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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------------ )       ISCR Case No. 07-17661
SSN: ---------------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Robert E. Coacher, Department Counsel
For Applicant: Pro Se
July 30, 2009
______________
Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Security Clearance Application (SF-86) on July 6, 2005.
(Government Exhibit 4).  On March 12, 2009, the Defense Office of Hearings and
Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and Department of
Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of
Reasons (SOR) to the Applicant, which detailed the reasons why DOHA could not make
the preliminary affirmative finding under the Directive that it is clearly consistent with the
national interest to grant or continue a security clearance for the Applicant and
recommended referral to an Administrative Judge to determine whether a clearance
should be denied or revoked.
The Applicant responded to the SOR in writing on March 27, 2009, in which he
elected to have the case determined on a written record in lieu of a hearing.
Department Counsel submitted  the Government’s File of Relevant Material (FORM) to
the Applicant on May 1, 2009.  The Applicant was instructed to submit information in
rebuttal, extenuation or mitigation within 30 days of receipt.  Applicant received the
FORM on May 8, 2009, and he submitted a timely reply.  The case was assigned to the
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undersigned for resolution on June 16, 2009.  Based upon a review of the case file,
pleadings, exhibits, and testimony, eligibility for access to classified information is
granted.
FINDINGS OF FACT
The Applicant is 36 years old and married.  He has a Bachelor’s of Science
Degree in Electrical Engineering.  He is employed by a defense contractor as a Senior
Systems Engineer, and is applying for a security clearance in connection with his
employment.
The Government opposes the Applicant's request for a security clearance, on the
basis of allegations set forth in the Statement of Reasons (SOR).  The following findings
of fact are entered as to each paragraph and guideline in the SOR:
Paragraph 1 (Guideline E - Personal Conduct).  The Government alleges in this
paragraph that the Applicant is ineligible for clearance because he engaged in conduct
involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply
with rules and regulations that raise questions about his ability to protect classified
information.   
The Applicant admits to each of the allegations set forth in the SOR under this
guideline.  In 1996, while employed as a police officer, and working undercover as a
detective in a multi-jurisdictional narcotics task force, the Applicant took part in a raid of
a “meth” house, where methamphetamine was being produced.  While searching the
house, the Applicant found a large amount of money and a softball size amount of
methamphetamine wrapped in aluminum foil and turned it over to the proper authorities.
The Applicant was then approached by two other officers in his unit who suggested that
they collect a “trophy” from the raid.  (A trophy is an item of personal property of minor
value from a raid, taken as a keepsake of the bust).  The Applicant improperly took
some items of personal property from the meth house.  As a result of this misconduct,
he became the subject of a police corruption investigation conducted by the FBI.
Applicant pled guilty to a misdemeanor offense of 18 USC Section 242, for deprivation
of civil rights.  He received a four month home confinement along with three years
probation.  
Applicant successfully completed the sentencing requirements imposed by the
court, and voluntarily resigned from the police department.  Applicant’s probation officer
suggested that, in his opinion, because of the Applicant’s character and actions the
Applicant would be a good candidate for a Presidential Pardon.  After contacting an
attorney regarding the matter, Applicant decided not to pursue it when he learned that it
could cost between $7,000.00 and $10,000.00 to do so.    
Applicant explained that although his misconduct is not excused, when the
incident occurred, he had been working as a full time police officer for eight months.  He
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was 24 years old, young, and from a small town police department.  He wanted to fit in
with the task force, and as a junior member just went along with what he was told.
Applicant stated, “My time in the unit can be summarized by a state of constant fear.
Here I was a 24 year old Officer who had joined the Police force to help others, but now
am in a state of constant fear and distrust from those that I immediately work with and in
fear for my life from those I was trying to work cases on.”  (Applicant’s Response to the
FORM, attachment 1).  Applicant was naive and did not have the maturity level required
to do the job properly.          
The Applicant indicates that since then, thirteen years has passed and he has
matured and changed his life around for the better.  He has learned from his mistakes of
the past.  He returned to school, obtained his Bachelor’s of Science in Electrical
Engineering degree, embraced his religion by volunteering at his church, and has
become a different person than he was before.  (Applicant’s Response to the FORM,
attachment 1).
Among many church related volunteer services the Applicant has been involved
in being a role model for a family with three children with an absentee father.  He has
taught one of the children to play baseball, attends their sporting events and provides
general support.  (Applicant’s Response to the FORM, attachment 1).  
Numerous letters of recommendation from friends, coworkers and professional
colleagues who have known the Applicant for many years and/or see him on a daily
basis indicate that the Applicant is an honest, conscientious, compassionate,
hardworking, dependable and reliable individual.  He demonstrates good judgment and
high ethical and moral standards in all aspects of his life.  He is loyal, highly patriotic
and a man of honor and integrity.  His technical expertise at work is a true asset to the
organization.  He is highly recommended for a position of trust.  (Applicant’s Response
to the FORM, attachment 2).
POLICIES
Security clearance decisions are not made in a vacuum.  Accordingly, the
Department of Defense, in Enclosure 2 of the 1992  Directive sets forth policy factors
and conditions that could raise or mitigate a security concern; which must be given
binding consideration in making security clearance determinations.  These factors
should be followed in every case according to the pertinent guidelines.  However, the
conditions are neither automatically determinative of the decision in any case, nor can
they supersede the Administrative Judge’s reliance on her own common sense.
Because each security clearance case presents its own unique facts and
circumstances, it cannot be assumed that these factors exhaust the realm of human
experience, or apply equally in every case.  Based on the Findings of Fact set forth
above, the factors most applicable to the evaluation of this case are:
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Guideline E (Personal Conduct)
15.  The Concern.  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.
Conditions that could raise a security concern:
16.(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 (4) evidence of
significant misuse of Government or other employer’s time or resources;
16.(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 may service as a
basis for exploitation or pressure by the foreign security or intelligence service or other
group.
Condition that could mitigate security concerns:
17.(c) the offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to recur
and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment;
17.(e) the individual has taken positive steps to reduce or eliminate vulnerability
to exploitation, manipulation, or duress;
17.(g) association with persons involved in criminal activity has ceased or occurs
under circumstances that do not cast doubt upon the individual’s reliability,
trustworthiness, judgment, or willingness to comply with rules and regulations.
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:
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a. The nature, extent, 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 extent to which participation was voluntary
f. The presence or absence of rehabilitation and other permanent 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
eligible for a security clearance.  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.  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.”
The Government must make out a case under Guideline E (Personal Conduct)
that establishes doubt about a person's judgment, reliability and trustworthiness.  While
a rational connection, or nexus, must be shown between Applicant's adverse conduct
and his ability to effectively safeguard classified information, with respect to sufficiency
of proof of a rational connection, objective or direct evidence is not required.
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Then, the Applicant must remove that doubt with substantial evidence in
refutation, explanation, mitigation or extenuation, which demonstrates that the past
adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for
a security clearance.  The Government must be able to place a high degree of
confidence in a security clearance holder to abide by all security rules and regulations,
at all times and in all places.
CONCLUSION
Having considered the evidence in light of the appropriate legal standards and
factors, and having assessed the Applicant's credibility based on the record, this
Administrative Judge concludes that the Government has established its case as to all
allegations in the SOR, and that Applicant's personal conduct has a direct and negative
impact on his suitability for access to classified information.  
The evidence shows that thirteen years ago, the Applicant was placed in a
special position of trust, that of an undercover police officer, and he intentionally violated
the position by engaging in corrupt activities.  There is absolutely no excuse for his
misconduct of the past. His actions were investigated by the FBI and he was formally
charged, convicted and sentenced for deprivation of civil rights.  The Applicant states
that he is not the same person that he was thirteen years ago.  Since then, he has
greatly mature and changed his life around.  He has finished college, joined the church,
realizes right from wrong and has corrected his mistakes of his past.  He is a person of
honesty, integrity and trustworthiness and he is not intimidated by anyone. He has had
no further encounters with law enforcement.  He is extremely remorseful for his
misconduct of the past.  He states that he has learned a harsh lesson from this
experience and understands that the serious ramifications of any misconduct and that
the Government will not tolerate any dishonesty while holding a security clearance. 
    
Under Guideline E, Disqualifying Conditions 16.(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, (4) evidence of significant misuse of Government or other
employer’s time or resources and 16.(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 apply.  However,
Mitigating Conditions 17.(c) the offense is so minor, or so much time has passed, or the
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behavior is so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness,
or good judgment, 17.(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress and 17.(g) association with persons
involved in criminal activity has ceased or occurs under circumstances that do not cast
doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to
comply with rules and regulations also apply.
 I have also considered the “whole person concept” in evaluating the Applicant’s
eligibility for access to classified information.  His heartfelt letter about himself as well as
his numerous favourable references, have also been considered. 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 good judgement, trustworthiness,
reliability, and a willingness to comply with rules and regulations, and/or other
characteristics indicating that the person may properly safeguard classified information.
  
Considering all of the evidence presented, the Applicant has mitigated the
negative effects of his past poor personal conduct and the impact that it can have on his
ability to safeguard classified information.  On balance, it is concluded that the Applicant
has overcome the Government's case opposing his request for a security clearance.
Accordingly, the evidence supports a finding for 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: For the Applicant.
Subparagraph 1.a.: For the Applicant
Subparagraph 1.b.: For the Applicant
DECISION
In light of the circumstances presented by the record in this case, it is clearly
consistent with the national interests to grant or continue a security clearance for the
Applicant.
Darlene Lokey Anderson
Administrative Judge
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