on case) at 1-2; AE F (Contract with daughter); Tr. at 29-31.10
AE H (Court trial order, dated October 6, 2005) at 1; Tr. at 40-42, 70-71,78-79.11
Directive, revised Adjudicative Guidelines (AG) ¶ 2(a)(1)-(9).12
ISCR Case No. 96-0277 at 2 (App. Bd., July 11, 1997).13
ISCR Case No. 97-0016 at 3 (App. Bd., Dec. 31, 1997); Directive, Enclosure 3, ¶ E3.1.14.14
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 15
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property damage charge against him. The police arrested him in November 2004. He pled not guilty
to the charge, and the court found him not guilty and dismissed this case on March 11, 2005.10
In January 2005, Applicant and his fiancee drove to a restaurant and bar in his van, where
they met a friend of his. While at the restaurant, he drank alcohol. When they returned to his van,
they could not drive the van because transmission stopped operating. His friend offered Applicant
his truck to drive. Applicant’s fiancee rode to his friend’s house to drop off the friend and return to
the restaurant parking lot with the truck, as Applicant would not drive since he had been drinking.
Applicant waited in his van. Because it was cold, he turned on the engine and fell asleep. While he
was sleeping in his van, the police came. The police tapped on his window, asked him to get out, put
him in the police cruiser, and took him to the police station. The police charged him with DUI, first
offense. In court, Applicant pled not guilty to the charge and the court found him not guilty of
driving under the influence.11
POLICIES
The revised Adjudicative Guidelines set forth disqualifying conditions (DC) and mitigating
conditions (MC) applicable to each specific guideline. An administrative judge need not view the
revised adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the
complexities of human behavior, these guidelines, are intended to assist the administrative judge in
reaching fair and impartial common sense decisions. Although the presence or absence of a particular
condition or factor for or against clearance is not outcome determinative, the revised AG should be
followed whenever a case can be measured against this policy guidance. In addition, each security
clearance decision must be based on the relevant and material facts and circumstances, the whole-
person concept, and the factors listed in the Directive.12
The sole purpose of a security clearance determination is to decide if it is clearly consistent
with the national interest to grant or continue a security clearance for an applicant.  The government13
has the burden of proving controverted facts.  The burden of proof is something less than a14
preponderance of the evidence.  Once the government has met its burden, the burden shifts to the15
applicant to present evidence of refutation, extenuation, or mitigation to overcome the case against
ISCR Case No. 94-1075 at 3-4 (App. Bd., Aug. 10, 1995); Directive, Enclosure 3, ¶ E3.1.15.16
ISCR Case No. 93-1390 at 7-8 (App. Bd. Decision and Reversal Order, Jan. 27, 1995); Directive, Enclosure17
3, ¶ E3.1.15.
Egan, 484 U.S. at 531.18
Id.19
Id.; Directive, revised AG ¶ 2(b).20
Executive Order No. 10865 § 7.21
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him.  Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable16
clearance decision.17
No one has a right to a security clearance,  and “the clearly consistent standard indicates that18
security clearance determinations should err, if they must, on the side of denials.”  Any reasonable19
doubt about whether an applicant should be allowed access to sensitive information must be resolved
in favor of protecting such sensitive information.  Section 7 of Executive Order 10865 specifically20
provides industrial security clearance decisions shall be “in terms of the national interest and shall
in no sense be a determination as to the loyalty of the applicant concerned.” The decision to deny an
individual a security clearance is not necessarily a determination as to the allegiance, loyalty, and
patriotism of an applicant.  It is merely an indication that the applicant has not met the strict21
guidelines the President and the Secretary of Defense have established for issuing a clearance.
CONCLUSIONS
Upon consideration of all the facts in evidence, and after application of all appropriate
adjudicative factors, I conclude the following with respect to the allegations set forth in the SOR:
Criminal Conduct
Under Guideline J, criminal activity creates a doubt about a person’s judgment, reliability,
and trustworthiness. By its nature, criminal activity calls into question a person’s ability or
willingness to comply with laws, rules and regulations. (AG ¶ 30) Between 1999 and 2005, the
police arrested Applicant on six occasions and charged him with felony or misdemeanor criminal
offenses. Thus, DC ¶ 31 (a) 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,
formally prosecuted or convicted apply.
AG ¶ 32 describes conditions that could mitigate security concerns including:
(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, thrustworthiness, or good judgment;
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(b) the person was pressured or coerced into committing the act and those pressures
are no longer present in the person’s life;
(c) evidence that the person did not commit the offense; and
(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.
In 1999, Applicant and his wife got into an argument. She threw a pan or pail at him which
he deflected, causing it to hit his wife. Although she sustained no injury, she filed a domestic
violence charge against Applicant, which the family court, not the criminal court, adjudicated. The
court resolved this case, by asking Applicant to participate in PRIDE, a relationship building course.
Once applicant completed this informative and helpful course, the family court dismissed the charges
against him. No further incidences of this type have occurred between Applicant and his now former
wife. Applicant has mitigated the government’s concerns regarding this arrest under MC ¶ 32 (a)
because this incident took place more than eight years ago and is unlikely to reoccur as he and his
wife have divorced, which has minimized the chances for fighting. Given Applicant’s denial of any
knowledge of a criminal contempt Order and the lack of documentary evidence showing the issuance
of an Order by the court, Applicant has mitigated this allegation under MC ¶ 32 (c).
Applicant has also mitigated his criminal conduct and guilty finding for the 2002 incident
under MC ¶ 32 (a). I decline to apply collateral estoppel in regard to his misdemeanor conviction.
The Appeal Board articulated a four-part test for applying collateral estoppel in such cases:
First, the party against whom the earlier decision is asserted must have been afforded
a “full and fair opportunity” to litigate that issue in the earlier case. Second, the issues
presented for collateral estoppel must be the same as those resolved against the
opposing party in the first trial. Collateral estoppel extends only to questions
“distinctly put in issue and directly determined” in the criminal prosecution. Third,
the application of collateral estoppel in the second hearing must not result in
unfairness. Federal courts decline to apply collateral estoppel where the
circumstances indicate a lack of incentive to litigate the original matter. “Preclusion
is sometimes unfair if the party to be bound lacked an incentive to litigate the first
trial, especially in comparison to the stakes of the second trial.” The arguments for
not giving preclusive effect to misdemeanor convictions are that an individual may
not have the incentive to fully litigate a misdemeanor offense because there is so
much less at stake, or that plea bargains create an actual disincentive to litigate these
particular issues. ISCR Case No. 04-05712 at 8 (App. Bd. Oct. 31, 2006). (Citations
and parentheticals omitted)
In this case, following a offer to plea to a reduced charge and no jail time by use of an Alford
plea, Applicant lacked incentive to fully litigate the issues of his innocence of the felony charges
against him. Applicant credibly testified that he drove away when an unidentified individual
approached his parked car with a gun drawn and he feared for his life. Unbeknownst to him, the
individual was a plain clothes police officer. The state agreed to allow him to enter an Alford plea
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to misdemeanor charges, which raises questions about the strength of the state’s felony case. Because
the state allowed him to plea to simple assault without any reference to assaulting a police office,
his plea provides credibility to his version of events. To avoid the risks connected with a trial,
Applicant followed his counsel’s recommendation and entered an Alford plea. By so doing, he ended
the stress and trauma connected with a trial and continued to maintain his innocence. It would be
unfair to apply collateral estoppel to Applicant based on these facts.
The facts surrounding this arrest are unique and not likely to occur again. Applicant’s
decision to flee the parking lot under the circumstances described does not cause doubt on his
reliability, trustworthiness, or good judgment. He made a split-second decision to protect his life in
a situation he perceived as very dangerous. His actions are not criminal conduct or even misconduct.
As such, the 2002 incident does not cause a security concern.
The police arrested Applicant twice for DUI. The court found him guilty of the first DUI and
not guilty of the second DUI. In light of the not guilty finding in 2005, as well as his credible
statement that he was not driving and only using the vehicle’s heater, establish he has mitigated the
government’s concern about this DUI under 32 ¶ (c). After his first DUI in 2004, Applicant chose
not to drink and drive, a decision he made because of the information he learned while in the alcohol
safety program. He has had no other convictions for DUI and only one subsequent arrest. At the time
of his second DUI arrest, he was waiting for his fiancee to come and drive him home because he had
been drinking. There is little likelihood that Applicant will be arrested for DUI in the future. It has
been over three years since his DUI conviction after drinking. He has mitigated the government’s
concerns under MC ¶¶ 32 (a) and 32 (d).
The police arrested him twice as a result of disputes with family members over discipline.
Applicant became concerned when his wife allowed their teenage children to have social gatherings
in their home with their friends and without adult supervision. He and his former wife argued about
her decision. She did not like his position and apparent criticism of her. As a get even tactic, she filed
a complaint alleging harassing and annoying telephone calls by Applicant. Applicant’s description
of his relationship with his former wife is credible. The court’s dismissal of these charges is one
indication that he did not commit the alleged criminal conduct. As to the criminal property damage
charge, the court found him not guilty of any crime in the disciplining of his daughter. He did not
use physical force in either of these incidents. Rather, both incidents resulted from displeasure or
disagreement with his approach to issues. Applicant has mitigated the government’s concerns
regarding these arrests under MC ¶ 32 (c). I find that Applicant has mitigated the government’s
concerns about his criminal conduct under Guideline J.
Whole Person Analysis
Protection of our national security is of paramount concern. Security clearance decisions are
not intended to assign guilt or to impose further punishment for past transgressions. Rather, the
objective of the adjudicative process is the fair-minded, common sense assessment of a person’s
trustworthiness and fitness for access to classified information. Thus, in reaching this decision, I
must consider the whole person concept in evaluating Appellant’s risk and vulnerability in protecting
our national interests. Under the whole-person concept, I must consider the following factors listed
in the Directive: (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
9
the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which
participation is voluntary; (6) the presence or absence of rehabilitation and other permanent
behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion,
exploitation, or duress; and (9) the likelihood of continuation or recurrence. AG ¶ 2 (a)(1)-(9).
Applicant has worked for his present employer for 28 years. He has never been disciplined
at work nor has he ever violated security procedures. The SOR lists six arrests for Applicant over
a six-year period of time, thus, raising a question of whether Applicant has a pattern of criminal
conduct. His first arrest was resolved in family court, not criminal court, because family court has
developed expertise in helping resolve family issues before the issues develop into serious criminal
problems. In Applicant’s case, the court offered him an opportunity to participate in PRIDE, a
relationship building course, and he did. As a result of this program, Applicant developed new skills
for managing family situations. The arrests in January and November 2004 occurred not because
Applicant committed a crime, but because he and family members disagreed over discipline and
adult supervision of teenagers.
Applicant’s 2002 arrest occurred under a very unique set of circumstances. He drove away
from an armed individual approaching him as he feared for his life. He later found out this individual
was a police officer. Although he stopped and waited for the police a short distance away from where
he had been parked, the police manhandled him before talking with him, then arrested and charged
him with two felonies, eluding the police and assaulting a police officer. The police interpreted his
actions as a sign of criminal conduct and reacted accordingly. He vehemently denies any
wrongdoing, including assaulting a police officer, despite his decision to enter an Alford plea, not
to felony charges but to misdemeanor charges of eluding a police officer and simple assault. He
chose the Alford plea after much discussion with his counsel, instead of proceeding forward with
an expensive, emotional, and stressful trial, with an uncertain outcome.
Applicant has acknowledged that he drank and drove in 2004, and he should not have done
so. He credibly testified that after attending the alcohol safety program, he no longer drinks and
drives. His testimony is supported by the fact that in 2005, after drinking, he decided that his fiancee
should go with his friend to obtain transportation and he would wait at his disabled van for her to
return with the transportation. His DUI arrest in 2004 is his only DUI arrest, as the court found him
not guilty of the second DUI charge.
Although he has been arrested six times, Applicant does not have a pattern of criminal
conduct because three of his arrests arose from family disputes, which were resolved in family court
or dismissed by the courts without any finding of criminal conduct. His most recent arrest resulted
in a not guilty finding by the court. While it may be argued that his two remaining convictions are
enough to show a pattern, his 2002 case involved a rather unique set of facts, which are not likely
to occur again. His only DUI conviction occurred more than three years ago. He learned about the
dangers of drinking and driving from his alcohol education program and has applied the values from
this program to his everyday life. He no longer drinks and drives.
Applicant has demonstrated that he is not vulnerable to coercion, exploitation, pressure or
duress because these arrests. He has learned from his mistakes and will not repeat this conduct in the
future. He is a hard working employee with a good record. He is happily married to his second wife.
Having weighed all the evidence of record and used a common sense evaluation of the entire facts
10
in this case, I find that he has mitigated the government’s security concerns. Accordingly, I find in
favor of Applicant under Guideline J.
FORMAL FINDINGS
Formal findings For or Against Applicant on the allegations set forth in the SOR, as required
by Section E3.1.25 of Enclosure 3 of the Directive, are:
SOR ¶ 1-Guideline J : FOR APPLICANT
Subparagraphs a-f: For Applicant
DECISION
In light of all of the circumstances presented by the record in this case, it is clearly consistent
with the national interest to grant a security clearance for Applicant. Clearance is granted.
Mary E. Henry
Administrative Judge