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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 07-12022
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Daniel Crowley, Esquire, Department Counsel
For Applicant: Henry L. Young, Union Representative
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Decision
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LYNCH, Noreen A., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on November 9,
2006. On February 19, 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 February 28, 2008. He answered
the SOR in writing and requested a hearing before an Administrative Judge. I received
the case assignment on April 8, 2008. DOHA issued a notice of hearing on April 14,
2008, and I convened the hearing on May 7, 2008. The Government offered Exhibits
(GE) 1-3, which were received without objection. Applicant testified on his own behalf.
He submitted Exhibits (AE) A-F, without objection. DOHA received the transcript of the
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hearing (Tr) on May 15, 2008. Based upon a review of the case file, eligibility for access
to classified information is granted.
Findings of Fact
In his Answer to the SOR, dated February 28, 2008, Applicant admitted the
factual allegations in ¶¶ 1.a-1.m of the SOR. He also admitted the factual allegations in
¶¶ 2.a 2.b of the SOR with the explanation that it was not a deliberate omission.
Applicant provided additional information to support his request for eligibility for a
security clearance. 
Applicant is a 49-year-old employee of a defense contractor. He graduated from .
High school in 1980. After high school, he began work with his current employer. He
has been employed with them for 30 years. Applicant married in 1985 but his marriage
ended in divorce in 1992 (Tr. 57). He has one child as a result of that marriage. He is
father to another child from another relationship. He is currently single. He holds a
security clearance (GE 1).
Applicant had a troubled marriage. He and his wife argued violently. In March
1985, during his marriage, Applicant was arrested and charged with four counts of
misdemeanor assault, threats to kill, and pointing or brandishing a firearm. His wife went
to the police department and sought an arrest warrant for Applicant. Applicant admitted
that the charge was filed but he believes he was innocent. He claims his attorney
handled the case and told him not to worry about it (Tr 24).
On August 10, 1986, Applicant was arrested and charged with felony larceny. He
does not recall the incident but knows the charge was dismissed and his attorney
handled the case (T. 26). A few days later on August 18, 1986, Applicant was charged
with felony abduction and felony use of a firearm. He sais his wife brought the charge
against him. He believed he did not appear in court. He recalls no details about the case
(Tr. 27).
On July 30, 1990, Applicant was charged with misdemeanor destruction of
private property, felony larceny and misdemeanor assault. The assault charge was nolle
prossed. Applicant has no details about this except that his lawyer handled the case.
On June 20, 1992, Applicant was charged with misdemeanor assault. He was
convicted (AE A). This incident is one of the times that his wife filed charges against him
because she wanted him to lose his job. According to Applicant his wife also wanted to
get custody of their son when they divorced. Thus, she made up these charges (Tr.29).
On March 4, 1995, Applicant was charged with a misdemeanor obstruction of
justice. He was convicted of misdemeanor disorderly conduct. He stated at the hearing
that he was guilty of this charge (Tr. 30).
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In 1998, Applicant was arrested twice. In August of that year he was living with
his girlfriend. According to Applicant she wanted him to sign the title to his car over to
her. He did so. In September, he was charged with two counts of misdemeanor assault
and battery. The charges were nolle prossed. Applicant stated that both incidents were
the result of false charges brought against him by his girlfriend. Again, he stated that his
attorney handled the cases (Tr. 32).
On May 14, 1999, Applicant was charged with felony breaking and entering with
intent to commit a felony. This charge was nolle prossed. Applicant knows that this was
related to his former girlfriend but he has no other details. Again, he stated this was
taken care of by his attorney (Tr. 33).
On July 12, 1999, Applicant was charged with felony burglary and misdemeanor
assault and battery-family member. The burglary charge was nolle prossed and the
remaining charge was dismissed. Applicant does not remember if he appeared in court
(Tr. 34). 
On July 27, 1999, Applicant was charged with felony grand larceny. The charge
was nolle prossed. Applicant did not appear in court (Tr. 35). This incident is also
related to his girlfriend who wanted her name on his car. Applicant has a new girlfriend
but he lives alone now.
On July 4, 2003, Applicant was charged with misdemeanor possession of
marijuana. The charge was dismissed. Applicant had a glass jar in his backyard with a
leafy green substance in it. He pled guilty to the charge. He was given a year probation. 
On November 9, 2006, Applicant completed his security clearance application. In
section 23 - police record, Applicant listed his pending charge for the possession of
marijuana. He did not list the above referenced felony convictions or charges. Applicant
claimed he did not know that he had a criminal record. He believed because they were
dismissed or nolle prossed that they were not on his record. He also stated that he had
forgotten about the charges from his marriage. He took leave from work went to the
court recently to find his records. He now understands what charges and convictions he
has on the FBI record. He explained that because his wife had filed so many complaints
and the fact that his lawyer took care of everything, he had no records or real memory
of all the 1980 and 1990 incidents.  
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.
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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,
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.”
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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(b), A allegations or probation@ may raise security
concerns. As noted above, Applicant was arrested and charged with a number of
incidents over a span of 20  years. He has two misdemeanor convictions for assault and
disorderly conduct. 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 criminal conduct. 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 criminal conduct occurred over a span of more than 20 years.
His last charge was in 2003. However, most of the charges were dismissed. His last
conviction was in March 1995. The repeated incidents do create some doubt about
Applicant’s judgment. This potentially mitigating condition is not a factor for
consideration in this case. 
Under AG & 30(d), it may be mitigating where A 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.” As noted above, Applicant
has been employed since 1980 with his employer. He has no recorded disciplinary
actions. He has held a security clearance for more than 20 years. He has not had any
incidents in five years. I find this potentially mitigating condition applys 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
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qualifications, award benefits or status, determine security eligibility or
trustworthiness or award fiduciary responsibilities.
Similarly, under AG ¶ 16(d):
credible adverse information that is not explicitly covered under any other
guideline and may not be sufficient by itself for an adverse determination, but
which, when combined with all available information 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. This includes but is not limited to consideration of: (1) untrustworthy
or unreliable behavior....
Applicant was credible in his testimony that he did not understand that all the
charges that were dismissed over the years were on a criminal record. He had an
attorney take care of the many complaint charges and arrest warrants from his first
marriage. Many times he did not appear in court. In addition, Applicant testified that his
present girlfriend filled out the security form for him because he needed help with the
completion. I do not find that Applicant intentionally falsified his SF 86 security
clearance application.  
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.” This disqualifying condition is not a factor for consideration
because Applicant revealed the incidents during his investigation in 2007.
Paragraph 17 lists conditions that could mitigate security concerns. Specifically,
AG ¶ 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” is a factor for consideration in this case. Moreover, AG ¶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 apply. Thus, AG 17(e) “the individual has taken positive steps to
reduce or eliminate vulnerability to exploitation, manipulation, or duress” is a factor for
consideration. He has mitigated any personal conduct concerns through his recent
actions and behavior. 
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
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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. He
has been employed since 1980 with his current employer. He has no recorded
disciplinary actions. He is a loyal employee. He has held a security clearance during the
term of his employment (almost 30 years) with no difficulties.
The numerous criminal charges listed over the years were either dismissed or
nolle prossed. Applicant does have two misdemeanor convictions but the last one was
in 1995. Applicant listed a 2003 pending charge for possession of marijuana. That
charge was also dismissed.
 
Overall, the record evidence and whole person analysis leaves me without
questions and doubts as to Applicant’s eligibility and suitability for a security clearance.
For all these reasons, I conclude Applicant has mitigated the security concerns arising
from his personal conduct and criminal 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: FOR APPLICANT
Subparagraph 1.a-m: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a-b: For 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 national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
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NOREEN A. LYNCH
Administrative Judge