1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 07-12936
SSN: --------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Esquire, Department Counsel
For Applicant: Pro se
July 28, 2008
______________
DECISION
______________
ROSS, Wilford H., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on July 17, 2006.
(Government Exhibit 1.)  On January 14, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns
under Guidelines E and J 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 January 28, 2008.  Pursuant to
Paragraph E3.1.8 of Enclosure 3 of the Directive, the Department Counsel requested a
hearing before an Administrative Judge.  Department Counsel was prepared to proceed
on March 14, 2008.  I received the case assignment on March 20, 2008.  DOHA issued
a notice of hearing on April 14, 2008, and I convened the hearing as scheduled on May
2
5, 2008. The Government called one witness and offered Government Exhibits 1
through 6, which were received without objection. Applicant testified on his own behalf
and submitted Applicant’s Exhibit A, without objection. DOHA received the transcript of
the hearing on May 15, 2008.  The record closed on that date. Based upon a review of
the case file, pleadings, exhibits, and testimony, eligibility for access to classified
information is denied.
Findings of Fact
The Applicant is 30 and married.  He is employed by a defense contractor and
seeks to obtain a security clearance in connection with his employment.
Guideline J - Criminal Conduct
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has engaged in criminal conduct.
Guideline E - Personal Conduct
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has failed to provide truthful and candid answers during the
clearance screening process.
The Applicant was involved in a serious crime on October 1, 2005.  On that date,
the Applicant was attending a wedding rehearsal party with several relatives.  This party
went on for several hours and the Applicant became intoxicated.  Early in the morning,
the Applicant, and two other members of the wedding party, beat up a man who had
been involved in an earlier incident with the family.  The victim was seriously injured
during the beating.  (Government Exhibit 2 at pages 3-4, and Government Exhibits 4
and 5; Transcript at 44-45.)
The Applicant was subsequently arrested by the police and charged with Battery
with Substantial Bodily Harm, a felony.  On November 13, 2006, he plead guilty and
was sentenced to four years probation with conditions requiring he attend various types
of counseling, to pay court fees of $300 and to pay restitution to the victim of
$15,744.34.  He is currently on probation until November 2010.  At the end of two years,
which will occur in November 2008, the Applicant can petition to have his probation
ended early because he has paid the restitution and completed all of the required
counseling.  (Transcript at 50.)
At the time of the incident the Applicant was extremely intoxicated and does not
have any clear memory of the fight.  In May 2007 he was interviewed by an investigator
for the Department of Defense.  In that interview, based on his knowledge at the time,
the Applicant stated that he struck the victim twice while the victim was trying to get up.
(Government Exhibit 2 at 3-4.)  In fact, as a surveillance video shows, the victim was
unconscious and the Applicant hit him several times in the face.  The Applicant has
3
seen the video, confirmed what really happened, and is deeply regretful both for his
conduct and for his unintentional misleading of the Defense Department.  The police
report says that the Applicant hit the victim with a bottle, but the Applicant cannot
confirm that fact based on the video.  (Transcript at 45-47, 57-59.)
In addition to the felony conviction, the Applicant had a minor confrontation which
involved the police while he was in the Army in the early 1990s.  (Transcript at 40-42.)
In addition, the Applicant admits that, “My weakness is my family.  I love my family, and
anytime anything happens to them, it bothers me.  It hurts me, and they [Anger
Management Class] help me deal with that.”  (Transcript at 53.)
Mitigation
The Applicant submitted documentary evidence showing that he is a highly
respected person and employee.  (Government Exhibit 2 at 7-20, Applicant’s Exhibit A.)
His former supervisor states, “[The Applicant] performed his duties far above and
beyond the standard.”  (Government Exhibit 2 at 17.)  (See Government Exhibit 2 at 10,
14, 15, 17, 18 and 19.)
Several of the letters are from his relatives, including his wife.  They show that
the Applicant is a beloved husband and father.  (See Government Exhibit 2 at 7, 8, 9,
11, 12, 13 and 16.)  
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
4
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
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 a major criminal incident in 2005, which resulted in
the victim being seriously injured.  By his own admission, and as reflected by his guilty
plea to felony Battery with Substantial Bodily Harm, the Applicant was a prime mover in
this act.  AG ¶ 31(a) applies to this case, stating that a disqualifying condition is “a
single serious crime of multiple lesser offenses.”
AG ¶ 31(d) states that it can be disqualifying if the “individual is currently on
parole or probation.”  The Applicant’s probation is not due to expire until November
5
2010 and he cannot petition for early release until November 2008.  This disqualifying
condition also applies to this case.
Two of the mitigating conditions also may apply and have been considered.
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(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.” 
This is a close case.  The Applicant is a sympathetic young man, who made a
very serious mistake.  He is regretful and remorseful over his conduct.  However, it has
not yet been three years since the incident and he has only been on probation less than
two years.  In addition, there is some evidence that this is not an isolated incident and
that the Applicant has anger management issues.  Under the particular circumstances
of this case, at this point in time, using the clearly consistent standard, I must find this
allegation against the Applicant.   
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.
I have examined the record and I find that the Applicant did not intentionally
falsify material facts during an interview with a Department of Defense investigator in
May 2007.  The Applicant freely admits that he was seriously intoxicated on the night of
the incident and has little direct knowledge of the event.  Only after receiving a copy of
the surveillance video was the Applicant able to fully understand what happened on that
evening.  Since his conduct was not intentional, none of the disqualifying conditions
apply.  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
of the conduct; (2) the circumstances surrounding the conduct, to include
6
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,
highly respected, professional person who is attempting to overcome his earlier criminal
conviction. 
Under AG ¶ 2(a)(3), the conduct occurred recently, in 2005.  He has been on
probation less than two years.  He has taken several classes in Anger Management and
other issues.  However, given the relatively short time since the event, I cannot find that
there have been permanent behavioral changes under AG ¶ 2(a)(6).  Accordingly, at the
present time, I cannot find that the likelihood of recurrence is close to nil (AG ¶2(a)9)). 
Overall, the record evidence leaves me with questions and/or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude the Applicant has not mitigated the security concerns arising from his criminal
conduct.  The Applicant has come a long way.  As stated earlier, this is a close case.
He may well be eligible for a clearance in the future.  He is not now.  
On balance, it is concluded that the Applicant has not successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a finding against the Applicant as to the factual and conclusionary
allegations expressed in Paragraph 1 of the Government's Statement of Reasons.  As
stated above, Paragraph 2 is found for the Applicant.
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: AGAINST THE APPLICANT
Subparagraph 1.a: Against the Applicant
Paragraph 2, Guideline E: FOR THE APPLICANT
Subparagraph 2.a: For the Applicant
7
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.
                                              
_________________
WILFORD H. ROSS
Administrative Judge