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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 07-01265
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Daniel F. Crowley, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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LYNCH, Noreen A., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on January 6,
2005. On January 14, 2008, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
J and 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. 
 
Applicant acknowledged receipt of the SOR on January 22, 2008. He requested
a hearing before an administrative judge. I received the case assignment on March 5,
2008. DOHA issued a notice of hearing on April 8, 2008, and I convened the hearing as
scheduled on Tuesday May 6, 2008. The Government offered Exhibits (GE) 1-4, which
were received without objection. Applicant testified in his own behalf and did not submit
any exhibits at the hearing. At Applicant’s request, I left the record open until May 16,
Applicant attached an addendum to his answer to the SOR in which he specifically addressed the allegation1
in 2.b.
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2008 for submission of documents. Applicant timely filed exhibits (AE) A and B.
Department counsel had no objection to their admission into the record. DOHA received
the transcript of the hearing (Tr) on May 15, 2008. Based upon a review of the case file,
eligibility for access to classified information is denied.
Findings of Fact
In his Answer to the SOR, dated January 22, 2008, Applicant admitted the factual
allegations in ¶¶ 1.a-1.c of the SOR. He also admitted the factual allegations in ¶¶ 2.a
and 2.b of the SOR, but he denied that it was an intentional falsification.  He provided1
additional information to support his request for eligibility for a security clearance. 
Applicant is a 56-year-old employee of a defense contractor. He graduated from
high school in 1970. He attended college courses from 1971 until 1974. He also
attended correspondence school until 1977. He completed a program and received a
certificate as a machinist. He was married and divorced three times. He has worked for
his current employer since July 2004 (GE 1).
Applicant traveled extensively for his work throughout the years. He worked for
various companies but was steadily employed. He relates that his travels contributed to
his marriage difficulties. Applicant has three biological children and six by marriage (Tr.
16).
In 2000, Applicant was going through a divorce. His one son was involved in a
gang. Applicant’s former wife (mother of his son) called him one evening to tell him that
their son was involved in an altercation. She reported to him that gun shots had been
fired at the house and she feared for her son and his life (Tr. 19). Applicant quickly left
his home and sped to the house. He had been drinking at home prior to the time of the
call. He was stopped for speeding. Applicant recalls that there was an altercation
between the police officer and himself. As a result, in November 2000, Applicant was
charged with Driving Under the Influence (DUI). He was found guilty (GE 2). He was
fined approximately $1,100 and placed on probation for six months. He completed 50
hours of community service (Tr. 33).
When Applicant started working for his current employer, he told them about the
2000 DUI incident. He also listed the incident on his 2005 security clearance application.
In 2002, Applicant was leaving his ex-wife’s home where he had been making
some repairs. He stopped at a convenience store and bought two 24-ounce beers. He
drank one beer and opened the other (Tr. 23). He was stopped by the police after he
drove away. The officer had been sitting near the convenience store and saw Applicant
leave. Applicant relates that this area is desolate and is considered a “speed trap.” He
was charged with DUI. The court found him guilty on November 9, 2002.  He served
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four days in jail and was fined $2,100 (GE 2). He entered a program of deferred
adjudication. He did not pay the entire amount of the fine but he was released. On July
4, 2004, Applicant made a payment of $267 on the fine. In 2004, he reported that he
would pay the balance within three months. As of the hearing date, Applicant still owed
approximately $750 on the fine.
On Applicant’s January 6, 2005 security clearance application (SF 86), Applicant
answered “yes” to a question about his police record. He listed a 1989 felony offense
(possession of a firearm) and noted the record was sealed (GE 1). He also listed his
DUI from 2000 and noted the records were sealed. He did not list his 2002 alcohol
incident (GE 1).
Applicant related the events of 2000 and 2002 during his security interview with
investigators in 2006. He told them that the 2002 incident was a trumped up charge. He
also related that the state court informed him that this 2002 incident would not be listed
on his record. He told the investigators that he did not list the 2002 incident on his 2005
SF 86 due to an oversight (GE 4).
In his 2007 interrogatories, Applicant revealed that the fine ($777) was not paid
because he believed this was “hush” money to “seal the record” so that it would not be
known to anyone. He intended to pay the rest of the fine but had some financial
difficulties due to his divorces and illness in his family (GE 3). He again stated that he
would pay the rest as soon as possible.
At the hearing, Applicant was adamant that he was not guilty of the 2002 charge.
He then stated at the hearing: “so yes [I] falsified my information but it was under the
intent — or not really, where it’s when they tell you – they said well look, you— these
things are sealed.” Applicant further explained that he did not think it was outright lying
because he had been through the parish courts and they said do not worry about it.
Applicant also made clear that on the application he knew it said “well tell everything
that happened.” (Tr 25). 
When questioned, Applicant revealed that he has filled out a number of security
applications since starting his current employment (Tr. 26). He has worked on sensitive
material and he states that he has never harmed anyone. He has not done anything on
his job that would be considered untrustworthy.
On cross-examination, Applicant admitted that he was angry about the amount of
fine for the 2002 alcohol incident. He blamed the criminal justice system and felt that
race was an issue in the case. He stated that he would send them a payment whenever
he gets some money (Tr 34). However, he still believes he was “robbed” due to the
large amount of the fine.
Applicant admitted that he was under the impression that as long as he paid the
fine under the deferred adjudication program, his records would be sealed. However, he
stopped making the payments. 
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When Applicant responded to the SOR, he stated that when he initially
completed the security clearance questionnaire he misunderstood the instructions to the
question (Addendum to Applicant’s answer to SOR 2008). He continued that “ [I] failed
to read and understand that these charges should be reported even if the record was
sealed.” This does not make sense in light of the fact that in answer to other questions
concerning his police record, Applicant listed the offense and then put records “sealed.”
(Tr 38). He further argued that he just did not accept the fact that he did something
wrong in 2002 (Tr.39). I find that Applicant falsified his security application in 2005 by
intentionally omitting the 2002 DUI.
Applicant explained that he had not paid more on the outstanding fine due to
some other financial problems. He had a knee injury and was receiving a reduced rate
of income on workers’ compensation in 2007. He also is paying for a daughter in college
and some other family members who have needs (Tr 47).
Applicant paid the remaining balance of $750 on his 2002 DUI in two payments
of $375 by money order. He submitted evidence of two payments to the adjudication
program after the hearing and before the record closed (AE A-B). 
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,
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.
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,
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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. 
The guideline notes several conditions that could raise security concerns. Under
AG & 31(a), an Asingle serious crime or multiple lesser offenses@ may be potentially
disqualifying.  Similarly under AG & 31(c), Aan allegation or admission of criminal
conduct, regardless of whether the person was formally charged, formally prosecuted or
convicted@ may raise security concerns. As noted above, Applicant admits he committed
a crime in 2000. He was charged and convicted of DUI in 2002. He also falsified his
January 6, 2005 security clearance application, in violation of 18 U.S.C. Section 1001.
These facts are sufficient to raise these potentially disqualifying conditions, requiring a
closer examination.
The guideline also includes examples of conditions that could mitigate security
concerns arising from financial difficulties. Under AG ¶ 32(a), the disqualifying condition
may be mitigated where Aso 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 current reliability, trustworthiness, or good
judgment.@ Applicant=s DUI was in 2002. However, he had not paid the remainder of the
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fine as late as the hearing date even though he was on notice that this was an issue for
the security clearance. The falsification is more recent (2005). It shows poor judgment
given his record. This potentially mitigating condition does not apply. 
Under AG & 30(d), it may be mitigating where Athere 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.” As noted above, Applicant
just paid his outstanding fine from 2002. This is almost six years later. In fact, he does
not acknowledge the 2002 incident as his fault. This does not support rehabilitation. He
provided no additional information to consider for mitigation. I find this potentially
mitigating condition is not a factor for consideration in this case. 
Guideline E, Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
AG ¶ 15:
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 cooperate with the security clearance process.
The guideline notes several conditions that could raise security concerns. Under
AG ¶ 16 (a) “deliberate omission, concealment, or falsification of relevant facts from any
personnel security questionnaire, personal history statement, or similar form used to
conduct investigations, determine employment qualifications, award benefits or status,
determine security clearance eligibility or trustworthiness, or award fiduciary
responsibilities” is a potential disqualifying condition. 
 
Applicant did not disclose his 2002 alcohol incident in his 2005 security clearance
application. Although he at first stated that he misunderstood the question, due to the
fact that it was to be sealed, he listed other offenses that were sealed. Thus, his
explanation is not credible. He deliberately omitted the information on the 2002 incident.
He did not believe that he was guilty but he knew he was charged and convicted. He
intentionally omitted the information. 
Similarly, AG ¶ 16(e) “personal conduct, or concealment of information about
one’s conduct that creates a vulnerability to exploitation, manipulation or duress, such
as (1) engaging in activities which, if known, may affect the person’s personal,
professional, or community standing” is applicable in this case.
Applicant refused to acknowledge the 2002 incident. He also refused to pay the
remaining fine. At the hearing, he was adamant that he believed he was robbed and
that he would pay sometime when he could. This outstanding balance was from 2002,
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almost six years ago. Moreover, the record was to be sealed if he paid the required fee.
He had not done so until after the hearing in May 2008. 
Paragraph 17 lists conditions that could mitigate security concerns. Specifically, ¶
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 case doubt on the individual’s reliability, trustworthiness, or good
judgement” does not apply in this case. Moreover, ¶17(d) “the individual has
acknowledged the behavior and obtained counseling to change the behavior or taken
other positive steps to alleviate the stressors, circumstances or factors that caused
untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely
to recur” does not apply. Applicant was unwilling to pay the fine for the 2002 DUI
because he disagreed with the conviction. He has not had any other DUI incidents since
2002. However, his refusal to pay the fine until after the hearing is not appropriate
behavior. He did not perform or comply with the rules and regulations and the
agreement in his 2002 deferred adjudication program until faced with the issue of a
security clearance. 
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) 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.” Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility
for a security clearance must be an overall common sense 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 is a hard-working man
who has provided for his family. He received two DUIs. He completed his probation and
community service for the alcohol incident in 2000. However, with respect to the one in
2002, he disagreed with the conviction and refused to complete the program fine until
after his hearing. He still does not believe that he was guilty.  He was a mature man at
the time. His disregard for the rules does not show trustworthiness. His 2005
falsification is recent. Although he first stated that he misunderstood the question, when
Applicant explained the matter at the hearing, his explanation was not credible. He
listed other incidents that had been sealed. Thus, his argument that it was sealed is not
persuasive. Applicant did not comport with the agreement in the 2002 deferred
adjudication. He has a good employment record but that alone is not sufficient to grant a
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security clearance and mitigate the concerns under the criminal conduct and personal
conduct guidelines.
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has not mitigated the security concerns arising from his criminal
conduct and personal conduct. 
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
Subparagraphs 1.a-c: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraphs 2.a-b: 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.  Eligibility for access to classified information is denied.
                                              
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NOREEN A. LYNCH
Administrative Judge