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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )     ISCR Case No. 06-21536
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Daniel F. Crowley, Esq., Department Counsel
For Applicant: John W. Bonney, Esq.
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on June 2, 2005. On February 12, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing the
security concerns under Guideline E that provide the basis for its decision to deny
Applicant access to classified information. 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 22, 2008. He answered
the SOR in writing on March 5, 2008, and requested a decision without a hearing. On
April 7, 2008, the government submitted a File of Relevant Material (FORM) consisting
of eight exhibits (Items 1-8). DOHA forwarded a copy of the FORM to Applicant and
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instructed him to respond within 30 days of receipt. On May 23, 2008, Applicant
submitted his rebuttal to the FORM consisting of an affidavit from his spouse (Ex. A), to
which the government did not object. On June 9, 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 and
Applicant’s response, eligibility for access to classified information is granted.
Findings of Fact
DOHA submits under Guideline E, personal conduct, that Applicant deliberately
falsified his June 2, 2005, e-QIP by failing to disclose in response to question 21 that he
had consulted with two health care providers in spring 2005 about a mental health
related issue (SOR ¶ 1.a) and that he had falsified material facts to an investigator in
January 2006 when he indicated that in August 2005 he had been evaluated by a
counselor after his spouse complained to police that he wanted to hurt himself, but had
not sought out any mental health counseling. Applicant denied the allegations. After
consideration of the evidence of record, I make the following findings of fact.
Applicant is a 49-year-old electronics field engineer, who has worked for his
current employer, a defense contractor, since September 1998 (Item 5). He has been
married to his spouse since March 1990, and they have one adopted daughter who was
born in March 2001 (Item 5, Item 7).
Applicant served on active duty in the United States Navy from April 1978 to April
1998 (Item 6). He held various levels of security clearance up to top secret (Item 8). In
December 1984, he was awarded non-judicial punishment for possession of marijuana
(Item 4, Item 5, Item 8) while he held a confidential-level security clearance (Item 8). He
had a history of marijuana use that intensified when he was in the service but he ceased
his drug use after the non-judicial punishment (Item 8). In about 1987, he was briefly
hospitalized after becoming despondent on the breakup of a relationship (Item 7). On a
DoD Personnel Security Questionnaire (DD Form 398) completed on October 26, 1987,
Applicant checked off “Yes” to question 20d [“Have you ever been a patient (whether or
not formally committed) in any institution primarily devoted to the treatment of marital,
emotional, psychological, or personality disorders?”] but provided no detail. He listed his
non-judicial punishment for marijuana possession in response to questions 21a (any
arrests or charges) and 21b (any convictions) (Item 4).
Applicant’s performance ratings suffered in the short term following his non-
judicial punishment, but he restored his good standing in the military (Item 8) and was
awarded several medals and commendations for his active duty service, including two
Navy and Marine Corps Achievement Medals, three meritorious unit commendations,
three good conduct medals, Navy and Armed Forces Expeditionary Medals, NATO and
National Defense Service Medals, and a Southwest Asia Service Medal. In April 1998,
he was granted an honorable discharge from active duty at the rank of petty officer first
class after 20 years (Item 6). After he retired from active duty, Applicant worked as an
The credentials of this mental health professional are not documented in the record other than he is referred1
to as “Dr. [name omitted].” It is not clear whether he is a duly qualified psychiatrist, although he is a medical
professional since he prescribed an antidepressant for Applicant (see Item 8).
Applicant told a government investigator that his sessions with the mental health professional were in the2
spring 2005 (Item 8). Yet, his spouse indicated that she began seeing the marriage counselor in April or May
2005 (Ex. A). Applicant’s sessions with the physician were at the referral of the marriage counselor, so they
likely  would have been in late spring at the earliest.  Neither the government nor the Applicant presented any
proof as to the specific dates of his two sessions. Conceivably, they could have occurred after he completed
his e-QIP although Applicant never raised it as a defense to the government’s allegation of falsification.
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electronics technician installer for a local federal contractor from May 1998 until he
started with his present employer in September 1998 (Item 5).
Sometime in spring 2005, Applicant and his spouse began experiencing marital
problems around child-rearing issues. His spouse began to see a marriage counselor
within a psychotherapy practice in April or May 2005 (Ex. A). Believing it would help
their marriage, she told Applicant that she would leave him if he did not attend also.
Applicant went to two sessions with the marriage counselor sometime that spring. At the
therapist’s referral, Applicant also consulted with a mental health professional on two
occasions.  (Item 7, Item 8, Ex. A).  Applicant took a prescribed antidepressant for only1
two days as he did not like its effect on him (Item 8).
On June 2, 2005, Applicant completed an e-QIP on which he responded
negatively to question 21, “In the last 7 years, have you consulted with a mental health
professional (psychiatrist, psychologist, counselor, etc.) or have you consulted with
another health care provider about a mental health related condition?”.  Applicant2
disclosed on his e-QIP that he used marijuana in the service from 1982 to 1984 while he
held a security clearance, and that he had been awarded non-judicial punishment in
December 1984 (Item 5).
In July or August 2005, Applicant argued with his spouse. After he told her that
she would like it better if he was not around, his spouse called the police and reported
Applicant had expressed the desire to harm himself. The police called in a counselor
from the community services board who determined he was fine. Nothing further came
of it. Applicant was not required to make any follow-up appointments with the counselor,
and was not prescribed any medications (Item 8).
On January 4, 2006, Applicant was interviewed by a government investigator to
verify the information on his e-QIP. Applicant volunteered that he had been evaluated at
his home by a community services’ counselor in July or August 2005 after his spouse
expressed concern to the police that he might harm himself. Applicant related he had
not sought mental health related treatment on other occasions (Item 8).
On April 21, 2006, Applicant was contacted to obtain information about his
previously undisclosed sessions with the marital counselor. Applicant explained that his
spouse began going to a psychotherapy practice on the advice of her primary care
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physician, and that at some point she told him she would leave him if he did not go also.
Martial issues centered around the rearing of their daughter. Applicant indicated that in
spring 2005, he had two sessions with the marital counselor and two consults with a
doctor on the referral of the marriage therapist. Applicant added he was prescribed an
antidepressant that he took for only two days. When asked why he had not disclosed
these sessions on his e-QIP or during his previous subject interview, Applicant
responded he had forgotten about them (Item 8).
On July 30, 2007, Applicant underwent a mental health evaluation by a DoD
approved psychiatrist at DOHA’s request. Applicant told the psychiatric consultant that
he had been hospitalized briefly in 1987 after becoming despondent over the breakup of
a relationship, and had “brief contact” with a mental health professional “as a result of
marital issues, long since resolved.” The psychiatric consultant opined that Applicant’s
judgment and reliability are good and likely to remain so (Item 7).
In response to the SOR allegations that he had deliberately concealed his mental
health counseling, Applicant indicated in March 2008 his sessions were for marital
counseling only and not considered consultation for a mental health condition (Item 2).
On May 22, 2008, Applicant’s spouse signed an affidavit to the effect that Applicant
visited with the marriage counselor at her request and their benefit, and that he had no
other interaction with counselors or psychiatrists except for the two occasions with the
doctor on the referral of the marriage counselor (Ex. A).
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 ¶
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.
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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 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.
Applicant checked “No” in response to question 21 on his e-QIP concerning
whether he had consulted with a mental health professional or another health care
provider about a mental health related condition. He also denied to a government
investigator in January 2006 that he had sought mental health counseling when the
evidence shows in late spring 2005 he had two sessions each with a marriage
counselor and with a doctor who prescribed an antidepressant for him. Applicant has
consistently denied that he intended to conceal that information, placing the burden on
the government to establish the willful intent required under disqualifying condition 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
Included in Item 8 is an “investigator’s note” indicating that Applicant had been contacted on April 21, 2006,3
to obtain information regarding the unlisted counseling with the marriage counselor. It is not clear that this was
an in-person contact or that Applicant had any time to reflect on his responses. 
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responsibilities,” and AG ¶ 16(b), “deliberately providing false or misleading information
concerning relevant facts to any employer, investigator, security official, competent
medical authority, or other official government representative.” 
In April 2006, Applicant told a government investigator that he had not disclosed
the counseling sessions on his e-QIP or during his interview of January 2006 because
he had forgotten about them. The logical inference therefrom is that Applicant would
have listed the counseling sessions had he recalled them. Yet, in response to the
falsification allegations two years later, Applicant indicated the sessions were for marital
counseling and not sought out by him, inferring that disclosure was not required. A
conclusion of deliberate falsification could warrant based on the inconsistency in his
explanations, but they must be evaluated in context and in light of the record as a
whole.  Based on the record before me, I am not convinced of the government’s3
position that Applicant’s failure to disclose the consultations “was deliberate and
motivated by a desire to steer the security investigation away from his psychological
condition” (see FORM, p. 5). 
The DoD’s psychiatric evaluation indicates that Applicant is “free of psychiatric
labels,” so the alleged motive is not established. There is no proof of an underlying
psychological condition that Applicant would have wanted to conceal. While he
apparently had been hospitalized in the past and diagnosed with a “Character Disorder,
NOS” (Item 7), Applicant did not conceal that hospitalization when he completed his DD
Form 398 in October 1987. He responded affirmatively at that time to question 20d.
“Have you ever been a patient (whether or not formally committed) in any institution
primarily devoted to the treatment of marital, emotional, psychological, or personality
disorders?” (Item 4). More recently, during his interview with the government
investigator in January 2006, Applicant “volunteered” that he had been evaluated by a
community services’ counselor at the request of the police following an argument
between him and his spouse in July or August 2005. Applicant is not likely to have
volunteered that information if he wanted to steer the investigation away from mental
health issues.
The evidence fails to substantiate that Applicant considered his counseling in
2005 to be other than marital-related. The DoD psychiatric consultant indicated in his
report of July 30, 2007, that Applicant had “[a] brief contact with a mental health
professional . . . as a result of marital issues, long since resolved” (Item 7). The
government submits that even if Applicant regarded his counseling as marriage therapy,
Applicant was still required to respond “Yes” to question 21 on the e-QIP because the
marriage therapist and physician are mental health professionals. Yet, the instructions
on the form specifically exclude from the reporting requirement treatment information
that involved only marital, family, or grief counseling, not related to violence by him.
Given those instructions, Applicant could reasonably conclude that his counseling did
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not fall within the scope of question 21. Even the two sessions with the physician were
at the referral of the marriage therapist and Applicant could reasonably have considered
them part of his marriage therapy since he had no ongoing relationship with the
physician. I am not convinced that Applicant appreciated the distinction between his
marriage counseling sessions and those with the physician who prescribed an
antidepressant for him.
To prove Applicant’s alleged lack of candor during his January 2006 interview,
the government offered an investigator’s report of Applicant’s unsworn declaration of
that date. Applicant affirmed in November 2007 that the report of investigator was
inaccurate only to the extent it mis-stated the first name of his deceased father-in-law so
he does not dispute that he told the agent he had not sought out any mental health
treatment (“SUBJECT HAS NOT SOUGHT MENTAL HEALTH RELATED TREATMENT
ON ANY OTHER OCCASIONS.” Item 8). The statement was not shown to be false,
since Applicant did not seek out the counseling in spring 2005 for a perceived mental
health issue. He complied with his spouse’s request in order to save his marriage.
Applicant exhibited no reluctance to discuss his counseling when contacted in April
2006. The record as a whole does not warrant a finding of willful omission or
concealment, so neither AG ¶ 16(a) or AG ¶ 16(b) apply.
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 has a history of candid
disclosure, including of previous drug use, a drug-related non-judicial punishment, and
even hospitalization for a mental health issue. His failure to disclose four therapy
sessions (two with a marriage therapist and two with a medical professional) was not
with intent to conceal or deceive. His subsequent disclosures to a government
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investigator of the details of this counseling as well as of a July/August 2005 mental
status evaluation show his representations can be relied on, and a recent evaluation by
a DoD psychiatric consultant confirms he does not suffer from any psychological
condition that could impact his judgment, reliability, or trustworthiness.
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 E: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Conclusion
In light of all of the circumstances, it is clearly consistent with the national interest
to grant Applicant eligibility for a security clearance. Eligibility for access to classified
information is granted.
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ELIZABETH M. MATCHINSKI
Administrative Judge