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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 07-17735
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Lynn Swenson, Personal Representative
December 8, 2008
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP), on June 14, 2007.  On May 29 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 June 3, 2008.  He answered the
SOR in writing on June 13, 2008, and requested a hearing before an Administrative
Judge.  DOHA received the request on June 17, 2008, and it was assigned to another
Administrative Judge on July 9, 2008.  DOHA issued a notice of hearing on July 16,
2008.  The case was reassigned to me on August 25, 2008, and I convened the hearing
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as scheduled on September 9, 2008.  By way of stipulation, Government Exhibits (GXs)
1 through 3, were received into evidence.  Applicant testified on his own behalf and
submitted Exhibit (AppX) A, without objection.  DOHA received the transcript of the
hearing (TR) on September 19, 2008.  The record closed on the date of the hearing,
September 9, 2008.  Based upon a review of the case file, pleadings, exhibits, and
testimony, eligibility for access to classified information is granted.
Procedural and Evidentiary Rulings
Motion to Withdraw
Department Counsel moved to withdrew subparagraph 2.b. of the SOR.  This
motion was granted (TR at page 32 line 15 to page 33 line 12).
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations of the
subparagraphs of the SOR, other than 2.b.  He also provided additional information to
support his request for eligibility for a security clearance.  The Applicant is a 56 year old
Viet Nam Veteran, who served two stints with the Army from 1969~1971, and again
from 1979~1991 (TR at page 4 lines 23~25, at page 43 lines 6~12, and at page 46 lines
22~25).
Guideline J - Criminal Conduct
1.a.  In May of 1995, the Applicant was arrested for, and subsequently was found
guilty of, Driving Under the Influence (DUI) of alcohol (TR at page 24 line 13 to page 25
line 1, and at page 48 line 16 to page 49 line 18).  As a result of this conviction, the
Applicant was fined and placed on probation (Id).
1.b.  In July of 2000, the Applicant was again arrested for, and subsequently was
found guilty of a DUI (TR at page 25 line 12 to page 25 line 1, and at page 54 line 1 to
page 58 line 2).  As a result of this misdemeanor conviction, the Applicant served ten
days in jail, was fined, his license was suspended, and he was placed on probation for
three years (Id, and GX 3).
1.c.  In August of 2001, the Applicant was cited for speeding, and driving with a
suspended license (TR at page 26 line 6 to page 27 line 13, and at page 58 line 3 to
page 59 line 14).  He was involved in “critical ops [operations]” regarding the assembly
of a launch vehicle, and felt he had no other way to get to the Air Force Base (Id).  As
his presence was essential, he chose “the less of two evils,” and knowingly drove to
work on a driver’s license that has been suspended as a result of his 2000 DUI
conviction (TR at page 26 line 6 to page 27 line 13, and at page 58 line 3 to page 59
line 14).
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1.d.  Finally, in March of 2003, was again cited for driving with a suspended
license (TR at page 27 line 14 to page 28 line 19, and at page 59 line 15 to page 60 line
18).  This was his last act of criminal conduct (Id).  He was placed on 24 months of
unsupervised probation and fined (TR at page 27 line 14 to page 28 line 19, and at
page 59 line 15 to page 60 line 18).
Guideline E - Personal Conduct
2.a.  The Applicant did not report his July 2000 DUI misdemeanor conviction to
his employer (TR at page 28 line 20 to page 29 line 21).  He had no affirmative
obligation to do so, and no one inquired about it until June of 2007 (TR at page 62 line
24 to page 68 line 3, and at page 68 line 9 to page 69 line 6).  In answer to “Section 23:
Your Police Record” on his June 2007 e-QIP, the Applicant disclosed all of the
requested information regarding his misdemeanor conviction (Id, and GX 1 at page 26).
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.  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.
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. 
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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
Paragraph 30 of the adjudicative guidelines sets out the security concern relating
to Criminal Conduct: ACriminal 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.@
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Subparagraph 31(a) provides that “a single serious crime or multiple lesser
offenses@ may be disqualifying.  As noted above, the Applicant had a DUI in 1995, and
again in 2000, and two serious citations, the last one being in March of 2003.  However,
this is countered by the first Mitigating Condition, as “so much time has elapsed since
the criminal behavior happened . . . that it is unlikely to recur . . . .“  Here, the Applicant
last act of criminal conduct occurred more than five years ago, and has since led a
“positive and productive” life (AppX A at page 1).
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
Paragraph 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.”
Disqualifying Condition under Subparagraph 16(d)(3) arguably applies.  It
provides that “credible adverse information that is not explicitly covered under any other
guideline and may not be sufficient by itself for ana adverse determination, but which,
when combined with all available supports a whole-person assessment of questionable
judgment . . . .”  Although the Applicant had no affirmative obligation to inform his
employer of his misdemeanor conviction, until he executed his June 2007 e-QIP, he
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would have been more forthcoming had he done so.  This is clearly countered,
however, by the Mitigation Condition found under Subparagraph 17(c): “so much time
has passed . . . that it is unlikely to recur and dies not cast doubt on the individual’s
reliability, trustworthiness, or good judgment.”  This oversight by the Applicant occurred
more than eight years ago.
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 security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.
Those who know the Applicant, both in and out of the work place, speak most
highly of him (AppX B at pages 1~5).  Of particular note, are the comments of a United
States Probation Officer regarding Applicant’s most recent act of Criminal Conduct.  He
avers, in part, the following: “[The Applicant] . . . satisfactorily completed all terms of his
probation, and he was found to meet all statutory and local criteria for ‘early termination’
of his probation.  His assigned probation officer petitioned the Court, and on August 20,
2004, Magistrate Judge . . . ordered . . . [the Applicant] discharged from supervision and
proceedings in this case terminated” (AppX B the last page).
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Overall, the record evidence leaves me
without questions or doubts as to Applicant’s eligibility and suitability for a security
clearance.  For all these reasons, I conclude Applicant mitigated the security concerns
arising from his Criminal Conduct and related Personal 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: For Applicant
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Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Paragraph 1, 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.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge