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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )     ISCR Case No. 07-05139
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: James F. Duffy, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Criminal conduct concerns raised by his felony drug conviction are mitigated by
the passage of time and compliance with sentencing terms. Personal conduct concerns
persist because he denied any felony convictions when he applied for a security
clearance. Eligibility for a security clearance is denied.
Statement of the Case
Applicant submitted an Electronic Questionnaire for Sensitive Positions (e-QIP)
on October 26, 2006. On August 31, 2007, the Defense Office of Hearings and Appeals
(DOHA) issued a Statement of Reasons (SOR) to Applicant detailing security concerns
under Guideline J and Guideline E as the bases for its decision to deny his request for a
security clearance. 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
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guidelines (AG) promulgated by the President on December 29, 2005, and effective
within the Department of Defense for SORs issued after September 1, 2006. 
 
On September 5, 2007, Applicant answered the SOR in writing and requested a
decision without a hearing. On February 27, 2008, the government submitted a File of
Relevant Material (FORM) consisting of 11 exhibits (Items 1-11). DOHA forwarded a
copy of the FORM to Applicant and instructed him to respond within 30 days of receipt.
Applicant did not respond by the April 3, 2008, due date, and on May 30, 2008, the case
was assigned to me to consider whether it is clearly consistent with the national interest
to grant or continue a security clearance for Applicant. Based on a review of the
government’s FORM, including Applicant’s answer to the SOR (Item 4), eligibility for
access to classified information is denied.
Procedural and Evidentiary Rulings
Motion to Amend SOR
DOHA alleged in part under Guideline J that Applicant was disqualified from
having a security clearance granted or renewed under 10 U.S.C. § 986 because he had
been incarcerated from March 15, 1990, to August 1, 1991, and then on work release
until December 2. 1991, following his conviction of felony possession of cocaine with
intent to distribute (SOR ¶ 1.b). In the FORM, the government moved to withdraw SOR
¶ 1.b due to the repeal of 10 U.S.C. § 986. On January 28, 2008, the President signed
into law Public Law 110-181, the National Defense Authorization Act for Fiscal Year
2008, Section 1072 which repealed 10 U.S.C. Section 986, formerly known as the Smith
Amendment. Under 50 U.S.C. § 435c, after January 1, 2008, an employee of a
contractor of a federal agency who has been convicted in any court of the United States
of a crime, sentenced to imprisonment for a term exceeding one year and incarcerated
under that sentence for not less than one year, may not be granted or renewed a
security clearance, absent an express waiver, if that clearance provides for access to
special access programs, restricted data, or sensitive compartmented information.
Since Applicant seeks a collateral clearance, there is good cause to grant the
amendment. Accordingly, SOR ¶ 1.b is considered withdrawn. Findings and conclusions
still warrant and will be made as to SOR ¶ 1.a concerning Applicant’s arrest, conviction,
and sentence on the drug charge, and as to SOR ¶ 2.a concerning his alleged failure to
list that offense on his SF 86.
Findings of Fact
DOHA submits under Guideline J, criminal conduct, as amended, that Applicant
was sentenced to 20 years in prison, 14 years suspended, for a June 1989 charge of
felony possession of cocaine with intent to distribute, and that he was incarcerated from
March 15, 1990, to August 1, 1991, was on work release to December 2, 1991, and
remains on probation to 2010 (SOR ¶ 1.a). Under Guideline E, personal conduct,
Applicant is alleged to have deliberately falsified an Electronic Questionnaire for
The security clearance application admitted as Item 5 is a Standard Form 86-Questionnaire for Sensitive1
Positions bearing a typewritten entry on page 7 of “SF-86 DATED 10/25/06 ********** END OF EQSP.”
However, the attached signature page bearing Applicant’s handwritten signature and date of “10-26-06" is a
signature form for the electronic version (Electronic Questionnaire for Investigations Processing (e-QIP)) of
the SF 86.
The Answer submitted as Item 4 consists of three pages. The first two pages are a copy of the original SOR2
containing Applicant’s responses to the Guideline J concerns only, and no response to the Guideline E
concern. On November 14, 2007, Applicant’s employer of record faxed a copy of the second page of
Applicant’s SOR also bearing a notarization on September 5, 2007, but containing his responses to the
Guideline E concern. DOHA included it as page 3 of Applicant’s Answer. It is not clear whether Applicant
answered the Guideline E concern in September or in November 2007.
Applicant told a government investigator on February 20, 2007, that he was convicted of a reduced charge3
of possession of cocaine (Item 6). The FBI also reports, apparently on information from correctional
authorities, that Applicant was sentenced to six years for possession of cocaine (Item 7). Yet, the circuit court
sentencing record shows he was convicted of cocaine possession with intent to distribute (Item 9). Local police
report a charge of possession of cocaine with intent to distribute (Item 8).
The dates of his incarceration are taken from the activity dates reflected on the prisoner location record (Item4
10). The release date in November 1991 conforms to the date he indicates he was paroled (Item 6).
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Investigations Processing (e-QIP) executed on October 26, 2006,  in that he responded1
negatively to whether he had ever been charged with or convicted of a felony offense
(SOR ¶ 2.a). In his Answer, Applicant denied the alleged falsification without
explanation but admitted the felony drug charge, conviction, and sentence.  After2
considering the evidence of record, I make the following findings of fact.
Applicant is a 52-year-old painter who has worked for his present employer, a
defense contractor, since April 1992 (Item 5). The record available for review does not
reflect that he holds a security clearance.
In about 1986, Applicant began to use cocaine. He continued his involvement
with the drug by himself or at parties approximately three times weekly until June 1989
(Item 6). Sometime in or before June 1989, Applicant began to sell cocaine. He was
arrested at his home in June 1989 and charged with possession of cocaine with intent
to distribute, a felony. He was jailed for four days and then released on $50,000 bail
(Item 6). In early February 1990, he pleaded guilty to the felony charge.  He was3
sentenced to 20 years in the state penitentiary, 14 years of the prison term suspended
to be spent on probation with conditions. The conditions were that he be of good
behavior, not violate the law, comply with the terms of his parole and probation,
including complete any drug/alcohol program deemed appropriate by his probation
officer, and pay court costs within two years of his release from confinement. He was
also ordered to pay a $5,000 fine at a rate and an amount set by his probation officer
prior to the end of his suspension (Items 6, 7, 8, 9).
Applicant was incarcerated from about mid-March 1990, to mid-November 1991.4
While in custody, he voluntarily attended a drug treatment program consisting of twice
weekly group sessions (Item 6). He was on work release for the last five months, from
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June to November 1991 and then paroled. In mid-April 1993, he was discharged from
parole and placed on probation for the remainder of his sentence (Items 6, 10). As of
February 2007, Applicant had paid his fines in full and was on unsupervised probation.
He is scheduled to be released from probation in 2010 (Item 6).
On or about October 25, 2006, Applicant completed an Electronic Questionnaire
for Investigations Processing (e-QIP) that was entered into the e-QIP system
electronically. On October 26, 2006, he certified that his statements on the e-QIP were
“true, complete, and correct to the best of [his] knowledge and belief and [were] made in
good faith.” (Item 5). A printed form of the completed e-QIP was not included in the file
for review.
A Questionnaire for Sensitive Positions (SF 86) was prepared and then printed
out on November 7, 2006. “NO” responses were entered as to all the police record
inquiries including “23A - FELONY?” (Item 5). The evidence is inconclusive as to who
entered the data entries that appear on the SF 86, but the document on its face
indicates it is the property of the U.S. Office of Personnel Management (OPM). Item 5 in
the FORM includes the SF 86 with Applicant’s signature forms from the e-QIP attached.
There is no information of record as to how the signature forms for the e-QIP came to
be attached to the SF 86, which does not contain a signature block.
A check of Applicant’s record with the Federal Bureau of Investigation (FBI)
revealed on November 8, 2006, that Applicant had been sentenced to six years in
prison in 1990 for “poss cocaine” (Item 7). On February 20, 2007, Applicant was
interviewed by an investigator for the Department of Defense about his criminal
conduct. Applicant averred he had been arrested in June 1989 for possession of
cocaine with intent to distribute, but convicted of a reduced charge of possession of
cocaine. He acknowledged his 20-year-prison sentence, 14 years suspended, although
he only served 21 months. He denied any violations of his probation, currently
unsupervised, from which he will be released in 2010. Applicant denied any use of
cocaine since that arrest or any future intent to use drugs (Item 6). There is no
indication that the investigator inquired about any omission of the charge from his e-
QIP.
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 overarching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
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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.
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 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 engaged in the sales of cocaine in at least June 1989 if
not before. He told a government investigator in February 2007 that he believed
someone had alerted police that he was selling cocaine and that the police had him
under surveillance before his arrest in June 1989 (Item 6). In February 1990, Applicant
was convicted of possession of cocaine with intent to distribute, a felony offense under
state law. Sentenced to serve six years in the state penitentiary, he was paroled in
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about November 1991 after 20 months of incarceration. Disqualifying conditions AG ¶
31(a) (“a single serious crime or multiple lesser offenses”) and AG ¶ 31(c) (“allegation or
admission of criminal conduct, regardless of whether the person was formally charged”)
apply because of his felonious criminal conduct. AG ¶ 31(d) (“individual is currently on
parole or probation”) also is implicated because he is on probation, albeit now
unsupervised, until 2010.
Involvement in illegal drug distribution or sales reflects a serious disrespect for
the law. Applicant submits in mitigation that he stopped his illegal drug involvement after
his arrest on the felony drug charge. Certainly while he was incarcerated from March
1990 to November 1991, he was not in a position to access illegal drugs for sale or
personal consumption, and there is no evidence of any involvement with illegal drugs
since he was paroled. 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”) applies in mitigation of his drug sales. The absence of any recurrence of
drug-related criminal conduct for some 19 years is also a relevant factor in assessing
whether Applicant has demonstrated sufficient reform to warrant favorable consideration
of 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”). So too is his current probationary status, which although not a per se bar
to a clearance, raises somewhat his burden of showing successful rehabilitation. The
state where he committed the criminal conduct has not yet seen fit to release him. Yet,
the fact that his probation apparently has been unsupervised since at least 2007 if not
before indicates that he has been compliant with its conditions. He asserts, also with no
evidence to the contrary, that he has paid all his fines for his offense. What little can be
garnered from the limited information about his work record available for review is that
he has been employed by the same company since April 1992, which shows a stable
work record. Applicant also took steps to ensure that his drug activity would not recur by
voluntarily obtaining counseling while he was in prison. Correctional officials did not
consider him at significant risk to re-offend since they granted parole after he served 20
months of the six-year sentence. He is sufficiently rehabilitated of his drug-related
criminal conduct to find for him as to SOR ¶ 1.a.
Guideline E, Personal Conduct
The security concern 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.
Department Counsel asserted in the FORM that Applicant in his Answer  “is apparently admitted that he did5
not provide the requested information, but denying that he falsified his [e-QIP].”  I am not persuaded that
Applicant was admitting to other than that he had been charged and convicted of a felony.
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DOHA alleged Applicant deliberately falsified his e-QIP by responding negatively
to inquiry concerning whether he had ever been charged with or convicted of any felony
offense. Under AG ¶ 16(a), personal conduct concerns are raised by the “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.” Since Applicant denied any intentional falsification, albeit with no
explanation,  the government has the burden to prove that he knowingly and willfully5
concealed his felony conviction when he applied for his security clearance.
Likely due to the e-QIP being transmitted electronically, the file available for
review does not contain the e-QIP on which Applicant allegedly answered “No” to 23a,
“Have you ever been charged with or convicted of any felony offense? (Include those
under the Uniform Code of Military Justice).” The government submitted a SF 86 dated
November 7, 2006 (Item 5), containing the same lines of inquiry but in truncated form
(e.g., “23A-FELONY?”) with attached signature forms from the e-QIP dated October 26,
2006. The government offered no evidence to explain  the process of completing the SF
86, such as who entered the data onto the SF 86 or how Applicant’s signature forms for
the e-QIP completed days earlier, came to be appended to a SF 86 that on its face is
the property of OPM.
However, Applicant was given a copy of the SF 86 with the FORM. His failure to
raise any inaccuracies about the SF 86 supports a logical inference that he responded
“No” to the relevant police record inquiries when he completed the electronically
submitted e-QIP. He has not asserted that he reported his felony conviction on his e-
QIP. While a negative response to question 23a does not necessarily prove the willful
intent required under AG ¶ 16(a), Applicant offered no explanation for his failure to
disclose his felony conviction. Especially given his prison sentence and current
probationary status, the evidence supports a reasonable finding of intentional
falsification.
About four months after he completed his e-QIP, Applicant was interviewed
about his criminal conduct by a government investigator. There is no indication that
Applicant was reluctant to discuss his conviction. He admitted someone had alerted
police to the fact that he was selling drugs and that he had been using cocaine himself
up to three times per week. While this effort at rectification is reasonably prompt, AG ¶
17(a) (“the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted”), also requires that it be before
confrontation. The purpose of the subject interview was to discuss Applicant’s criminal
conduct, so the government knew of his conviction before the interview. The likely
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source of the government’s information was the FBI record of November 8, 2006 (Item
7), showing that Applicant had been sentenced to six years in prison in 1990. It is not
clear whether Applicant volunteered the information up-front. Under the circumstances, I
am unable to fully apply AG ¶ 17(a). Moreover, Applicant’s recent denial of any
intentional falsification casts doubt about whether his representations can be relied on.
None of the other mitigating conditions are pertinent.
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 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 involvement with cocaine
included frequent use, purchase, and some sales of the drug to others. While felonious
criminal conduct reflected extremely poor judgment on his part, it occurred some 19
years ago. He showed some rehabilitation even during his incarceration in that he
volunteered for drug counseling, and he was granted work release little more than a
year into his six-year sentence. He was paroled early, and within five months of his
release, he started with his present employer in April 1992. There is no indication that
Applicant has been other than law-abiding, but concerns persist about his judgment,
reliability, and trustworthiness, because of his failure to disclose his felony conviction
when he applied for his security clearance.
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
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Subparagraph 1.a: For Applicant
Subparagraph 1.b: Withdrawn
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
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ELIZABETH M. MATCHINSKI
Administrative Judge