1
 
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-02464
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: John B. Glendon, Esquire, Department Counsel
For Applicant: Pro Se
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the case file, pleadings, exhibits, and testimony,  I
conclude that Applicant’s eligibility for access to classified information is denied.
Applicant submitted her Electronic Questionnaire for Investigations Processing
(e-QIP), on November 4, 2005. On October 17, 2008, the Defense Office of Hearings
and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns
under Guidelines J and E. 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 October 30, 2008. She answered
the SOR in writing on November 5, 2008, and requested a hearing before an
W hen  SOR allegations are controverted, the government bears the burden of producing evidence sufficient1
to prove controverted allegations. Directive ¶ E3.1.14. That burden has two components. First, the government
must establish by substantial evidence that the facts and events alleged in the SOR indeed took place.
Second, the government must establish a nexus between the existence of the established facts and events
and a legitimate security concern. See ISCR Case No. 07-18525 (App. Bd. Feb. 18, 2009), (concurring and
dissenting, in part).
GE 1 (e-QIP); Tr. 16, 18.2
Tr. 17-20.3
2
administrative judge. DOHA received the request on November 17, 2008. Department
Counsel was prepared to proceed on March 2, 2009, and I received the case
assignment on March 3, 2009. DOHA issued a notice of hearing on March 9, 2009, and
I convened the hearing as scheduled on March 31, 2009. The government offered six
exhibits (GE) 1 through 6, which were received and admitted into evidence without
objection. Applicant testified on her own behalf.  She did not submit any exhibits. The
record closed on March 31, 2009. DOHA received the transcript of the hearing (Tr.) on
April 10, 2009.
Procedural and Evidentiary Rulings
Notice
Applicant received the hearing notice on March 17, 2009, less than 15 days
before the hearing. (Tr. 6.) At the hearing, I advised Applicant of her right under ¶
E3.1.8 of the Directive to 15 days notice before the hearing. Applicant affirmatively
waived her right to the notice. (Tr. 8.) 
Findings of Fact
In her Answer to the SOR, dated November 5, 2008, Applicant admitted the
factual allegations in ¶¶ 1.a-1.e and 2.a of the SOR, with explanations. She denied the
factual allegations in ¶ 2.b. of the SOR.1
Applicant is 39 years old and married. She works as a technical writer for a
Department of Defense contractor, a job she has held since July 2005. She received a
clearance in January 2007.2
Applicant currently attends a local community college and plans to graduate in
December 2009 with an associates degree. She attends church regularly, works for a
rescue mission and helps at a soup kitchen. In June 1995, a drunk driver killed her
mother in a car accident. As a result, she does advocacy work for Mothers Against
Drunk Drivers.3
In 1992 when she was 23 years old, Applicant and two friends drove to a local
shopping area. She waited in her car while her two friends entered the store to shop.
The police charged Applicant under State Code Art. 27 §342, which is now State Code, C L §7-104 (revised4
2002). Under the revisions, the theft of an item valued at above $500 is a felony.
GE 3; GE 5; Tr. 22-23.5
GE 3; GE 5; Tr. 23-25, 40-41.6
Tr. 43-45, 67.7
3
Her two friends shoplifted items from the store, then returned to her car. She drove
away, but a witness gave the police her vanity license plate letters. The police arrested
her two days later and charged her with theft plus $300 and conspiracy (SOR ¶ 1.a).
She pled guilty and the court sentenced her to one year on probation and community
service. The record does not provide information on whether this was a felony or
misdemeanor crime.  Immediately after her arrest, Applicant stopped associating with4
one of these friends, but she still has contact with the other friend. She acknowledged
that she was “hanging out” with the wrong people at this time.5
In August 1994, Applicant decided to throw a 25  birthday party for herself. Sheth
asked her older sister if she could use her credit card to purchase items for her
upcoming birthday party. Her sister agreed, provided Applicant paid the debt back
quickly. In August and September 1994, Applicant charged $1,200 on her sister’s credit
card. She paid $200 of these charges. When she did not pay the remainder of the
charges, her sister contacted the credit card company and advised that these charges
were the result of unauthorized use of the credit card. The credit card company pursued
criminal action. In June 1995, just after her mother had been killed, the police issued an
arrest warrant for Applicant. She turned herself in to the police on June 21, 1995. After
the police booked her on three criminal charges of theft, she appeared before a court
commissioner and posted her bond. She was released from the police station sometime
after midnight. She does not recall spending the night in jail.6
In March 1996, Applicant pled guilty to theft in excess of $300, a felony. (SOR ¶¶
1.b and 1.c) The court sentenced her to eight years in jail then suspended the sentence.
The court placed her on three years of probation, fined her and directed her to pay
restitution, which she did. Applicant complied with the terms of her probation, but
sometimes failed to pay the $25 fee the probation office required her to pay each time
she met with her probation officer.7
In the fall 1999, Applicant’s stepmother provided her with a check to purchase
paint and paint supplies for some painting Applicant intended to do for her father and
stepmother. Applicant’s stepmother authorized Applicant to write the check for no more
than $200. Applicant purchased the paint and supplies, but wrote the check for $300.
Applicant retained $100 for herself, as she believed this was the amount her stepmother
intended to pay her for the work. Applicant assumed wrongly. Her stepmother called her
for three days, seeking immediate repayment of the $100. When Applicant did not
respond to the calls or immediately repay the money, her stepmother called the police.
The police charged Applicant with two counts of theft: less $300 value; two counts of
GE 3; GE 5; Tr. 26-27, 52, 55-58, 69.8
GE 3; Tr. 53-55. At the hearing, Department Counsel referenced another possible arrest for violation of her9
probation following the 1992 arrest and sentencing, but the record contains no documentation regarding this
arrest. Since it is not listed in the SOR, no adverse inference will be made against Applicant based on this
issue.
GE 2; Tr. 27-32, 59-62.10
Id.11
4
forgery-private documents, and two counts of uttering a false document. Applicant pled
guilty to two charges of theft, a misdemeanor offense, and the court Nolle Prosequi the
remaining charges. (SOR ¶ 1.d) The court sentenced the Applicant to 90 days in jail,
which was suspended, placed her on 18 months probation, and fined her $55. She paid
her stepmother the $100 long before the court hearing.8
In December 2003, the court issued a bench warrant for Applicant’s arrest for
violation of probation related to her 1996 conviction. This arrest related to her failure to
pay all the fees required by the Office of Probation and Parole. She appeared at a
hearing in January 2004 and paid these monies. The court concluded the proceedings
and did not make any findings against Applicant. This arrest is not listed in the SOR.9
In February 2007, Applicant left her work site with a computer. She drove in her
usual car to a local military base with the intent to take the computer on the base for
repairs. She stopped at the entrance gate for a security inspection. When the military
personnel opened the truck of her car, they found a purse with items in a different name
than hers (purse belonged to her aunt), and a white powder, which was crushed ice
melt. Based on finding these items in her trunk and a concern the white powder was an
illegal drug, the military personnel conducted a full search of her car. They found a
plastic bag with a brown leafy substance which was identified as marijuana. Applicant
denies any knowledge of the marijuana. The record lacks evidence that she uses
marijuana, but she admitted at the hearing that family members do smoke marijuana
and that these family members ride in her car.10
The military police arrested Applicant and charged her with possession of a
controlled substance with intent to use. She immediately reported her arrest to her
supervisor and security officer. Applicant pled guilty to possession of drug
paraphernalia, a misdemeanor offense under state law, on the recommendation of her
attorney, and to put the matter behind her. (SOR ¶ 1.e) The court placed her on
probation for six months, fined her $250, including costs, and ordered 20 hours of
community service. Applicant complied with the terms of her sentence. She
acknowledged that she knew her guilty plea could adversely impact her security
clearance.11
Applicant completed her e-QIP on November 4, 2005. She listed her felony arrest
in 1995, but did not list her misdemeanor theft arrest in 1999 and her probation violation
GE 1; Tr. 33, 50,12
5
arrest in 2003. At the hearing, she stated she did not know why she did not list these
arrests. She thinks she may have thought she needed only to list her felony arrest or
that she misunderstood the question. She denies deliberately falsifying her answers
regarding her past criminal conduct.   12
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.
 
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
6
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
AG ¶ 30 expresses the security concern pertaining to criminal conduct, “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.”
Under AG ¶ 31, the following conditions could raise a security concern and 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.
Although she was not arrested in 1994, Applicant has been arrested five times
between 1992 and 2007. With the exception of her 2003 arrest for violation of probation,
Applicant has pled guilty in each case to one or more of the charges against her. These
disqualifying conditions raise a security concern in this case.
Under AG ¶ 32, the Applicant may mitigate the government’s security concerns
through the following conditions:
(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
7
restitution, job training or higher education, good employment record, or
constructive community involvement.
The last arrest for theft occurred nearly 10 years ago, and was the result of a
family issue. Applicant does not deny the conduct which led to her arrests for theft on
three separate occasions. Both her arrest in 1995 and 1999 occurred because she
either failed to honor her obligations with a family member or took advantage of a
situation with a family member. Since her 1999 arrest, she has improved her
relationship with her immediate family members. She has not associated with one of the
friends who shoplifted in 1992. She remains friends with the other individual, but has not
been involved in any criminal activity with this individual. AG ¶¶ 32(a) and 32(d) have
partial application with respect to SOR allegations 1.a, 1.c, and 1.d. SOR allegation 1.b
is found in favor of Applicant because the criminal charge referenced is part of the
criminal case contained in SOR allegation 1.c.
Guideline E, Personal Conduct
AG ¶ 15 expresses the 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.
Under AG ¶ 16, the following conditions could raise a security concern in this
case and may be disqualifying:
(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;
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the
person may not properly safeguard protected information. This includes
but is not limited to consideration of:
(3) a pattern of dishonesty or rule violations; and
Although she did not list her 2003 arrest, this issue is not raised in the SOR.13
See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-2313314
at 5 (App. Bd. Jun. 9, 2004)).
8
(e) personal conduct, or concealment of information about one's conduct,
that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person's
personal, professional, or community standing, or (2) while in another
country, engaging in any activity that is illegal in that country or that is
legal in that country but illegal in the United States and may serve as a
basis for exploitation or pressure by the foreign security or intelligence
service or other group;
For AG ¶ 16(a) to apply, Applicant’s omission must be deliberate. The
government established that Applicant omitted a material fact from her SF-86 when she
answered “no” to the question about other arrests not previously listed which occurred
within seven years of completing her e-QIP in November 2005. Applicant did not list her
arrest in 1999.  This information is material to the evaluation of Applicant’s13
trustworthiness to hold a security clearance and to her honesty. In her response and at
the hearing, she denies, however, that she had an intent to hide information about her
these arrests. When a falsification allegation is controverted, the government has the
burden of proving the omission was deliberate. Proof of an omission, standing alone,
does not establish or prove an applicant’s intent or 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
intent or state of mind at the time the omission occurred.  For DC ¶ 16 (a) to apply, the14
government must establish that Applicant’s omission, concealment or falsification in her
answer was deliberate.
Applicant denied intentionally leaving out information about her arrests in 1999 as
she knew she needed to be truthful. Even though she had knowledge of these arrests,
Applicant’s failure to answer “yes” in light of this knowledge is not proof that she
intentionally falsified her e-QIP. Applicant, however, could not explain why she failed to
list these arrests. She guessed that maybe because she misunderstood the question,
even though she writes for a living, or did not believe she needed to list arrests for
misdemeanor offenses. I find her lack of a credible explanation indicative of her intent to
keep this information from the government. The government has established that
Applicant intended to hide these arrests in an effort to minimize her past criminal
conduct. Given her involvement with the criminal justice system over a period of 15
years, the government has established a pattern of rules violations which resulted in
criminal arrests and convictions. The disqualifying conditions in AG ¶¶ 16(a) and
16(d)(3) apply.
AG ¶ 17 provides conditions that could mitigate security concerns. Of the listed
conditions, the following may be applicable in this case:
9
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur; and
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress.
Applicant acknowledged her additional arrests in response to the SOR and
discussed the omitted arrests at the hearing. She immediately contacted her supervisor
and security officer when she was arrested in 2007, which shows her understanding
that she must report negative information. Although she has acknowledged her arrests,
her recent arrest for possession of marijuana indicates she has not yet taken all the
steps necessary to ensure that she will not again be involved with the criminal justice
system. Her failure to be candid on her e-QIP cannot be mitigated because a recent
falsification of a security clearance application is too recent and serious to be mitigated
at this time. Falsification of security documents is a fundamental breach that cuts to the
heart of reliability and trustworthiness. She has not mitigated the government’s security
concerns under Guideline E. 
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) 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. 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall common sense judgment based upon careful
consideration of the guidelines and the whole person concept. The decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct,
but on a reasonable and careful evaluation of all the evidence of record to decide if a
nexus exists between established facts and a legitimate security concern. 
10
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant is
attending college with hopes that she will graduate in December 2009 with an Associate
of Arts degree. She plans to continue her college education. She performs volunteer
work for several agencies and regularly attends church. These activities are very
positive in her life. Her continued friendship with one individual involved in her 1992
arrest is not of concern as she and this friend have not been involved in subsequent
criminal activity. She has repaired her relationship her family in more recent years. She,
however, continues to show poor judgment when she allows family members, whom
she knows to use marijuana, in her car. Her family ties are the reason for many of her
problems in the past and possibly more recently. She has made decisions which reflect
poor judgment not only in the past, but over a substantial period of time. She decided to
plead guilty to possession of drug paraphernalia, knowing it could impact her security
clearance eligibility. By pleading guilty to possession of drug paraphernalia, she
acknowledges she violated the law while holding a security clearance. While she is
trying to improve her life, she has not demonstrated that she has taken all the
necessary steps to show that the government should not have any concerns about
granting her a security clearance. 
Overall, the record evidence leaves me with questions or doubts as to Applicant’s
eligibility and suitability for a security clearance. For all these reasons, I conclude
Applicant has not mitigated the security concerns arising from her personal conduct and
criminal 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: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
11
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.
                                                              
MARY E. HENRY
Administrative Judge