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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
                                                          )         ISCR Case No. 07-05437
SSN:                     )
)
Applicant for Security Clearance )
Appearances
For Government: Paul Delaney, Esquire, Department Counsel
For Applicant: Pro Se
                                                                            
______________
Decision
______________
MARSHALL, Jr., Arthur E., Administrative Judge:
Applicant completed a Questionnaire for Sensitive Positions, SF-86 Form, on
December 13, 2006. On October 24, 2007, the Defense Office of Hearings and Appeals
(DOHA) issued a Statement of Reasons (SOR) detailing security concerns under
Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). 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. 
In an undated response, Applicant acknowledged receipt of the SOR and
answered the SOR allegations in writing. On January 8, 2008, she was sent a letter
stating that her response was incomplete, requesting her to state whether she wished
to have a hearing on the matter. A January 22, 2008, response to the SOR was
submitted admitting the allegations with explanations and indicating Applicant’s
selection of a hearing before an Administrative Judge. DOHA received that request on
 Tr. 30.1
 Applicant remains unclear as to whether she was the only defendant afforded a court appointed attorney.2
 Tr. 39.3
 See., e.g., Tr. 50.4
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March 3, 2008, and the matter was assigned to me on March 5, 2008. Department
Counsel and Applicant agreed to an April 1, 2008, hearing date and a Notice of Hearing
was issued on March 17, 2008. Due to an administrative conflict, an Amended Notice of
Hearing was issued on March 27, 2008, moving the hearing to April 3, 2008.
The hearing took place as scheduled. Department Counsel submitted five
exhibits (Ex.). which were accepted into the record as Exs. 1-5 without objection.
Applicant submitted two exhibits, accepted as Exs. A-B without objection. No witnesses
were called. The transcript (Tr.) was received on April 10, 2008. Based upon a review of
the case file, exhibits, and testimony, security clearance is granted.
Findings of Fact
Applicant is a 28-year-old mail room worker who works for a defense contractor.
She has a high school diploma and briefly attended college. She has one child, an
eight-year-old daughter.
In the third grade, Applicant had been held back a year. Consequently, she
turned 18 while in high school, where most of her peers were minors. 1998 was a
difficult year for her. Her parents had separated and her father had passed away. On
March 21, 1998, Applicant and five or six of her girl friends from school went to a local
mall. One of her peers said “Hey. Let’s, you know, get a pair of jeans out of the store,
you know. I don’t think you can get in trouble . . . if you just get a pair – – a shirt or
something . . . .”  With that childish challenge waged, the girls entered a department1
store to execute the plan. Applicant chose to take a shirt, which she put on to wear.
Before they left the store, the students were escorted to security by a female security
guard. There, a male security guard joined the party to inventory the clothing the
students had attempted to steal. All the clothing involved totaled approximately $752 in
merchandise. The young ladies were cuffed and taken by van to a local police station.
At the station, charges were waged and Applicant was released to her mother.
About a month later, Applicant appeared in court. Each of the students was
accompanied by a parent, although Applicant was also accompanied by a court
appointed attorney.  Both the judge and the attorney explained the situation to all the2
defendants at the same time, but Applicant was very nervous and recalls very little of
the event.  She remembers discussion about expungement.  She does not remember3 4
anyone ever using the term “felony” to describe the charge to which the students would
 Tr. 39-40.5
 Applicant’s police record shows that she was found guilty of grand larceny (stealing clothing valued at $2006
or more), sentenced to two years in jail (suspended), and ordered to pay costs of approximately $750. See
Ex. 4.
 Tr. 40-41, 46.7
 Tr. 42.8
 Tr. 41-42.9
 Tr. 40-41.10
 Tr. 47.11
 Tr. 48.12
 Tr. 47-48.13
 Tr. 45-46.14
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plea guilty.  She remembers entering a guilty plea.  She did not think the charge or the5 6
conviction was a felony, only a charge that would be ultimately removed from her adult
record.  A formal two year sentence in jail was suspended, so she was relieved of7
serving jail time. She expressed her contrition and restitution was made. She resolved it
would be her only brush with the law and determined to move on with her life as a
“positive, productive person.”  She did not dwell on the event.8 9
Indeed, later, in successfully applying for positions of trust both as a bank teller
and as an employee of a federal agency, Applicant made no reference to the criminal
charge. The incident did not prove to be an issue or an obstacle in either job.
Consequently, her belief that the expungement made the entire incident a nullity not
worthy of reporting seemed confirmed and she kept the incident out of her mind.  10
When Applicant first applied for her present position, she was orally asked about
criminal activity in the past seven years. Although she thought the issue was otherwise
inapplicable because of the expungement, she denied such criminal activity. She did so
because seven years had passed and because she believed the incident, having been
expunged, was a non-issue.  When she subsequently completed her SF-86, she did so11
unaided.  She also noticed an emphasis on inquiries as to incidents in the past seven12
years, the same time frame mentioned when she first applied for the job.  Based on13
her understanding of the incident, her situation, and past experience in what was
needed for preemployment screening, she answered “no” to Question 23(a)'s inquiry as
to whether she had previously been charged or convicted of a felony. In so doing, she
was not deliberately withholding information, only answering the question as she
thought appropriate given the nature of the incident and the expungement.  In a14
subsequent oral interview, she described the incident. Eventually, she rephrased her
answer to the question to disclose the arrest, the conviction, and the circumstances.
 Tr. 54.15
 Ex. A (Co-W orker letter I).16
 Ex. B (Co-W orker letter II).17
 Ex. C (Manager letter).18
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In the intervening years between the arrest and her current security clearance
application, Applicant became committed to her resolve to move beyond the arrest. She
describes herself as “a changed person.”  She stresses her personal growth and15
maturity since her arrest. She completed high school. She had a baby. She is active
with her church. She found a college schedule and collegiate life incompatible with her
adult responsibilities as a mother and wage-earner. Instead, she chose to balance her
adult obligations maturely and successfully. One co-worker describes her as “honest,
caring of what’s right, and works hard, showing a high degree of professionalism in
every endeavor she embarks upon.” The co-worker continues by stating: “She is a quick
study and very loyal. [She] is an asset to any organization. . . .”  Another co-worker16
describes Applicant as “dependable and a joy to work with.”  Her manager describes17
her as “loyal, honest, and a very hard worker. I highly recommend her for a position of
trust.”18
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. Under AG ¶ 2(c), this 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
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).19
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).20
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).21
 Id.22
 Id.23
 Executive Order 10865 § 7.24
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Department Counsel. . . .”  The burden of proof is something less than a19
preponderance of evidence.  The ultimate burden of persuasion to obtain a favorable20
clearance decision is on the applicant.  21
 
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 access22
to sensitive information must be resolved in favor of protecting such sensitive
information.   The decision to deny an individual a security clearance is not necessarily23
a determination as to the loyalty of an applicant.  It is merely an indication that the24
applicant has not met the strict guidelines the President and the Secretary of Defense
have established for issuing a clearance.
Analysis
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 and Guideline E – Personal Conduct. 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 appropriate sections below.
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Guideline J – Criminal Conduct 
The concern regarding criminal conduct is that 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, charged with a felony, and convicted in 1998 for
the theft of clothing along with some high school peers. Consequently, as urged by the
Government, Criminal Conduct Disqualifying Condition (CC DC) AG ¶ 31(a) (a single
serious crime or multiple lesser offenses) applies. With a disqualifying condition thus
raised, it is Applicant’s burden to raise conditions in mitigation.
In 1998, Applicant had a difficult home life. Her parents’ marriage failed, they
separated, then her father passed away. Having been held back a grade in elementary
school, she was slightly older than her academic peers. When some of her high school
girlfriends dared each other to steal a piece of clothing, Applicant succumbed to the
peer pressure and joined in. Their senior year prank, however, was not a joke to the
store or the police. Together, they were caught, tried, and convicted. 
Over a decade later, Applicant is no longer an easily influenced school girl. She
is a grown, mature, woman who, at an early age, made the difficult choice to become
an independent, single, working mother. She purposefully pursued a course of
employment that permitted her to balance her financial needs with her maternal
obligations. As a result, she has earned the respect and trust of her manager and co-
workers while balancing her family life with church and social activities. There is no
evidence to suggest even the remotest possibility she would ever again succumb to
immature pressures or resort to childish antics. There is no reason to gauge the woman
she is today in 2008 on a youthful transgression from over a decade ago.
Consequently, Criminal Conduct Mitigating Conditions (CC MC) 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 ¶ 32(b) (the person was
pressured or coerced into committing the act and those pressures are no longer present
in the person’s life) apply. 
Additionally, aside from the passage of a decade and a great deal of maturation,
Applicant expressed her contrition and made restitution on the clothing article. She has
never again had a brush with the law. Indeed, she immediately began her own personal
rehabilitation when she purposefully resolved to never again find herself in such trouble.
As a result, she has led a life of successful achievement, devoid of  criminal conduct.
She has been a responsible mother and employee, and been active within her
community church. Such factors additionally give rise to CC MC AG ¶ 32(d) (there is
evidence of successful rehabilitation, including but not limited to the passage of time
without recurrence of criminal conduct, remorse or restitution, job training or high
education, good employment record, or constructive community involvement).
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Guideline E – Personal Conduct
Security concerns related to personal conduct arise because personal 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. Here, Applicant
answered “no” to an SF-86 question inquiring to whether she had ever been charged or
convicted of a felony. As urged by the Government, such facts could potentially give
rise to Personal Conduct Disqualifying Condition (PC DC) 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) and ¶ 16(b) (deliberately providing false or misleading information
concerning relevant facts to an employer, investigator, security officer, competent
medical authority, or other official government representative).
Applicant was a high school student when she was charged with the theft of
clothing along with her peers. It was a traumatic experience for her, as she appeared in
court with her mother. As a result, she remembers little of the incident. What she does
remember, however, is that all the female students appeared as a group before the
judge, that she did not have to serve time in jail, and that an explanation was given as
to how expungement worked. In short, only the payment of costs necessitated action,
everything else seemed waived. After becoming a mother and entering the workplace,
she sought and obtained employment as a bank teller and with a federal agency.
Knowing she was subject to some sort of screening for such positions, but also knowing
– or thinking – her arrest and conviction had been expunged, she did not mention the
incidents when she applied for those jobs. No further inquiries were ever made. As a
result, her interpretation of what transpired in 1998 was confirmed: her record had been
expunged and the incident was a non-issue. Similarly, when she denied a past charge
or conviction for a felony on her SF-86, Applicant did not actively attempt to conceal or
falsify. Rather, thinking the matter had been erased by the courts and was now a nullity.
The Government also points to Applicant’s inconsistency in explaining why she
did not note the 1998 incident on her SF-86: Was it because she forgot about the
incident? Was it because she thought it was expunged? Was it because she thought it
was not necessary to report the matter? It argues her inconsistency highlights itself as
recent misconduct involving active concealment and demands scrutiny of her credibility.
This apparent inconsistency, however, is not irreconcilable. Applicant explained that
she had purposefully put the incident out of her mind in her attempt to move on with her
life. She did so after concluding that her record would be expunged and the incident
reduced to a nullity. Her decision to do this seemed solid after gaining banking and
government jobs, both of which included some form of pre-employment screening. On
the stand, Applicant’s testimony was exceptionally credible. Given that credibility, in
conjunction with her level of education, her youth at the time, and her experience in
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subsequent years, her conclusion is highly plausible and gives no indication that her
past inconsistencies were the result of misconduct, rather than basic misunderstanding.
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 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, as well as the “whole person”
factors noted above. Applicant is an articulate and credible young woman. Her youthful
brush with the law inspired her to refocus her life and her belief that the incident was
expunged from her record gave her the feeling she could start anew. She is no longer
the high schooler who takes up risky challenges for the sake of a thrill or to join the
crowd. She is a respected employee and responsible single mother who demonstrates
no qualities that might suggest she would ever again find herself on the wrong side of
the law. 
When Applicant was adjudicated along with her younger peers, expungement
was duly explained to the group. Therefore, she was left with the impression her record
would be wiped clean and that the incident would be deemed a nullity. Consequently, it
was a learning experience best put behind her and safely forgotten. When she
eventually obtained employment with the federal government and as a bank teller, the
incident she believed to be expunged was not disclosed, the issue did not arise, and
her belief her record had been wiped clean validated. Consequently, she confirmed her
understanding that her record had been expunged. Not illogically, she subsequently
answered “no” on the SF-86 question regarding the same issue. Nothing in her highly
credible testimony shows that this was anything more than a lack of understanding of
how the law was applied to her during the group trial and discussion, reenforced by
subsequent job screenings where the issue was never raised. Applicant’s answer may
have been in error, and, as expungement is meant to do, it may have worked to her
advantage. There is no evidence, however, that her answer was devised to mislead.
Over a decade has past since she was arrested and convicted of theft. She is
contrite and embarrassed over the incident, There is substantial evidence of
rehabilitation during the interceding period of time. There is scant risk she would ever
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put herself in a similar position again. As a high school student, she was ill-advised of
the repercussions of her actions and how the consequences differed for her, as
opposed to her juvenile peers. Nothing in her life experience intimated that her
interpretation of how her record read was incorrect; indeed, her experience was that the
incident must have been erased or it would have been raised previously. Her testimony
on this matter was credible. While some of her statements indicated some degree of
inconsistency over the years, none of those statements were markedly irreconcilable
with her testimony as a whole. Applicant has met her burden in mitigating both criminal
conduct and personal conduct security concerns. I conclude it is clearly consistent with
national security to grant Applicant a security clearance. Clearance is granted. 
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
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance. Clearance is granted.
__________________________
ARTHUR E. MARSHALL, JR.
Administrative Judge