DATE: November 30, 2007
In Re:
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SSN: -----------------
Applicant for Security Clearance
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ISCR Case No. 06-26768
DECISION OF ADMINISTRATIVE JUDGE
BARRY M. SAX
APPEARANCES
FOR GOVERNMENT
Jennifer I. Goldstein, Esquire, Department Counsel
FOR APPLICANT
Edward G. Lear, Esquire
Century Law Group
SYNOPSIS
This 35-year-old employee of a defense contractor has a sparse history of three instances of
personal and lesser criminal activity while in college and in 1998 and 2004.  His current maturity is
indicated by his excellent work history, letters of recommendation and three years without any
recurrence.  Mitigation has been established.  Clearance is granted. 
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STATEMENT OF THE CASE 
On June 14, 2007, 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, as amended, issued a Statement of Reasons (SOR) to the Applicant. The SOR detailed reasons
why DOHA could not make the preliminary affirmative finding required under the Directive that it
is clearly consistent with the national interest to grant or continue a security clearance for the
Applicant. The SOR recommended referral to an Administrative Judge to conduct proceedings and
determine whether a clearance should be granted, denied or revoked. 
On July 19, 2007, Applicant responded to the allegations set forth in the SOR, and elected
to have a decision made after a hearing before a DOHA Administrative Judge. The matter was
assigned to me on September 12, 2007. A Notice of Hearing was issued on October 9, 2007, setting
the hearing for November 8, 2007. At the hearing, the Government introduced three (3) exhibits
(Government’s Exhibits (GX) 1-3). Applicant testified and introduced exhibits (Applicant’s Exhibits
(AX). The transcript was received at DOHA on November 26, 2007. 
FINDINGS OF FACT 
Applicant is a 35-year-old industrial engineer. The June 14, 2007 SOR contains two (2)
allegations under Guideline E (Personal Conduct), and two (2) allegations under Guideline J
(Criminal Conduct).  Applicant’s responses are a combination of admissions and denials, along with
comments and explanations.  Only the specific admissions are accepted and incorporated herein as
Findings of Fact.  After  considering the totality of the evidence, I make the following FINDINGS
OF FACT as to the status of each SOR allegation. 
Guideline E (Personal Conduct) 
1.a. While in college in 1996-2000 (ages 24-28), Applicant’s roommate vacated their joint
residence and left behind a TV satellite dish, whish contained a "card" that allowed access to the
satellite network.  He purchased another dish and card on E-bay. In about July 2001, he attempted
to sell the equipment on his company’s computer network, which apparently allowed employees to
advertise personal items for sale.  Applicant knew that at least the "cards" could not legally be sold,
since they allowed access to the satellite network without having to pay the satellite company.
1.b. the attempted sale was detected by company security.  Applicant admitted what he was
doing and was terminated by the company in July 2001 because of the improper use of the computer
network to sell the "illegal" cards. 
Guideline J (Criminal Activity) 
2.a. In about June 1998, Applicant was working as a checker in a food market. A friend came
into his line and Applicant intentionally did not charge the friend for 10-15 items. This conduct was
observed by store security and resulted in Applicant’s arrest. He was charged with Misdemeanor/Petty
Theft and pleaded nolo contendere to the charge. He was fined, placed on probation for three years
and sentenced to serve one day in jail. 
2.b. In or about August 2004, Applicant was arrested for driving a boat on a local lake, while
under the influence of alcohol. He pleaded No Contest and was fined, placed on probation for two
years, and ordered to attend an alcohol awareness class. 
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POLICIES 
The eligibility criteria established by Executive Order 10865 and DoD Directive 5220.6
require an analysis under the whole person concept, which requires DOHA Administrative Judge s
to identify personal characteristics and conduct that are reasonably related to the ultimate question
of whether it is "clearly consistent with the national interest" for an individual to hold a security
clearance. An applicant’s admission of the information in specific allegations relieves the
Government of having to prove those allegations. If specific allegations and/or information are denied
or otherwise controverted by the applicant, the Government has the initial burden of proving those
controverted facts alleged in the Statement of Reasons. 
In evaluating the relevance of an individual's conduct, under the Directive’s "whole person"
concept, the adjudicator should consider the following nine generic 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 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 (Directive, Enclosure 2, Section 2, on pages 18, 19). I have considered all nine factors,
individually and collectively, in reaching my overall conclusion. 
If the Government meets its burden (either by the Applicant’s admissions or by other
evidence) and proves conduct that creates security concerns under the Directive, the burden of 
persuasion then shifts to the Applicant to present evidence in refutation, extenuation or mitigation
sufficient to demonstrate that, despite the existence of conduct that falls within specific criteria in the
Directive, it is nevertheless consistent with the interests of national security to grant or continue a
security clearance for the Applicant. 
A person seeking access to classified information enters into a fiduciary relationship with the
Government based upon trust and confidence. As required by DoD Directive 5220.6, as amended,
"any doubt as to whether access to classified information is clearly consistent with the interests of
national security will be resolved in favor of the nation’s security."
CONCLUSIONS 
Guideline E (Personal Conduct) 
1.a. and 1.b. Applicant used his company computer to attempt to sell two "satellite
programming cards" from satellite equipment not legitimately purchased by him. He was terminated
by his employer because of this conduct. 
Disqualifying Conditions - applicable are 16.( c) credible adverse information in several
adjudicative areas that is not sufficient for an adverse determination under any other single guideline,
but 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 the person may not properly safeguard protected information; 
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,
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untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations,
or other characteristics indicating the person may not properly safeguard protected information. This
includes but is not limited to consideration of the following: 
(2) . . . inappropriate behavior in the workplace; 
(3) a pattern of dishonesty or rule violation; 
(4) evidence of significant misuse of . . . other employer’s time or resources. 
Mitigating Conditions - 17.( c) 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. 
Guideline J (Criminal Conduct) - The Concern: 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. 
2.a..  As to the 1998 arrest, the SOR allegation that Applicant was charged with Grand Theft
is derived from the FBI Identification record (GX 3).  There are two entries for that year,
"1998/05/19," which cited “Petty Theft" and “1998/06/03,” which cites "Grand Theft."  Both entries
are captioned "Arrested Or Received."  As I read the two entries and those for the 2004 arrest as well,
it is clear that the first entry was for the day the arrest was reported and the second entry was the date
the court action occurred.  The second entry does say "Grand Theft."  FBI Identification Records are
generally, but not always, correct.  They are only as accurate as the information transmitted to the FBI
and the correct transfer of that information onto the Identification Record. 
Applicant denies he was charged with Grand Theft.  His contention is supported by an official
court document.  Attached to Applicant’s response to the SOR is the Complaint, the official charging
document.  Count 1 alleges that Applicant committed Petty Theft, a Misdemeanor, on March 15,
1998.  The Complaint was signed and date stamped on April 16, 1998.  The “Grand Theft" entry in
the FBI History, dated "1998/06/03" is unsupported by any original evidence and is incorrect.  I
conclude that the arrest and conviction was for a misdemeanor. 
2.b. The August 2004 offense occurred as alleged. Applicant was in a friend’s speed boat and
had consumed about eight beers during the day. The friend asked Applicant to drive the boat while
he, the friend, used the water ski. The boat’s erratic movements were observed by a Deputy Sheriff
and Applicant was stopped.
 
Disqualifying Conditions include 31(a) a single serious crime or multiple lesser offenses; and
31.( c) an allegation or admission of criminal conduct, regardless of whether the person was formally
charged, formally prosecuted, or convicted, are both applicable.  Applicable Mitigating Conditions
include 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. 
On three occasions in Applicant’s life of 35 years, he used poor judgment in making decisions
involving his personal conduct: the 1998 Petty Theft; the 2001 misuse of a company computer, which
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led to his termination, and the 2004 DUI Watercraft arrest and conviction.  Without meaning to
minimize Applicant’s personal and criminal misconduct, the three incidents involve different types
of misconduct, most of which can all be classified as relatively minor, unconnected, and the result
of decisions made without reasonable consideration.  Overall, Applicants personal history suggests
an extended period of immaturity that substantially ended some years ago, as is demonstrated by his
excellent work record and letters of commendation.
Under the two specific Guidelines and the Directive’s whole person concept, Applicant has
been shown to have a history of one act of personal misconduct during 1996-2000; and two "lesser"
criminal offenses, in 1998 and 2004.  Since 1998, the only incident is one of operating a boat on a
lake while under the influence of alcohol, conduct that Applicant credible regrets.  There is no other
evidence of alcohol abuse or alcohol-related misconduct.  Consequently, the 2004 arrest appears to
be an aberration in a life otherwise free of alcohol-related problems.  Overall, I conclude that
Applicant has adequately mitigated the Government’s concerns
In summary, Applicant has demonstrated that he currently possesses the good judgment,
reliability, and trustworthiness required of someone seeking access to the nation’s secrets. 
FORMAL FINDINGS 
Formal Findings as required by Section 3, Paragraph 7 of Enclosure 1 of the Directive are hereby
rendered as follows:
Guideline E (Personal Conduct) For the Applicant
Subparagraph 1.a. For the Applicant
Subparagraph 1.b. For the Applicant
Guideline J (Criminal Conduct) For the Applicant
Subparagraph 2.a. For the Applicant
Subparagraph 2.b. For the Applicant
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 Applicant. 
BARRY M. SAX 
ADMINISTRATIVE JUDGE