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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------------------------- )       ISCR Case No. 07-07391
SSN: ------------------ )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Esquire, Department Counsel
For Applicant: Pro se
May 8, 2008
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on April 14, 2006
(Government Exhibit 1).  On October 17, 2007, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns
under Guidelines J and E concerning the 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 President Bush
on December 29, 2005, and effective within the Department of Defense for SORs
issued after September 1, 2006. 
 
Applicant submitted an Answer to the SOR on November 7, 2007, and requested
a hearing before an Administrative Judge.  Department Counsel was prepared to
proceed on January 7, 2008.  I received the case assignment on January 9, 2008.
DOHA issued a notice of hearing on February 6, 2008, and I convened the hearing as
scheduled on February 25, 2008.  The Government offered Government Exhibits 1
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through 4, which were received without objection. Applicant testified on his own behalf
and submitted Applicant’s Exhibits A through G, without objection.  DOHA received the
transcript of the hearing on March 5, 2008.  Based upon a review of the case file,
pleadings, exhibits, and testimony, eligibility for access to classified information is
granted.
Findings of Fact
The Applicant is 45, single and has an Associate of Science degree in
Administration of Justice.  He is employed by a defense contractor as a Laboratory
Technician and seeks to retain a security clearance previously granted in connection
with his employment.
Guideline J - Criminal Conduct
The Applicant has been arrested twice.  The first arrest happened in February
22, 2002.  On that occasion the Applicant was charged with Driving Under the Influence
of Alcohol and Driving With a Blood Alcohol Level above .08%.  He plead no contest to
a reduced charge of Reckless Driving and received a suspended sentence for 36
months, fines and ordered to attend a six month first offender alcohol education and
counseling program.  The Applicant successfully completed all the sentence
requirements and has had no further alcohol related incidents.  
The Applicant submits that this arrest is an aberration.  This incident occurred
during a very tumultuous time in the Applicant’s life.  Both of his grandparents had died
within a week of each other in September 2001; he had been offered employment with
his current company on October 31, 2001; he was terminated from his then employer on
November 5, 2001; and he had been informed on the day of his arrest of the
forthcoming date of his divorce from his first wife.  (Government Exhibits 3 and 4;
Applicant’s Exhibits E and F; Transcript at 65-70, 78-80.) 
The Applicant’s second arrest occurred on October 28, 2004.  In the 1990s the
Applicant had worked in a gun store and also was a Reserve Police Officer.  He had
considerable knowledge and training in the proper use of weapons.  During that time he
had acquired a large collection of weapons, worth between $80,000.00 and
$100,000.00.  All of the approximately 58 weapons had been acquired legally.  Nine of
these weapons were subsequently classified as assault weapons and, as such, had to
be registered or surrendered.  The Applicant did neither.  In addition, another one of his
weapons had been altered so that it was legally viewed as a machine gun.
The evidence is mixed and somewhat contradictory as to what happened on the
day in question.  After reviewing all the available evidence, including the police report,
the Applicant’s testimony and the Report of Investigation, I make the following findings
of fact.  The Applicant, while attempting to clear a jammed round in one of his rifles,
shot out a street light in a neighboring lot.  Given the Applicant’s knowledge of weapons,
and weapons safety, this was at the very least a negligent act on his part.  The police
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were called to his location because of the shot and, during the investigation, confiscated
all of his weapons.  The Applicant initially denied any knowledge of the incident, but
eventually admitted it.
The Applicant was subsequently charged with several felonies, including one
count of Discharging a Weapon in Public, one count of Unlawful
Possession/Transportation of a Machine Gun, and nine counts of Unlawful Possession
of an Assault Weapon.  On March 10, 2005, he pled nolo contendere to two
misdemeanor counts, one count of Discharging a Firearm in Public and one count of
Unlawful Possession of an Assault Weapon.  He was sentenced to 60 days in jail, with
two days credit and allowed to substitute community service for the remaining days.  He
was also put on 36 months informal probation; fined approximately $5,000.00; all of his
weapons were confiscated and destroyed; and he was prohibited from possessing
firearms.  The Applicant’s probation was due to end two weeks after the hearing.  The
Applicant testified that, while the Court ordered him not to possess firearms, he also has
no desire to possess or shoot them in the future, because of the turmoil owning
weapons has caused him to have in his life.  (Government Exhibits 1 and 2; Applicant’s
Exhibit G; Transcript at 46-65, 80-88, 94-95).  
Guideline E - Personal Conduct
Under subparagraph 2.a., the Government alleges that the Applicant’s conduct
set forth in Paragraph 1, above, has independent validity under this Guideline.
Specifically, that his conduct shows questionable judgement and/or dishonesty that
raises questions about the Applicant’s reliability, trustworthiness and ability to protect
classified information.  The facts set forth under Paragraph 1, above, will also be
considered under this Guideline.  
Subparagraph 2.b. concerns the Applicant’s termination from employment in
November 2001.  The circumstances of his termination are subject to some debate
since he had just been offered a job by his current employer days before he was let go.
Under the facts of this case, I find that the Government has not shown that the
Applicant’s termination shows poor judgment on his part.  This subparagraph is found
for the Applicant.  (Applicant’s Exhibit D at 1, Transcript at 72-76.)
Mitigation
The Applicant submitted documentary evidence showing that he is a highly
respected person and employee.  Several friends and work associates submitted letters
on his behalf to the Court in 2004.  (Applicant’s Exhibit A.)  The Applicant is described
as someone who is “genuine,” “resourceful,” and “a solid citizen.”  He has received
several certificates of recognition and spot awards during his current employment.
(Applicant’s Exhibit D at 7-12.)
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Policies
Security clearance decisions are not made in a vacuum.  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.  In addition, the Administrative Judge may also rely on his own
common sense, as well as his knowledge of the law, human nature, and the ways of the
world, in making a reasoned 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,
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. Security clearance decisions include, by
necessity, consideration of the possible risk that 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.
 
Finally, as emphasized by President Eisenhower in Section 7 of Executive Order
10865, “Any determination under this order . . . shall be a determination in terms of the
national interest and shall in no sense be a determination as to the loyalty of the
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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 doubts 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 Applicant was involved in criminal incidents in 2002 and 2004.  The 2004
incident involved firearms and is, therefore, a serious crime.  AG ¶ 31(a) applies to this
case, stating that a disqualifying condition is “a single serious crime or multiple lesser
offenses.”  In addition, AG ¶31(d) applies because, as of the date of the hearing, the
Applicant was still on probation for another two weeks.
Under the particular facts of this case, several of the mitigating conditions also
apply and justify a finding for the Applicant as to this Guideline.  They are 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”; and AG ¶ 32(b), “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.”
It is clear from the evidence that these two incidents were aberrations for the
Applicant.  In looking at this case I have considered the Applicant’s background as a
Reserve Police Officer and his knowledge of weapons safety.  His conduct was
negligent and could have been dangerous.  However, he has accepted his punishment
for both offenses, been forthcoming with the Government on every opportunity and
expresses a credible intent not to engage in such conduct in the future.  The Applicant
did not attempt to justify his conduct, but rather accepted the fact that, on those
occasions, he exhibited extremely poor judgment.  The Applicant has mitigated the
security significance of his criminal conduct and Paragraph 1 is therefore found for the
Applicant. 
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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 provide
truthful and candid answers during the security clearance process or any
other failure to cooperate with the security clearance process.
The guideline notes several conditions that could raise security concerns, one of
which is arguably applicable here. Under AG & 16(c), “credible adverse information in
several adjudicative issue areas that is not sufficient for an adverse determination under
any other single guideline, but which, 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 that the person may not properly safeguard protected information,” may be
disqualifying.  The Applicant has a criminal arrest history which includes a weapons
related conviction.  The evidence is sufficient to raise this potentially disqualifying
condition, requiring a closer examination.
The guideline also includes examples of conditions that could mitigate security
concerns arising from personal conduct involving questionable judgment. Under AG ¶
17(c), the disqualifying condition may be mitigated where “the offense is so minor, 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,” and 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.”
As stated above under Paragraph J, these two incidents were an aberration for
the Applicant.  While he has been on probation for the last offense, he has made
changes in his life and matured a great deal.  He understands and appreciates how his
conduct endangered others, and reflected poorly upon himself.  The evidence shows
that the Applicant has reformed and that such acts will not occur in the future.
Paragraph 2 is found for the Applicant.  
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
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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.  The Applicant is a hard-working,
respected, professional person who has overcome his earlier criminal conduct.  In
viewing all the facts of this case, I find that the Applicant has mitigated the security
significance of his prior conduct.  As set forth at length above, I find that there have
been permanent behavioral changes under AG ¶ 2(a)(6).  In addition, I find that there is
little to no potential for pressure, coercion, exploitation, or duress (AG ¶2(a)(8)), and
that the likelihood of recurrence is close to nil (AG ¶2(a)(9)). 
Overall, the record evidence leaves me without questions and/or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude the Applicant has mitigated the security concerns arising from his criminal
conduct and personal conduct.  
On balance, it is concluded that the Applicant has successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a finding for the Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1 and 2 of the Government's Statement of
Reasons. 
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 THE APPLICANT
Subparagraph 1.a: For the Applicant
Subparagraph 1.b: For the Applicant 
Subparagraph 1.c: For the Applicant
Paragraph 2, Guideline E: FOR THE APPLICANT
Subparagraph 2.a: For the Applicant
Subparagraph 2.b: For the Applicant
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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.
                                              
_________________
WILFORD H. ROSS
Administrative Judge