1
                                                             
                           
                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
                                                          )               ISCR Case No. 07-01498
SSN:                                                  )
)
Applicant for Security Clearance )
Appearances
For Government: Eric H. Borgstrom, Esquire, Department Counsel
For Applicant: Pro Se
                                                                            
______________
Decision
______________
MARSHALL, Jr., Arthur E., Administrative Judge:
Applicant submitted a Security Clearance Application, Standard Form SF-86,
dated February 12, 2002. On July 10, 2007, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns
under Guideline J (Criminal Conduct) regarding Applicant. The action was taken under
Executive Order 10865, Safeguarding Classified Information within Industry (February
20, 1960), as amended, and Department of Defense Directive 5220.6, Defense
Industrial Personnel Security Clearance Review Program (January 2, 1992), as
amended (Directive), and the revised adjudicative guidelines (AG) promulgated by the
President on December 29, 2005, and effective within the Department of Defense for
SORs issued after September 1, 2006. 
Applicant acknowledged receipt of the SOR on July 23, 2007. He answered the
SOR allegations in writing with brief narrative comments through a letter dated August
5, 2007. In a supplement to that answer, notarized on August 6, 2007, Applicant
explicitly admitted the first allegation and denied the second allegation raised in the
SOR. No written indication was given as to whether Applicant wished to have a hearing
 See File of Relevant Material (FORM) Item 2 (Applicant’s Response to the SOR, notarized on August 6,1
2007, and supplementary letter of explanation, dated August 5, 2007).
 See FORM Item 2, supra footnote 1; DOHA legal assistant’s cover letter of October 25, 2007, and DOHA2
management’s letter of case assignment, dated January 31, 2008. 
 DOHA’s letter of October 25, 2007, advised Applicant of his opportunity to review the FORM and “submit3
any material” for the administrative judge’s consideration or “make any objections” as to the information set
forth in the FORM.
2
on the record or whether he desired to have the matter resolved through administrative
determination.  1
In response to Applicant’s answer, Department Counsel prepared a File of
Relevant Material (FORM), which included a Motion to Amend the SOR to include three
allegations arising under a second guideline, Guideline E (Personal Conduct). That
FORM, dated October 24, 2007, advised Applicant of his opportunity to respond to the
FORM within 30 days after receipt of the FORM. Further information as to how
Applicant could respond to the FORM, its argument and contents, was included in a
cover letter to the FORM, dated October 25, 3007, from a DOHA legal assistant. It also
stated in its opening paragraph: “You requested that a determination be made in your
case without a hearing.” 
Applicant received a copy of the FORM on October 31, 2007. Applicant did not
submit any information or materials in response to the FORM within 30 days of its
receipt. Applicant similarly declined to address the motion to amend the SOR.
DOHA received the case for assignment to an Administrative Judge for
administrative determination on January 31, 2008. I was assigned the case that same
day. I reviewed the entire case file upon assignment and noted inconsistencies as to
whether Applicant actually waived his opportunity to have the matter decided
administratively. Specifically, I noted the lack of written indication that Applicant waived
his right to a hearing in his response to the SOR conflicted with DOHA representations
that Applicant had requested a determination without a hearing.  On February 4, 2008,2
Department Counsel was contacted to ascertain the basis for the conclusion that
Applicant had waived the opportunity for a hearing in favor of an administrative
determination. Department Counsel acted expeditiously and, on that same date, a
DOHA legal assistant delivered a copy of an August 8, 2007, facsimile transmission
cover sheet which had accompanied Applicant’s August 6, 2007, answer to the SOR.
That cover sheets states, in part: “I do not wish to have a hearing. . . .” I accept that
sheet into the record as part of the FORM and the case file is now closed.
Finally, I have reviewed Department Counsel’s motion to amend the SOR with
three allegations under a new guideline, Guideline E (Personal Conduct). That motion
was part of Department Counsel’s FORM. I note that Applicant was given adequate
notice of the government’s concerns. I also note that he had 30 days to respond to both
the FORM and the motion, and had the opportunity to proffer evidence in response to
the issues raised in the motion, but declined to do so.  I further note that the facts cited3
 Regarding the 2004 incident, Applicant’s wife and her daughter told police officers that Applicant had4
exposed himself in a lewd manner. There is no indication, however, if these statements were ever repeated,
established, or known to Applicant in such a way that he had a duty to disclose them. 
 U.S. Naval Criminal Investigative Report, dated April 26, 1999.5
 Response to the SOR, dated August 5, 2007.6
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in the amended SOR concern facts noted in the allegations arising under Guideline J.
Inasmuch as Applicant has declined to object to Department Counsel’s motion, I grant
that motion and include the new guideline and allegations in my consideration of the
SOR subject to the deletion of one sub-allegation, which the record does not
adequately substantiate.  Based upon a review of the case file, pleadings, exhibits, and4
testimony, eligibility for access to sensitive information is denied.
Findings of Fact
Applicant is a 47-year-old employee of a defense contractor. He has been a
technical writer/engineer with the same company since January 2002. In his Answer to
the SOR, Applicant admitted the factual allegation in ¶ 1.a regarding a 1999 altercation,
but denied the allegation set forth in ¶ 1.b of the SOR regarding an arrest and guilty
plea to a charge of Assault & Battery-Family Member. The scant narration he provided
indicates, however, that while Applicant denies the substance of the charge, he
concedes that he was arrested and pled guilty to the charge raised.  Other than brief
narratives regarding the two incidents, Applicant has declined to add additional
information or submit exhibits supplementing the limited facts of record.
Applicant served in the U.S. Navy from 1982 through 2002. In the Navy, he
served as a Chief Petty Officer [E-7]. He served on five nuclear powered submarines
during his service and has maintained a security clearance for over 30 years. 
In October 1991, he remarried a former spouse, to whom he had been married
from 1982 through 1987. In 1992, he attended college for a semester. By early 1999,
his marriage was facing difficulties and he was estranged from his wife. On April 16,
1999, he was informed by a neighbor that his wife was seeing another man.  He5
became upset as more details about the affair were revealed. He confronted his wife by
telephone, then later when she arrived at his residence. The argument continued, the
two fought physically, and Applicant was arrested and charged with Assault in the 3rd
degree. His wife incurred a concussion in the fracas. Applicant was eventually ordered
to attend an eight-week Family Violence course in lieu of prosecution. Applicant
concedes he “lost [his] cool” and apologizes for the incident.6
On March 12, 2002, Applicant was interviewed by the Defense Security Service
(DSS). During the interview, Applicant stated that no one was injured during the April
16, 1999, altercation and that this was the first altercation involving his first wife.
On December 24, 2004, Applicant and his next wife had been bickering and the
two were drinking alcohol. At one point she fell and hit her head. Applicant helped her
 Id.7
 Item 5 (County Police Narrative Information, dated December 27, 2004).8
 Item 5, supra, note 6.9
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to bed, but she eventually reemerged from her bedroom to join Applicant and her
children from a prior marriage. Tensions remained high and alcohol flowed through
December 25, 2004, and into December 26, 2004, during which time the bickering
continued. On December 26, 2007, an altercation took place between the spouses. The
police were called and Applicant was arrested.   He was intoxicated at the time.  The7 8
altercation took place in the presence of Applicant’s wife’s children, including a 20 year
old daughter. Applicant’s wife and children were interviewed by the police. Although
Applicant’s wife stated she had received a head injury at the hands of Applicant, the
police noted that no injuries were observed.  9
A magistrate issued a protective order and both husband and wife were served.
Applicant was given a domestic violence brochure which also gave him a number for
his case. In court, he pled guilty to the charge(s) of Assault & Battery-Family Member
because he did not have the funds to hire a defense attorney. Consequently, the
various allegations and accusations were not adjudicated. Applicant was directed to
complete a domestic violence course. Upon completion of the course and a two year
sentence in suspension period, the charges were scheduled to be dismissed. A few
months after the incident, Applicant transferred to an office in another state.
On January 5, 2005, in response to question from his security officer, Applicant
did not disclose he was intoxicated, as observed by the police, at the time of his 2004
arrest. He did not discuss how or if he threatened his wife. Applicant signed his
explanation as to the events of December 24 through December 26, 2004. As of
January 2005, Applicant was preparing to divorce his wife after a state imposed
mandatory separation period. 
During an October 28, 2006, interview with an Office of Personnel Management
(OPM) investigator, Applicant said he never became physical during the 2004
altercation with his wife. He also stated he had never previously had adverse
involvement with the police. He failed to disclose he was intoxicated when he was
arrested in 2004. He did not discuss how or if he threatened his wife during the
altercation in 2004.
Policies
When evaluating an Applicant’s suitability for a security clearance, the
Administrative Judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful in
evaluating an Applicant’s eligibility for access to classified information.
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).10
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).11
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).12
 Id.13
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These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The Administrative Judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
2(c), the entire process is a conscientious scrutiny of a number of variables known as
the “whole person concept.” The Administrative Judge must consider all available,
reliable information about the person, past and present, favorable and unfavorable, in
making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based
on the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
The Government must present evidence to establish controverted facts alleged
in the SOR. An applicant is responsible for presenting “witnesses and other evidence to
rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by
Department Counsel. . . .”  The burden of proof is something less than a10
preponderance of evidence.  The ultimate burden of persuasion to obtain a favorable11
clearance decision is on the applicant.  12
 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration
of the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information). “The clearly consistent standard
indicates that security clearance determinations should err, if they must, on the side of
denials.”  Any reasonable doubt about whether an applicant should be allowed access13
to sensitive information must be resolved in favor of protecting such sensitive
 Id.14
 Executive Order 10865 § 7.15
 For the purposes of the disqualifying factors noted below, the allegation is sufficient to raise security16
concerns. Consequently, it is immaterial whether Applicant pled guilty for financial reasons.
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information.   The decision to deny an individual a security clearance is not necessarily14
a determination as to the loyalty of an applicant.  It is merely an indication that the15
applicant has not met the strict guidelines the President and the Secretary of Defense
have established for issuing a clearance.
Based upon consideration of the evidence, I find the following adjudicative
guidelines to be the most pertinent to the evaluation of the facts in this case:
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.  
Guideline E - Personal Conduct. The Concern: 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.
Conditions pertaining to these adjudicative guidelines that could raise a
security concern and may be disqualifying, as well as those which would mitigate
security concerns, are set forth and discussed in the conclusions below.
Analysis
Guideline C, Criminal Conduct
With respect to Guideline J (Criminal Conduct), the Government has established
its case. Applicant admits that he “lost his cool,” was arrested in April 1999, charged
with Assault in the 3  degree, and ordered to attend an eight-week Family Violencerd
class. Applicant concedes he was arrested in December 2004 following an argument
with his wife and admits to pleading guilty to the charge of Assault & Battery-Family
Member.  Such conduct and admissions are sufficient to raise security concerns, and16
invoke Criminal Conduct Disqualifying Conditions (CC DC) 1, AG ¶ 31(a) (a single
serious crime or multiple lesser offenses), and CC DC 3, AG ¶31(c) (allegation or
admission of criminal conduct, regardless of whether the person was formally charged,
formally prosecuted, or convicted), and initiate inquiry.
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Because so few facts have been presented by Applicant, and because he chose
to have a determination on the record, the available facts lack context. What is clear is
that he was charged with assault in a marital context in April 1999. It is also clear that,
five and a half years later, a similar domestic incident occurred. Rather than seek a
public defender or otherwise fight the charge(s) pending, he pled guilty without
defending himself against a serious charge and scandalous accusations. This second
incident occurred a little over three years ago. Consequently, it echoes an allegation
from the past, and his reluctance to clear his name, if not from the actual charge, than
from the accusation of exposing himself in front of a minor, demonstrates poor
judgment. Therefore, Criminal Conduct Mitigating Condition (CC MC) 1, AG ¶ 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) does not apply. 
Although Applicant was intending to divorce his wife as of 2005, potentially
ending any further marital conflicts, there are insufficient facts as to the circumstances
surrounding their disagreement and the altercation that occurred in 1999 to discern
whether CC MC 2, AG ¶ 32(b) (the person was pressured or coerced into committing
the act and those pressures are no longer present in the person’s life) applies.
Applicant admits to the 1999 allegation, concedes a spousal altercation transpired in
2004, and admits he pled guilty to the resulting 2004 charge. Therefore, CC MC 3, AG
¶ 32(c) (evidence that the person did not commit the offense) does not apply. 
Applicant expressed his remorse for the 1999 incident and the incident is nearly
a decade old. He pled guilty, however to a similar charge in December 2004. The
passage of three years since that most recent incident does not establish successful
rehabilitation. This is particularly true when he introduced no facts which might
otherwise give rise to CC MC 4, AG ¶ 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) and there is no assertion
of meritorious circumstances of governmental waiver. As a result, the scant facts of
record do not tend to mitigate the criminal conduct security concerns raised.
Guideline E, Personal Conduct 
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an one’s
reliability, trustworthiness and ability to protect classified information. Special attention
must be given to any failure to provide truthful and candid answers during the security
clearance process or other failure to cooperate with the security clearance process.
Applicant chose not to oppose the amendments to the SOR proposed by
Department Counsel and which were ultimately accepted into the record in the absence
of opposition to their inclusion. The record supports the facts that in mid-March 2002,
Applicant was interviewed by the DSS. During the interview Applicant stated that no one
was injured during the April 16, 1999, altercation and further stated that this was the
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first altercation involving his first wife. On January 5, 2005, Applicant did not inform his
security officer that he was intoxicated, as observed by the police at the time of his
2004 arrest. He also did not elaborate on any specific threats waged against his wife. In
2006, Applicant failed to inform an OPM investigator that he had been physical with his
second wife on December 26, 2004, that he was intoxicated at the time of his 2004
arrest, and that he had made a threat against his wife during their fracas.  Such facts
give rise to Personal Conduct Disqualifying Condition (PC DC) 1, AG ¶ 16(b)
(deliberately providing false or misleading information regarding relevant facts to an
employer, investigator, security official, competent medical authority, or other
government representative) 
The facts show that those allegations are correct. While allegations waged
between spouses in a domestic violence context often amount to “he said, she said”
incidents, the cited incidents have a sound base in the record and Applicant has chosen
not to refute them. Consequently, Personal Conduct Mitigating Condition (PC MC) 6
(the information was unsubstantiated or from a source of questionable reliability) does
not apply. Although PC MC 3, AG ¶ 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) could, in some respects, apply, Applicant
has provided too few facts upon which a favorable application might be drawn. None of
the other mitigating conditions apply. Consequently, Applicant has failed to mitigated
personal conduct security concerns.
Whole Person Concept
Under the whole person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the
Applicant’s conduct and all the circumstances. The Administrative Judge should
consider the nine adjudicative process factors listed at AG ¶ 2(a): “(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) 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.” Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility
for a public trust position must be an overall commonsense judgment based upon
careful consideration of the guidelines and the whole person concept. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the “whole person”
factors noted above. Here, little is known about the Applicant because he has declined
to expand the record beyond the documents contained in the FORM and he chosen to
only address the Guideline J allegations. This is particularly troublesome given the “he
said, she said” nature of incidents like those described in the FORM which have not
 The facts of record include statements from his wives and his second wife’s children, conflicting statements17
and narrative from Applicant, and the more concise, abbreviated notes of attending officers.
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been prosecuted and judicially reviewed.  What is known is that he is a mature man17
with 20 years of service to the U.S. Navy. He has considerable military and life
experience, and has been with his current employer for several years. The
circumstances surrounding the 1999 and 2004 incidents have been described outside
the context of Applicant’s entire life and, indeed, of his marriage. The facts, however,
show that Applicant was a mature man when the first incident occurred, and that he
was then ordered to counseling about family violence. In 2004, he was a mature man
who had received family violence counseling when the second incident occurred. Even
had he been faultless in the second instance, that counseling should have apprised him
of ways to extricate himself from a situation which could be misconstrued, just as
common sense should have advised him to clear his name regarding the second
instance if the allegations made by his wife and daughter were untrue. As it now stands,
on the few facts provided, Applicant has a judicially unrebutted record for domestic
violence which extends to as recently as December 2004. Absent additional facts or
evidence, criminal conduct security concerns remain unmitigated.
The facts also show that Applicant was less than forthcoming in his statements
to the DSS and his security officer. While the unmentioned facts may have seemed
minor to him in light of the bigger issues at hand (the altercations), security concerns
arise when there has been a lack of candor. Declining to address the Guideline E
allegations, Applicant failed to raise facts which might tend to mitigate such security
concerns. Inasmuch as Applicant has failed to meet his burden and mitigate criminal
conduct and personal conduct security concerns, I conclude that it is not clearly
consistent with national security to grant Applicant a security clearance. Clearance is
denied. 
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:
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
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Subparagraph 2.c: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance. Clearance is denied.
__________________________
ARTHUR E. MARSHALL, JR.
Administrative Judge