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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 07-02758
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Alison O’Connell, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant submitted his security clearance application (SF 86) on September 6,
2006. On July 19, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the security concerns under Guideline J and
Guideline E for Applicant. The action was taken under Executive Order 10865,
Safeguarding Classified Information within Industry (February 20, 1960), as amended;
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. 
 
With the assistance of legal counsel, Applicant answered the SOR in writing on
September 19, 2007, and requested a hearing before an administrative judge. On
September 27, 2007, DOHA notified Applicant that his response was not complete. On
October 9, 2007, again with the help of legal counsel, Applicant filed an amended
answer to the SOR in which he reiterated his request for a hearing. Department
Counsel was prepared to proceed on January 3, 2008, and the case was assigned to
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me on January 30, 2008. On February 1, 2008, I scheduled a hearing for February 29,
2008.
I convened the hearing as scheduled. The government’s case consisted of three
exhibits (Ex. 1-3). Applicant represented himself. He and his girlfriend testified on his
behalf, and he submitted 23 exhibits (Ex. A-W) that were entered without objections. A
transcript (Tr.) of the hearing was received by DOHA on March 11, 2008.
The record was held open until March 21, 2008, for clarification concerning the
paperwork completed in application for Applicant’s security clearance. On March 18,
2008, Applicant submitted a timeline prepared by him and an adverse information report
from his employer. On March 20, 2008, Department Counsel indicated she had no
objections to their admission, and they were entered as exhibits X and Y, respectively.
Department Counsel also conceded based on the evidence that Applicant’s failure to list
his arrests on his September 2006 SF 86 was unintentional. Based upon a review of the
case file, pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
Findings of Fact
DOHA alleged under Guideline J, criminal conduct, that Applicant was arrested
on July 2006 for simple assault resulting in a restraining order against him (SOR ¶ 1.a),
was arrested the following day for violation of that restraining order and sentenced to 30
days in jail, suspended for one year (SOR ¶ 1.b), and was arrested and charged in
September 2006 with five counts of violation of the restraining order but pleaded guilty
to one count (SOR ¶ 1.c). Under Guideline E, personal conduct, Applicant was alleged
to have falsified material facts on his September 2006 SF 86 by failing to disclose his
arrests. Since the government now concedes the omissions were unintentional, the
matters relating to Guideline E will not be discussed further and favorable findings will
be entered for Applicant as to SOR ¶¶ 2.a and 2.b.
In his amended Answer, Applicant admitted the arrests that occurred during a
tumultuous time in his marital relationship with his third wife, but denied he assaulted
her or that he violated the restraining order. He explained that he was arrested in July
2006 for allowing a third person (his mother) to call his wife, although he did not ask or
want his mother to contact her. Applicant averred he pleaded guilty to one charge of
violating the restraining order in September 2006 because he went over to his ex-wife in
front of the courthouse, but she had waived him over. After consideration of the
evidence of record, I make the following findings of fact.
Applicant is a 49-year-old microwave assembler specialist who has worked for
his present employer, a defense contractor, since late April 2002 (Ex. 1, Ex. N).  He has
held a security clearance since October 21, 2002 (Ex. Y, Tr. 104).
Three months into his marriage to his first wife, Applicant entered on active duty
in the United States Coast Guard in about January 1979 (Ex. 1, Ex. N). He was a
During an interview with a government investigator on January 31, 2007, Applicant indicated this incident,1
and his mother telephoning his spouse, occurred on July 23 and 24, 2006, respectively (Ex. 2). Court
documents show the events took place over the July 29-30, 2006, time frame (Ex. A, Ex. B, Ex. G, Ex. Q).
Applicant testified that he knew a three-day emergency protection order had been issued against him when2
he was released (Tr. 122). Court records indicate a protective order was issued on July 30, 2006 (Ex. Q).
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steady, dependable damage controlman who exhibited pride in his work during the ten
months he was aboard a Coast Guard vessel (Ex. U). In April 1983, he separated from
active duty at the rank of petty officer third class and went to work in the commercial
sector (Ex. 1, Ex. N).
In March 1984, he married his second wife (Ex. 1, Ex. N), and they had three
children (Ex. N, Tr. 101). They divorced in November 1994 (Ex. 1). Applicant was
employed during this time as a chemical technician for an analog devices company. He
was a very conscientious worker who was self-motivated and responsible, including in
all aspects of safety and security. He distinguished himself by his cooperative attitude
and leadership style (Ex. O).
In March 2002, Applicant went to work as an airport screener. He left the job after
only one month to work for his present employer (Ex. 1, Ex. N). Applicant showed little
initiative or interest in his initial duties and his work performance was rated as marginal
for his first eight months on the job. Over the next year, he found his expertise as a
rework person and in a short period, he became an essential part of an array test team.
He exhibited excellent job knowledge, teamwork, cooperation, and initiative, resulting in
an overall performance rating of excellent for 2003. In 2004, Applicant expanded his
skills in all aspects of the rework processes required to support the test technicians in
the array test area, and his overall performance was rated as outstanding. He continued
to be self-motivated in 2005, and was considered to be “a definite asset to his team, the
shift, and the company.” (Ex. C).
In late January 2006, Applicant married his third wife (Ex. E, Ex. N). She had
been married three times before (Ex. E). They had marital problems almost from the
start, in part exacerbated by her depressive disorder (Ex. 2, Tr. 113-14). On July 29,
2006,  Applicant and his spouse had a disagreement over the computer. Around 1:001
p.m. that day, Applicant had a friend over to assess the computer problem. His spouse
refused to cooperate with requests from his friend for information. After his spouse
came home from work, Applicant told her he wanted a divorce, and he left the premises.
He and his spouse argued when he returned later that night. Applicant called the police
to calm her down. After she complained he had hit her on the leg with a telephone,
Applicant was arrested for simple assault, a class A misdemeanor (Ex. 2, Ex. A, Ex. B,
Tr. 109-21).  A family court judge issued an emergency order of protection on July 30,2
2006, ordering Applicant to have no contact, including by third persons, with his spouse
(Ex. Q).
Following his arrest, Applicant went to stay at his mother’s home. Needing
clothes so that he could report to work, Applicant’s mother contacted his spouse on July
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30, 2006 (Ex. 2, Tr. 122). Applicant denies he asked his mother to call his spouse and
that he was sleeping at the time (Tr. 123-24). His spouse got angry and contacted the
police. Applicant was arrested and charged with violating a protective order, a class A
misdemeanor (Ex. 2, Ex. Q). In court on July 31, 2006, Applicant pleaded nolo
contendere but was found guilty and sentenced to 30 days in the house of correction,
suspended for one year on good behavior, and no contact with his spouse pursuant to
any pending protective order (Ex. G, Tr. 126).
 On August 10, 2006, Applicant was formally charged with simple assault of his
spouse on July 29, 2006 (Ex. 2, Ex. A, Ex. B). She was granted an automatic restraining
order for one year (Tr. 137). He planned to file for divorce while at the courthouse.
Before entering the courthouse, his spouse called him over to her vehicle. Applicant
assumed she wanted to discuss the divorce so he went over. Applicant maintains that
after she made derogatory statements, he went inside the courthouse as he did not
want to get into trouble (Tr. 129-30). Applicant left the premises after filing for divorce
(Ex. E, Tr. 130).
On or about August 31, 2006, Applicant filled out a security clearance application
(Ex. N), apparently for a top secret clearance. Applicant testified that he was granted a
top secret clearance but that it was not active since he did not need it for his present
duties (Tr. 104-05).
On September 5, 2006, Applicant was charged with four counts of violating a
protective order for going over to his spouse’s car and talking to her on August 10, 2006
(Ex. H), and with a fifth count on a complaint from his spouse that he telephoned her
and left a message on her answering machine on August 9, 2006 (“Oh, and then she
said that I called her or something. She made a few lies, so I think they weren’t able to
prove them.” Tr. 133) (Ex. K).
Applicant appeared in court on November 16, 2006, on the simple assault and
the September 2006 violation of restraining order charges. He pleaded not guilty to the
simple assault, and the charge was filed without a finding for one year (Ex. B). Under a
negotiated plea, Applicant changed his plea to guilty of the restraining order violations.
He was convicted and sentenced on one count for violating the order on August 10,
2006, to 30 days in the house of correction/30 days deferred on one year of good
behavior (no felonies, misdemeanors or motor vehicle violations) (Tr. 133). At the end of
that year, he could petition to suspend the 30-day jail sentence for one year. The
remaining counts were filed without a finding (Ex. I, Ex. J, Ex. L, Ex. M). Applicant’s
divorce became final on October 25, 2006 (Ex. E).
Applicant notified his facility security officer of his arrests for simple assault and
for violation of a restraining order. Applicant testified with no rebuttal from the
government that he notified his employer within a week of his arrests (Tr. 136). On
November 28, 2006, his employer submitted an adverse information report to DISCO
notifying the government of Applicant’s arrests in July 2006 for simple assault and
violation of a restraining order (Ex. Y).
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On January 31, 2007, Applicant was interviewed by a government-authorized
investigator about the simple assault and violation of restraining order charges in July
2006. Applicant indicated that all charges against him had been dropped with the
exception of two violations of the restraining order: for his mother calling his spouse on
July 24, 2006 [sic] and for him contacting her in the parking lot on an unrecalled date
(Ex. 2).
In June 2007, Applicant was asked by DOHA to update information regarding his
court appearances and arrests. He indicated he had not been charged with any
protective order violations since September 2006 (Ex. 3), and there is no evidence to
the contrary.
The protective order against him expired in August 2007. On September 10,
2007, Applicant petitioned for return of the firearm that he had to surrender to the police
under the domestic violence protective order (Ex. R). Applicant’s ex-wife does not
consider Applicant to be a danger to her or to others. She regrets she obtained a
restraining order against him. She attributes the July 2006 incident to her being stressed
out and to her medications for a major depressive disorder (Ex. D).
Applicant’s personal problems with his third wife did not adversely affect his
work. He achieved, and in some cases, exceeded his employer’s requirements. Overall
for 2006, he was considered to be a “huge asset to the [bulkhead build work] because
of his even-tempered disposition and his willingness to help anyone who asks for his
help.” (Ex. F). He continued his good performance in 2007. He was moved into two new
areas within a year’s span, and accepted the challenges of his new assignments with an
“excellent professional attitude.” (Ex. P).
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.
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
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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.
Under Directive ¶ E3.1.14, the government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the 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
Applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
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).  
Analysis
Guideline J, Criminal Conduct
The security concern relating to the guideline for criminal conduct is set out in AG
¶ 30: “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.” Applicant was arrested in July 2006 for
simple assault following an argument with his third wife on her complaint that he had
struck her in the leg with a telephone. An emergency protective order was issued
against him, and he was arrested the following day for violating that order because his
mother contacted his spouse. Additional charges of violating a protective order were
filed against him in September 2006, for talking to his spouse outside the courthouse in
August 2006, and on a complaint by his spouse that he had called her the previous day
and left a message on her answering machine. Applicant denies that he assaulted his
spouse or that he knowingly violated the protective order in July 2006, although he does
not contest that his mother called his spouse. He also does not contest that he spoke to
his wife outside the courthouse, but avers he thought it would be okay since it was out
in the open and she called him over. Applicant maintains that his spouse fabricated the
telephone call in August 2006.
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Available court records show Applicant pleaded nolo contendere to the July 2006
violation of the restraining order since his mother contacted his spouse. In November
2006, he entered into a negotiated plea wherein he changed his plea to guilty on all
counts of violating the restraining order in return for his conviction on one count for
speaking with his spouse on August 10, 2006.  He continued to protest his innocence of
the simple assault by pleading not guilty to that charge, and it was filed without a finding
by the court. The available record does not prove Applicant assaulted his spouse in July
2006 (see AG ¶ 32(c) (“evidence that the person did not commit the offense”)), and a
favorable finding is warranted as to SOR ¶ 1.a. However, the evidence establishes
violation of the restraining order on two occasions, through his mother on July 30, 2006
(SOR ¶ 1.b), and on August 10, 2006 (SOR ¶ 1.c), after he had been sentenced for the
July charge and ordered to have no contact with his spouse. AG ¶ 31(a) (“a single
serious crime or multiple lesser offenses”) applies.
Applicant testified he is on two years of unsupervised probation for violating the
protective order (Tr. 140). The lawyer who represented him at sentencing in November
2006 indicates (Ex. M), and the court record confirms (Ex. I), that Applicant was given
30 days in jail, deferred for one year, and thereafter suspended for one year on a
petition. Applicant could be incarcerated for 30 days should he commit a criminal
offense or even a moving violation, but a deferred sentence is not a term of probation
that implicates AG ¶ 31(d) (“individual is currently on parole or probation”).
The restraining order violations are too recent to satisfy the first prong of 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”), but they also occurred in
the context of a new marital relationship with someone who contributed to, if not
caused, the discord between them. His third wife admits she was having problems with
her psychiatric medications at the time. An evaluation of the restraining order violations
shows Applicant exhibited poor judgment in failing to recognize that he should not have
approached his spouse outside the courthouse, but there is no evidence he intended
violence against his soon-to-be ex-wife on that occasion. Although Applicant technically
violated the emergency protection order through a third person in July 2006, it was not
proven that he asked his mother or otherwise approved of her calling his spouse. With
the termination of their marriage in October 2006, the criminal conduct is not likely to
recur. There is no evidence of domestic violence concerns during Applicant’s second
marriage. His performance evaluations are telling in their favorable comments about his
“even-tempered disposition.”  Outside of this short-term troubled relationship, Applicant
has demonstrated a stable lifestyle and a good employment record free of any criminal
conduct (see 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”)). Applicant blames his ex-wife:
I would like to state that after all this was all done, and the restraining
order was all done, my ex-wife at the time actually came to my house, and
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showed up unannounced, and decided that she wanted me back, which I
found totally insane. I just couldn’t believe it myself, that this woman
actually showed up and wanted me to go back with her, after everything
she put me through and done to me (Tr. 148-49).
Ordinarily, a failure to exhibit sufficient remorse would raise considerable doubts for
one’s rehabilitation, but there is limited evidence of culpability on his part, and his ex-
wife regrets she obtained a restraining order against him following a “ridiculous
argument” between them when she was “very stressed out” (Ex. D).
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 security
clearance 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. Applicant’s criminal conduct is
relatively recent, but also minor at least with respect to the actual behavior by Applicant
that led to the criminal charges. He reported the charges to his employer as required
and has proven his trustworthiness and reliability on the job while holding a security
clearance since 2002. On the whole, it is clearly consistent with the national interest to
continue his access.
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: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
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Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                                
ELIZABETH M. MATCHINSKI
Administrative Judge