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                                            DEPARTMENT OF DEFENSE  
DEFENSE OFFICE OF HEARINGS AND APPEALS 
 
           
             
 
 
In the matter of: ) 
 ) 
  ) ISCR Case No. 08-03314 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances  
 
For Government: Braden M. Murphy, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
DAM, Shari, Administrative Judge: 
 
 Based upon a review of the case file, pleadings, and exhibits, eligibility for access 
to classified information is granted. 
 
On July 21, 2005, Applicant submitted a Security Clearance Application (SF-86). 
On August 19, 2008, the Defense Office of Hearings and Appeals (DOHA) issued 
Applicant a Statement of Reasons (SOR) detailing security concerns under the 
guidelines for Criminal Conduct and Personal Conduct. 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.  
  
 
 
 
 
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 Applicant answered the SOR in writing on September 12, 2008, and waived his 
right to a hearing before an administrative judge. On October 17, 2008, the Government 
filed a request for hearing pursuant Paragraph E3.1.7 of the Additional Procedural 
Guidance at Enclosure 3 of DoD Directive 5220.6. On December 8, 2008, DOHA 
assigned the case to me and issued a Notice of Hearing on January 7, 2009. The case 
was heard on January 29, 2009, as scheduled. Department Counsel offered 
Government exhibits (GE) 1 and 2 into evidence without objection. Applicant testified. 
The record remained open until February 13, 2009, in order to give Applicant an 
opportunity to submit pertinent information. On February 11, 2009, he submitted exhibits 
(AE) A through I that were admitted into evidence without objection. DOHA received the 
hearing transcript (Tr.) on February 9, 2009.                                                           
 
Findings of Fact 
 
 In his Answer to the SOR, Applicant admitted the factual allegations contained in 
¶¶ 1.a through 1.c of the SOR, and denied the allegation contained in ¶ 2.a. Those 
admissions are incorporated into the following findings of fact: 
 
 Applicant is 41 years old and twice married. He married his first wife in 1987 and 
had two children with her, ages 18 and 20. One of these children is in college and the 
other lives with Applicant’s former wife. Applicant married his current wife in 1998 with 
whom he has two children. His wife has a child by a former marriage. The three 
children, ages 7, 10 and 13, all reside with them. His wife is a licensed professional 
counselor.  
 
  Applicant enlisted in the Air Force in 1986 and retired with an honorable 
discharge in September 2006 as a Technical Sergeant (E-6). While in the Air Force, he 
had a Top Secret clearance. He worked in the Command Control Division and had 
access to classified information. He was assigned to Special Operations for two years, 
during which he was deployed overseas most of the time. He comes from a family with 
a history of military service. Both of his grandfathers served in the Army. His father was 
in the U.S. Marines and Army, and his brother is a Technical Sergeant in the Air Force. 
He has held a security clearance since 1986 with no discrepancies in security policies. 
He earned a Bachelor of Science in Computer Science while in the service. 
 
 Applicant earned several awards and decorations during his military career, 
including four achievement medals, and a Joint Service Achievement Medal. (AE I)  His 
former commander, a Senior Master Sergeant, submitted a character letter. He found 
Applicant to be very reliable, competent, dependable and hardworking. (AE H)                                      
 
 After being discharged from the Air Force in 2006, Applicant worked for two 
defense contractors until April 2008, when he obtained his current position with another 
federal contractor as an information systems security analyst. He has had access to 
classified information while working for these contractors.   
 
 
 
 
 
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 In September 2003, Applicant was arrested for Child Neglect by the military 
police on the base where he lived. Immediately prior to the arrest, he had returned 
home from work in the morning and was responsible for the care of his two children, 
ages 2 and 5, as his wife had left for work. He was tired that morning, having worked 
the night shift. He admitted that he mistakenly fell asleep and his children left the house, 
and went to the park behind their house unsupervised. His neighbor called the police, 
who then came to his house and woke him up. His wife came home and his supervisor 
came over. He was handcuffed and taken to the station where he wrote a statement 
and was then released. He subsequently received a Letter of Reprimand. He did not 
receive any other disciplinary action. (Tr. 28) 
 
 In March 2006, Applicant was arrested for shoplifting a computer disk from the 
base store. He had paid for other items before leaving the store. On April 1, 2006, at a 
hearing conducted under Article 15, Uniform Code of Military Justice, he admitted the 
shoplifting charge and received a reduction in pay grade (suspended) and forfeited 
$438. After being disciplined, he voluntarily decided to seek professional help because 
of the shame he felt. (Tr. 31-32) He attended weekly counseling for about six months. 
Although he does not have a clear explanation for the impulsive act, he learned a great 
deal about himself through the counseling sessions. He is a better husband and father, 
having participated in it. (Tr. 34) He remains very embarrassed by the incident, which 
was out of character for him. He repaid the base store $200 two weeks after the arrest. 
(GE 2)  
 
 In July 2005, Applicant completed his SF 86. Section 26 on the SF 86 inquired 
about his Police Record – Other Offenses: “In the last 7 years, have you ever been 
charged with or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25?”  
In response to that question, he answered “No” and did not disclose the September 
2003 child neglect arrest at the base. However, he did disclose that he had consulted a 
mental health professional in the past.1 
 
 Applicant did not disclose the 2003 charge because he did not understand that 
he was arrested on that date.2 (Tr. 22) He was taken to the police station after the police 
arrived at his home, but he never went to court or received notice of anything about it 
other than a letter of reprimand. He did, however, mention the incident to a government 
investigator when he was discussing more fully his answers on his SF-86. (Tr. 30) He 
was then told he should have disclosed it. He did not deliberately fail to disclose it and 
had no intention to defraud or withhold information from the Government. (Tr. 23; 33) 
 
 Applicant’s immediate supervisor requested a salary increase for him as a result 
of his outstanding work during his first year with his present employer. In the first annual 
performance evaluation, the supervisor referred to Applicant as “a model employee.” 
(AE E) In a character letter, the supervisor noted that he is aware of Applicant’s security 
                                            
1Applicant sought mental health services in June 2001 for counseling about his children from his 
first marriage. (GE 2) 
2 Applicant completed his SF 86 in July 2005, which was before the March 2006 arrest. 
 
 
 
 
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clearance issues, as Applicant’s has been very “forthcoming and open about the 
circumstances surround this issue and quick to answer questions and provide details 
when asked.” (AE F) He has no reservations about recommending him for a clearance. 
(Id.)  
 
 While testifying, Applicant expressed remorse over both incidents and indicated 
that he has not been arrested or charged with any other incident since the March 2006 
charge. (Tr. 33) Applicant’s wife, supervisor and co-workers were aware of incidents 
and his counseling at the time they occurred. (GE 2).   
   
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(a), 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. 
 
Directive ¶ E3.1.14 requires the Government to 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 and has the 
ultimate burden of persuasion as to obtaining a favorable security decision.” 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.”  
 
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 
 
 
 
 
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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. 
  
Analysis 
 
Guideline J, Criminal Conduct 
The Government’s concerns regarding criminal conduct are set forth 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. 
AG ¶ 31 describes six conditions that could raise a security concern, two of which 
may be disqualifying in this case: 
(a) a single serious crime or multiple lesser offenses; and 
(c) allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted. 
Applicant admitted the two criminal arrests for minor offenses and that he went to 
an Article 15 UCMJ hearing for theft. The Government established both 
disqualifications.  
 After the Government raised a disqualification, the burden shifted to Applicant to 
provide evidence to rebut or to prove mitigation. AG ¶ 32 provides conditions that could 
mitigate security concerns: 
(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;  
(b) the person was pressured or coerced into committing the act and those 
pressures are no longer present in the person's life; 
(c) evidence that the person did not commit the offense; and 
(d) there is evidence of successful rehabilitation; including but not limited 
to the passage of time without recurrence of criminal activity, remorse or 
 
 
 
 
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restitution, job training or higher education, good employment record, or 
constructive community involvement. 
 The record evidence supports the application of AG ¶ 32(d). The last criminal 
offense occurred two years ago and there is no evidence of the recurrence of similar 
misconduct. Applicant is very remorseful and made restitution on the theft charge two 
weeks after his arrest. He voluntarily entered counseling and completed it after six 
months. He had a good work record while in the Air Force and during his first year with 
a defense contractor. He spoke candidly of his misconduct and dedication to his current 
employer.  
 
 The record does not support the application of the other three mitigating 
conditions under AG ¶ 32. 
 
Guideline E, Personal Conduct 
AG ¶ 15 expresses the Government’s security concern pertaining to personal 
conduct:  
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. 
The Government alleged in SOR ¶ 2.a that Applicant falsified his answer to 
Section 26. Your Police Record – Other Offenses, in that he failed to disclose the 
September 2003 Child Neglect arrest. The Government contended that the omission 
may raise a security concern and be disqualifying 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 
qualifications, award benefits or status, determine security clearance 
eligibility or trustworthiness, or award fiduciary responsibilities. 
 
Applicant denied that he deliberately omitted information about the 2003 incident.  
When a falsification allegation is controverted or denied, the government has the 
burden of proving it. Proof of an omission, standing alone, does not establish or prove 
an applicant’s state of mind when the omission occurred.  An administrative judge must 
consider the record evidence as a whole to determine whether there is direct or 
circumstantial evidence concerning an applicant’s state of mind at the time the omission 
occurred. See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004) (explaining 
holding in ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004)). 
 
 
 
 
 
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Applicant did not realize that the previous 2003 incident was a charge or arrest 
that he needed to disclose when he completed his SF 86 because he never went to 
court or received any type of punishment for the incident, other than a letter of 
reprimand. He subsequently disclosed it during an interview with a government 
investigator while discussing more fully his answers to the SF 86. At that time, he 
learned it should have been disclosed. Given his truthful disclosure of his 2001 
counseling for issues related to one of his children and his candid testimony during this 
hearing, I find his explanation plausible and credible. The omission of the information 
was not intentional; hence, the evidence does not establish deliberate falsification or a 
violation of federal law. This Guideline is found in his favor. 
 
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). They include the following:  
 
(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.  
 
According to AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a 
security clearance must include an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole person concept.        
 
I considered potentially disqualifying and mitigating conditions in light of all the 
facts and circumstances surrounding this case, including the many positive aspects in 
Applicant’s life. He is a 41-year-old man, who honorably served his country for twenty 
years in the U.S. Air Force, during which time he held a Top-Secret clearance. After 
leaving military service, he began employment with a defense contractor and continues 
to successfully support the Government in his new position, while maintaining a Top 
Secret security clearance.  He is intelligent, honest and hardworking. His background 
contains two minor negative incidents, for which Applicant feels great embarrassment 
and remorse. After the 2006 shoplifting arrest, he voluntarily sought counseling and 
continued it for several months. As a result, he learned a great deal about himself and 
improved his relationship with his family. His previous and current supervisors, as well 
as his family, are aware of his background, decreasing the potential for coercion or 
exploitation over the incidents. He recognizes his mistakes and has taken steps to 
address them.  
 
 
 
 
 
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Overall, the record evidence leaves me without questions as to Applicant’s 
eligibility and suitability for a security clearance. For all these reasons, I conclude 
Applicant mitigated the security concerns arising under Criminal Conduct and 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 
    Subparagraphs 1.a -1.c:    For Applicant 
  
 Paragraph 2, 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 the interests of national security to grant Applicant eligibility for a 
security clearance. Eligibility for access to classified information is granted. 
 
                                                 
     
_________________ 
SHARI DAM 
Administrative Judge