DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 07-18622
SSN: ------------------ )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Department Counsel
For Applicant: Pro Se
October 30, 2008
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Questionnaire for National Security Positions (e-QIP), on
February 28, 2007. On June 30 2008, the Defense Office of Hearings and Appeals
(DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under
Guideline F 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 answered the SOR in writing on July 21, 2008, and requested a
hearing before an Administrative Judge. This Administrative Judge was assigned the
matter on August 27, 2008.  A notice of hearing was issued on September 12, 2008,
scheduling the hearing on October 7, 2008.  The Government offered five exhibits,
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referred to as Government Exhibits 1 through 5, which were received without objection.
Applicant offered seven exhibits, referred to as Applicant’s Exhibits A through G, without
objection and testified on his own behalf.  DOHA received the transcript of the hearing
(Tr.) on October 16, 2008.  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 53 years old and has a Bachelor’s Degree in Business
Management.  He is employed by a defense contractor as a General Maintenance
Person, and is applying for a security clearance in connection with his employment.
Paragraph 1 (Guideline J - Criminal Conduct).  The Government alleges that the
Applicant is ineligible for clearance because he engaged in criminal conduct.
The Applicant was arrested on or about August 16, 2006, and was charged with
(1) Battery and (2) Criminal Threats.  The Applicant explained that he learned from his
excessive telephone bills that his wife had been text messaging a man who lived out of
state.  One evening while she was filing some papers or arranging something on the
floor, he asked her about it.  She refused to answer so he bent down and grabbed her
earlobe between his thumb and forefinger.  She screamed and he let go.  Law
enforcement arrived and the Applicant was arrested.  He was held in jail for 12 hours
and was served with a Temporary Restraining Order prohibiting him from going near his
wife.  Applicant stayed at a friends house.  The charges were ultimately rejected by the
District Attorney.  The Applicant believes that his wife dropped the charges.    
Shortly after this incident, the Applicant learned that his wife had taken
$15,000.00 out of their home equity line of credit without telling him.  (Tr. p. 40).  She
told him that she loaned $9,000.00 to a friend to buy a car and she spent the other
$6,000.00 on miscellaneous items.  The Applicant’s wife was not employed outside of
the home.  He tried to encourage her to look for work because he was feeling the
financial strain of working seven days a week with no social life to support the family
and his wife’s lifestyle, but she did not want to work.  He stated that she pretended to
look for work but never found anything suitable.  (Tr. p. 58).  She wanted only certain
positions that paid a certain amount and nothing less.  (Tr. p. 59).     
On or about April 28, 2007, the Applicant was arrested again, this time he was
charged with (1) Assault with a Deadly Weapon/Instrument, and (2) Exhibit Deadly
Weapon other than Firearm.  (Government Exhibit 2).  The Applicant explained that he
had returned from a trip to visit his sister whose family was more functional.  He arrived
at his home and became very depressed.  He saw that the house and the yard were a
complete mess, the pool was dirty, there was dog mess in the yard, the house was
cluttered with trash.  He became so frustrated that he had a melt down.  Anything that
was his had to be placed in the garage, so he went to get his things out and brought
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them into the house.  He started yelling profanities and admits that he may have said
that he was going to kill them.  He also admits going to the kitchen, picking up two
knives and making a slashing motion across his throat with them.  He was found guilty
of Count (1), and was sentenced to 48 months in jail, with all except two days
suspended, (with the remainder of his term to be served on probation), to perform 20
days of community service, pay fines/fee of approximately $530.00, and was ordered to
stay away from the victim, and to complete a 52 week Domestic Violence Counseling
Program.  Count 2 was dismissed.  Presently, the Applicant has completed the
community service requirement and paid the fine imposed by the court.  (Applicant’s
Exhibit E).  He has completed 31 of the 52 weeks of the Domestic Violence counseling
program and his probationary period will be complete in 2012.  (Applicant’s Exhibit A).
The Applicant states that his attorney who represented him in April 2007
indicated that through his investigation, he has learned that the Applicant’s wife was
sending resumes to Massachusetts in 2007 looking for employment.  (Tr. p. 62).
The Applicant subsequently filed for divorce from his wife.  (Tr. p. 51).  He is
scheduled to pay child and spousal support in the amount of $480.00 per week.  (Tr. p.
55).  He has not seen his daughter for a year and a half because she does not want to
see him.  (Tr. pp. 56-57).
A letter of recommendation from the Applicant’s Plant Senior Manager indicates
that the Applicant’s work ethic, output and work product is excellent.  He has worked
hard to consistently improve himself, and he is considered to be a valuable asset to the
company.  (Applicant’s Exhibit B).
Excerpts from the Applicant’s military records indicate that he was an asset to the
United States Navy.  Among other commendations, he received the Humanitarian
Service Medal with one bronze star and was honorable discharged.  (Applicant’s
Exhibits C and D).   
POLICIES
Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies
divided into "Disqualifying Factors" and "Mitigating Factors."  The following Disqualifying
Factors and Mitigating Factors are found to be applicable in this case:
Guideline J (Criminal Conduct)
30.  The Concern.  Criminal activity creates a 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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Conditions that could raise a security concern:
31.(a) a single serious crime or multiple offenses;
31.(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted;
Conditions that could mitigate security concerns:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 16-17,  in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
 a.  The nature and seriousness of the conduct and surrounding circumstances
b.  The circumstances surrounding the conduct, to include knowledgeable
participation
 c.  The frequency and recency of the conduct
d.  The individual’s age and maturity at the time of the conduct
e.  The voluntariness of participation
f.  The presence or absence of rehabilitation and other pertinent behavior
changes
g.  The motivation for the conduct 
h. The potential for pressure, coercion, exploitation or duress
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal characteristics
and conduct which are reasonably related to the ultimate question, posed in Section 2
of Executive Order 10865, of whether it is “clearly consistent with the national interest”
to grant an Applicant’s request for access to classified information.
The DoD Directive states, “The adjudicative process is an examination of a sufficient
period of a person’s life to make an affirmative determination that the person is an
acceptable security risk.  Eligibility for access to classified information is predicted upon
the individual meeting these personnel security guidelines.  The adjudicative process is
the careful weighing of a number of variables known as the whole person concept.
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Available, reliable information about the person, past and present, favorable and
unfavorable should be considered in reaching a determination.” The Administrative
Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record.  The Judge cannot draw inferences or conclusions
based on evidence which is speculative or conjectural in nature.  Finally, as emphasized
by President Eisenhower in 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.”
CONCLUSIONS
In the defense industry, the security of classified industrial secrets is entrusted to
civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week.  The Government is therefore
appropriately concerned when available information indicates that an Applicant for
clearance may be involved in criminal conduct that demonstrates poor judgment or
unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s conduct and the
continued holding of a security clearance.  If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case.  The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a security clearance.
In this case the Government has met its initial burden of proving that the
Applicant has  engaged in criminal conduct (Guideline J). The totality of this evidence
indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant.
Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus
or connection with him security clearance eligibility.
Considering all of the evidence, the Applicant has introduced persuasive
evidence in rebuttal, explanation or mitigation that is sufficient to overcome the
Government's case under Guideline J of the SOR.
The evidence shows that the Applicant was arrested in August 2006, for Battery
and Criminal Threats, and in April 2007, for Assault with a Deadly Weapon other than a
Firearm.  Both arrests are recent, as they occurred within the last two years.  Sufficient
rehabilitation has not been shown.  Under Guideline J, Criminal Conduct, Disqualifying
Conditions, 31.(a) a single serious crime or multiple offenses and 31.(c) allegation or
admission of criminal conduct, regardless of whether the person was formally charged,
formally prosecuted or convicted apply.  None of the Mitigation Conditions are
applicable.  The Applicant is still in the process of completing the sentencing
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requirements imposed by the court as a result of his most recent conviction.  He will
remain on probation until 2012.
I have also considered the “whole person concept” in evaluating the Applicant’s
eligibility for access to classified information.  It is noted that the Applicant has worked
for the same defense contractor for over 17 years, and he has never received a security
violation.  However, he allowed himself to stay in an abusive relationship that ultimately
caused him to become explosive, and he did some things that he should not have.
Whatever the case, his criminal conduct is not justified.  Under the particular facts of this
case, the totality of the conduct set forth under all of the guidelines viewed as a whole,
support a whole person assessment of poor judgement, untrustworthiness, unreliability,
a lack of candor, an unwillingness to comply with rules and regulations, or other
characteristics indicating that the person may not properly safeguard classified
information.  
This Applicant has not demonstrated that he is trustworthy, and he does meet the
eligibility requirements for access to classified information.  Accordingly, I find against
the Applicant under Guideline J (Criminal Conduct).  
On balance, it is concluded that the Applicant has failed to overcome the
Government's case opposing his request for a  security clearance.  Accordingly, the
evidence supports a finding against the Applicant as to the factual and conclusionary
allegations expressed in Paragraph 1 of the SOR.  
FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as required
by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
    Subpara.  1.a.: Against the  Applicant.
    Subpara.  1.b.: Against the Applicant.
DECISION
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue a security clearance for
the Applicant.
Darlene Lokey Anderson
Administrative Judge
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