1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 08-03620
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Ray A. Blank, Esq. Department Counsel
For Applicant: Pro se
______________
Decision
______________
MASON, Paul J., Administrative Judge:
Applicant submitted his Security Clearance Application (SCA) on November 8,
2004. On August 12, 2008, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) detailing security concerns under criminal conduct
(Guideline H). The action was taken pursuant to 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 made
effective within the Department of Defense for SORs issued on or after September 1,
2006. 
Applicant submitted his notarized response to the SOR on August 30, 2008.
DOHA issued a notice of hearing on November 5, 2008, and the hearing was held on
November 20, 2008. At the hearing, five exhibits (GE 1 through GE 5) were admitted in
evidence without objection to support the government’s case. Five witnesses and
Applicant testified. Applicant also submitted seven exhibits (AE A through AE G) in
evidence without objection. AE A through AE F contain numerous character statements.
2
AE G contains a performance evaluation from March to October 1993, and an award for
meritorious, military service from February 1987 to February 1997. DOHA received a
copy of the transcript on December 8, 2008. After a thorough review of the pleadings,
exhibits, and testimony, Applicant’s eligibility for access to classified information is
granted. 
Findings of Fact
The SOR contains one allegation under the criminal conduct guideline. Applicant
admitted SOR 1.a. with an explanation. His explanation is that he was serving too many
employers and he neglected some of his responsibilities. 
Applicant, 54 years old, has been married to his wife for 31 years. He has three
children. According to his security clearance form (GE 1), from September 1973 to
January 1977, Applicant was in the United States Army (USA) Active Reserves. In
January 1977, he went on active duty in the USA. He reached the rank of lieutenant
colonel when he was honorably discharged in February 1997. 
Regarding Applicant’s educational background, after receiving his Bachelor’s
degree in 1976, and a graduate degree in management, he enrolled in a university in
September 1988 and graduated in June 1992 with a Ph.D. in Psychology (AE A3, vitae).
In 1992, Applicant was in the USA assigned to provide psychological
assessments to soldiers who wanted to enter the special operations section of the USA.
The five witnesses that testified, and the numerous character statements in AE B
through AE F, describe Applicant’s favorable professional impact on supervisors and
other officers within the military chain of command. The exhibits also contain
observations from present and former coworkers and supervisors in Applicant’s civilian
employment, and also individuals who received counseling from Applicant over the
years. 
In February 1997, Applicant was honorably discharged from his counseling
position in the USA. By September 2001, he was working as an independent contractor
(as a psychologist) for three different companies. In 1997, Applicant began working for a
life care company performing services at nursing homes in state X. Applicant provided
the counseling services to senior citizens and billed company who billed the federal
Medicare or Medicaid program (GE 2). 
In 1998, Applicant was hired by witness C, president of a company primarily
tasked with conducting the same psychological assessments he had been making in the
military. Shortly after September 11, 2001, Applicant started working for his third
employer, a disability determination service for state X (Tr. 94). Applicant explained that
as an independent contractor, he contracted with the three employers because he never
knew how long the contracts would last (AE A).
3
Applicant was unable to manage the administrative requirements (paperwork) of
three employers, primarily the Medicare paperwork for the nursing homes (Tr. 96-99).
He tried to correct mistakes he discovered, but the paperwork overwhelmed him (GE 2;
Tr. 97). He first determined there were billing errors, i.e. for services not rendered, in
December 2001 (Tr. 113), but never asked for help or advice (Tr. 114). The
administrative problems took a toll on Applicant’s health as well. He incurred a very
serious bladder and eye condition in 2000, leading to surgery in November 2002, and
time off from work for a period of time beginning in December 2002 (GE 2). He had a
stroke in February 2006, and he currently suffers from a degenerative spine and joint
condition disorder (AE A1). 
He testified that as a result of the federal investigation into the billing errors
between 2000 and February 2004 (Tr. 99, 112), he was indicted and pled guilty to
felony health care fraud (SOR 1.a.). Though he claimed it was never his intent to falsify
claims (Tr. 108), he admitted that he made false statements and was guilty of fraud
against the federal government (Tr. 110; GE 2). Applicant estimated he made 62 billing
errors to Medicare, and should have sought a settlement much earlier in the criminal
proceedings, but did not want to plead to a felony offense (AE A1).
GE 5 (federal criminal docket of health fraud case from indictment to disposition)
reflects that Applicant was indicted for health care fraud (18 U.S.C. § 1347) on
December 9, 2005. On August 28, 2006, a superceding indictment was filed adding 46
counts to the existing indictment. On January 16, 2007, Applicant entered a plea to the
original indictment. The remaining charges in the superceding indictment appear to
have been dismissed (Id.). On April 17, 2007, Applicant was sentenced to 5 months
federal custody; followed by three years supervised release to probation, including five
months home detention; restitution totaling $63,332.14 to Medicare; and, a special
assessment fine of $100.00. Applicant satisfied all conditions except the remaining fine
balance, and the remaining period of probation. 
Five witnesses testified in Applicant’s behalf. Witness A, who has become the
chief of special operations for 28,000 USA troops in state Y, has known Applicant since
1992 when Applicant was conducting psychological assessments for two USA units.
Witness A also provided a character statement (AE D1). According to witness A,
conducting assessments essentially means predicting whether an applicant will succeed
in special operations in the USA (Tr. 24). Witness A has watched Applicant over the
years keep in contact with the family of fallen soldiers. He described a volunteer
program Applicant began sometime after a major conflict in northern Africa in October
1993 aimed at helping the grieving wives of fallen soldiers (Tr. 26-27). Applicant is still
spending time with the program and those families, and subsequent participants of the
program (AE A, AE B). See also, AE F containing the character statements of witness E
(AE F2) and her son (AE F1). Witness E’s testimony is addressed below. 
Though witness A has no first hand knowledge of Applicant’s health care fraud,
he acknowledged that Applicant was prone to immerse himself so deeply in a project
that he would forget about other tasks (Tr. 29). Witness A recommends that Applicant’s
4
security clearance be restored. In describing the importance of experience in the special
operation services, he stated:
Because in our business, in the Special Operations business, we have an
equation that we like to use, it’s capability is a function of training and
experience. Experience has an exponent, and the more experience that
you have in our community that in and of itself cannot be replaced easily.
We have a saying that Special Operations forces cannot be created
overnight or after an emergency occurs (Tr. 31).
Later in witness A’s testimony, he described Applicant’s importance to the overall
mission of psychological assessments. He stated:
Applicant has all of [the experience and productivity]. He has a
tremendous amount of experience. He can come in and do more in one
day than a brand new psychologist can do in a month. He has that
understanding, so he is absolutely invaluable to us to continue with us in
that capacity. 
That’s why  - - I’m here more because I want to see our organization
enhanced by the tremendous experience that he brings to it. I am also
here because I am a friend of his. But if I had to balance the equation, I
am doing it for my organization, because I know what he brings to use and
how important he is to it (Tr. 32).
Witness B, currently working as an administrator for witness C’s company
(psychological assessments) who also employs Applicant, has known him since
approximately 1996 when Applicant was conducting assessments for the USA. Witness
B indicated that Applicant is a good psychologist (Tr. 45) who has always been
disorganized administratively (Tr. 44). 
Witness C, the president of Applicant’s employer (psychological assessments),
worked with Applicant in the 1990s conducting assessments. In 1998, Applicant joined
witness C’s company and still is employed there. Witness C sees in Applicant a very
thorough psychologist who is among the best (Tr. 56), but who has a weakness in
organization (Tr. 57). When asked whether Applicant has modified his responsibilities
since the criminal conviction, witness C said he had no personal knowledge (Tr. 68-69)
since without a security clearance, Applicant has not been able to work for him. They
did talk about the need to reduce work, and witness C believes Applicant understands
(Id.). Unlike his employment situation between 2000 and 2004, Applicant currently
works for one employer (Tr. 116-118), a juvenile facility for troubled teenagers, and is
not in a position where he has to answer to several bosses at the same time (AE A).
Witness C provided a statement concerning Applicant (AE D6). He does not
believe Applicant is dishonest. Rather, witness C believes that Applicant’s significant
involvement in his work and volunteer services, e.g., counseling services for families of
5
fallen soldiers, counseling for law enforcement and community organizations,
culminated in a stress-filled situation he could not manage (Id.). 
Applicant and witness D, a former coworker, met in 1990. They worked together
on psychological assessments from 2004 until disposition of the criminal case in April
2007. Witness D considers Applicant to be very competent because he made the right
calls (Tr. 73) on psychological ratings of applicants who wanted special operation
assignments. Though witness D has no personal knowledge of the criminal fraud case,
Applicant’s tendency toward brevity in keeping records has enabled witness D to
understand why Applicant would not keep adequate records (Tr. 75-76). 
Witness E’s husband was killed in a Middle Eastern conflict in 1991. Applicant
has provided grief counseling for her since 1992. She lives in the same town in state X
as Applicant. Witness E and her son (who has also received counseling for the last 10
years) also wrote character statements appearing at AE F1 and AE F2. The reason why
she came to the hearing was to help Applicant regain his clearance. She believes he is
an excellent counselor because his training and experience make his counseling more
effective for the families of fallen and current soldiers who are assigned to special
operations (Tr. 85-87). In pages 90 through 93 of the transcript, witness E testified
eloquently that the military needs more counselors like Applicant who possess a better
methodology to improve healing during the grieving process for families of fallen
soldiers. 
Character Evidence
AE A3, Applicant’s vitae, indicates he received 28 awards and certificates while
in the military. See also, AE G. 
The character statements, identifying professional and/or social contact with
Applicant from a short time up to 25 years, uniformly praise Applicant’s work as an
assessor for special operations, but are aware of his lack of administrative organization.
For example, the first character statements in AE B and AE B1 confirm Applicant’s
qualifications in his work and commitment to the families of fallen soldiers, but noted his
mismanagement was aggravated by his ballooning caseload. A chaplain, who worked
with Applicant from 2004 to 2007 on several psychological acceptance boards, believes
Applicant to be one of the most compassionate persons in developing lifelong
relationships with families of soldiers who passed away in 1993 (AE D3). 
Applicant has a long-standing commitment to the military as demonstrated by his
ongoing dedication to the families of fallen victims. He has continued to serve the
families on a voluntary basis because there always will be a need to counsel the
families through their grief (AE A). Applicant continues to volunteer his psychological
services for law enforcement in his area, and has organized and sponsored 14 musical
concerts for children, besides being a motivational speaker in the juvenile court system
(GE 2, AE F11, F 16). He also provided several valuable voluntary services to the
nursing homes such as entertainment, transportation, and athletic activities (AE A, AE
6
F7). Applicant’s psychology licenses for state X (where he lives and works) were
reinstated in November 2007, along with his liability insurance (GE 2; Tr. 118). 
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 flexible rules of law. Recognizing the complexities of human
behavior, these guidelines are applied in conjunction with the factors listed in the
adjudicative process. The Administrative Judge’s ultimate adjudicative goal is a fair,
impartial and common sense decision. According to the AG, the entire process is a
careful, thorough evaluation 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. If residual
doubts remain concerning personnel being considered for access to classified
information, those doubts 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. 
A person who seeks access to classified information enters into a fiduciary
relationship with the government predicated upon trust and confidence. This relationship
is not restricted to normal duty hours. Rather, the relationship is an-around-the-clock
responsibility between an applicant and the federal government. 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.
7
Analysis
Criminal conduct (CC)
30. The Concern. “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.”
CC disqualifying condition (DC) 31.a. (a single serious crime or multiple lesser
offenses) applies in Applicant’s case. As a result of an investigation regarding
Applicant’s billing errors to Medicare, he pled guilty to health care fraud in January 2007
because he was guilty. CC DC 31.d. (individual is currently on parole or probation) also
applies as Applicant is still on probation.
Three of the five mitigating conditions (MC) do apply in this case. CC mitigating
condition (MC) 32.a. (so much time has passed since the criminal behavior happened,
or it happened under such circumstances that it is unlikely to recur and does not cast
doubt on the individual’s reliability, trustworthiness, or good judgment) clearly applies to
this case. Applicant’s fraudulent activity ended in February 2004, (along with his
employment at the life care agency and disability agency) more than four years ago.
Applicant no longer is employed in circumstances that contributed to his fraudulent
activity. Applicant’s criminal conduct does not cast doubt on his current reliability,
trustworthiness and good judgment. 
CC MC 32.b. (the person was pressured or coerced into committing the act and
those pressures are no longer present in his life) provides some mitigation and
extenuation as Applicant could not manage the administrative paperwork. The stress
and pressure no longer exists as his work in the juvenile facility does not require
handling the same kind of paperwork that he was handling with Medicare. 
CC MC 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 development) provides substantial mitigation based on the persuasive
character evidence from past and present coworkers who are intimately familiar with
Applicant’s unswerving reputation for honesty, and who also know that he has trouble
with administrative tasks. The passage of more than four years weighs in Applicant’s
favor. 
Applicant’s remorse is genuine. He has admitted that he made false statements
and committed fraud. In confessing his guilt to the criminal fraud offense, I am satisfied
that Applicant is contrite. His good employment record and community involvement, i.e.
his continuing contributions throughout the criminal case to the families of fallen
comrades, constitutes convincing evidence that enables Applicant to overcome the fact
that he violated the law for about four years, and he will be on probation until April 2011.
Accordingly, the CC guideline is resolved in Applicant’s favor. 
8
Whole Person Concept (WPC)
The AG indicates the ultimate determination of whether to grant a security
clearance must be an overall common sense judgment based upon careful
consideration of the whole person concept. Nine general policy factors define the WPC.
They are: (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 the participation is voluntary; (6) the presence or absence of
rehabilitation; (7) the motivation for the conduct; (8) the potential for pressure, coercion,
exploitation, or duress; and, (9) the likelihood of continuation or recurrence.
Applicant was approximately 46 years old in 2000 when he began billing the
government (Medicare) for services not rendered. He did not end the criminal activity
until February 2004. Though he showed some reticence during the hearing in accepting
the full scope of his illegal conduct, he admitted he committed fraud against the
government. Having listened closely to his testimony and watched him listen as his
witnesses testified about his virtues as well as his weaknesses, I firmly believe he
understands he cannot handle the administrative tasks necessary for the Medicare
claims. I believe he also understands that working for three employers
contemporaneously was creating stress that was too difficult to manage. The totality of
the circumstances informs me that Applicant has learned a painful lesson that has also
resulted in serious health problems. After weighing the unfavorable information relating
to the fraudulent activity against Applicant’s long history of outstanding
accomplishments over the years in his professional career, both in the military and in
private practice, I conclude the chances for recurrence of his criminal conduct are
nonexistent. Accordingly, the CC guideline is resolved in Applicant’s favor. 
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 (Criminal conduct, Guideline J): FOR APPLICANT
Subparagraph 1.a. For Applicant
9
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is granted. 
                       
Paul J. Mason
Administrative Judge