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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 07-04151
SSN: ------------------ )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Daniel S. Alderman, Esquire
August 25, 2009
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Decision
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MOGUL, Martin H., Administrative Judge:
On December 31, 2008, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guideline
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 replied to the SOR (RSOR) in writing on February 18, 2009, and
requested a hearing before an Administrative Judge. The case was assigned to this
Administrative Judge on April 9, 2009. DOHA issued a notice of hearing on April 21,
2009, and I convened the hearing as scheduled on May 26, 2009. The Government
offered Government Exhibits 1 through 9, which were received and admitted. Applicant
testified on his own behalf and submitted Applicant Exhibits A through E, which were
also received and admitted. DOHA received the transcript of the hearing (Tr) on June 4,
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2009. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility
for access to classified information is granted.
Findings of Fact
After a complete and thorough review of the evidence in the record, including
Applicant's Answer to the SOR, the admitted documents, and the testimony of
Applicant, and upon due consideration of that evidence, I make the following findings of
fact: 
Applicant is 61 years old. He is married, and he has no children. He received a
Ph.D. in Mechanical Engineering and Material Science.
Applicant was employed by a defense contractor, and he seeks a DoD security
clearance in connection with future employment in the defense sector.
Paragraph 1 (Guideline E - Personal Conduct) 
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he engaged in conduct that exhibited questionable judgement, lack
of candor, dishonesty or unwillingness to comply with rules and regulations.   
         1.a. It is alleged in the SOR that Applicant was terminated by his employer
(Company A), for which he had worked from 1997 to 2001, in September 2001, for
misconduct.
In his RSOR, Applicant denied this allegation. At the hearing, Applicant testified
that his termination was not because of misconduct. His testimony was that Company A
wanted him to patent technology that he had created for them, but he insisted that he
could not have it patented, since it was based on another concept, which was already
patented (Tr at 44-45). He averred that he was not actually terminated, but the company
gave him the option of patenting this technology or leaving the company, and since he
felt it would not be proper to have the technology patented, he chose to leave the
company.
At a later date, Applicant attempted to collect unemployment compensation, as a
result of his employment at Company A. The company disputed his claim, arguing that
he had been terminated for misconduct. Applicant appealed Company A’s decision, and
the Unemployment Insurance Appeal Board ruled that Applicant was not terminated for
misconduct, and he could receive unemployment compensation (Exhibit 3).  Ultimately,
he was rehired by Company A in 2004. 
Based on Applicant’s explanation of the situation, the fact that it was determined
by the Unemployment Insurance Appeal Board that he could collect unemployment
compensation because he was not terminated for misconduct, and that he was rehired
by Company A, the facts indicate that Applicant was not terminated for misconduct from
Company A. 
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1.b. It is alleged in the SOR that Applicant was terminated from a second
employer (Company B), for which he had worked from September 2003 to January
2004, for unsatisfactory behavior and performance, and that he is not eligible for rehire. 
In his RSOR, Applicant denied this allegation. At the hearing, Applicant testified
that when he was hired by Company B it was an upper level position that would utilize
his knowledge and experience. However, the position was not available by the time he
became employed, and thus he was offered a far less demanding and prestigious
position that did not fully utilize his skills, and in fact it was not a position for which he
was trained (Tr at 52-54). He accepted this position, but he was informed that
something more appropriate would become available. 
I find that Applicant was terminated from this position. Exhibit 2 includes the
Termination of Employment letter, dated January 30, 2004, from Company B to
Applicant. It stated that Applicant failed to complete three tasks that had been assigned
to him, and they were unable to find another assignment for him. This letter does not
address whether Applicant would be available for rehire. However, a follow up letter
from the human resources manager, dated March 5, 2004, makes it clear that Applicant
is not eligible for rehire (Exhibit 2).
1.c. It is alleged in the SOR that Applicant contacted several managers from
Company B in February 2004 in an effort to resume his employment with Company B,
which was contrary to his ineligibility status. 
Applicant testified that he was never informed that he was not to contact
individuals at Company B regarding re-employment or that he was not eligible for rehire
(Tr at 61-62). Additionally, while he was working in his previous position, he met the vice
president of Engineering, and he forwarded to him his then current resume, asking if
there was a position in the company more suited to his experience. Exhibit 3, page 24,
has the email from the vice president in which he stated, “there should be a large
number of opportunities here for someone like yourself.” Applicant believed that, based
on that email, there would be other positions more appropriate to his skill level, and he
believed it was not inappropriate to attempt to obtain another position within the
company. Applicant stated that the individuals, whom he contacted, indicated to him
that they would be interested in discussing with him potential positions with the
company.  
1.d. Applicant completed a Security Clearance Application (SCA) which he
caused to be electronically submitted on or about July 2, 2004 (Exhibit 1). Question #20
of the SCA asked whether during the last seven years, Applicant had ever been
terminated from a job, or lost his job under other than favorable circumstances.
Applicant replied “Yes” to that question and furnished the Government with information
about his separation from Company A, as discussed in subparagraph 1.a., above.
However, Applicant failed to supply the information about his employment separation
from Company B, as discussed in subparagraph 1.b., above, alleged. The SOR alleges
that Applicant was not truthful because he failed to include his termination from
Company B, as discussed in 1. b., above. 
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At the hearing, Applicant conceded that he should have included the termination
from Company B (Tr at 51-52). He testified that Exhibit 1 was the first SCA that he had
ever completed. He stated that he was told the sooner he completed the application, the
sooner he could begin working for the company, and therefore he rushed to complete it
on a computer, completing it all in one night, and he was not as careful as he should
have been (Tr at 39-42, 111). He received an interim clearance in 10 days. In 2007 he
sent another copy of the same SCA, after being informed that the DoD did not have a
copy of it. He was not made aware of the problems with his responses to the 2004 SCA
until 2008. 
While it is clear that Applicant should have reported his employment situation
with Company B on the SCA, I find his explanation credible that his failure to include his
Company B termination was due to inadvertence and not an attempt to mislead the
Government. 
1.e. On the July 2004 SCA, Question #6 requested that all employment activities,
without breaks, be listed from the last 7 years before the SCA was completed. The
exception was that all Federal civilian employment was to be listed whether or not it
occurred within the last 7 years. Applicant listed that he has been employed as a
consultant for Company C from 1994 to 1997. It is alleged in the SOR that Applicant
deliberately failed to list that he was also a consultant for Company C from about
January 2004 to June 2004.
Applicant testified that during the period from January 2004 to June 2004 that he
consulted for Company C, which was his own company, he did not earn any income, so
he believed that it was not correct to include this period for Question #6 (Tr at 63-64).
It does appears that Applicant had a reasonable, if not correct, assumption that
he was only to list periods of employment when he earned an income. Applicant did list
nine different employment positions on his SCA. I do not find that he was attempting to
mislead the Government with this omission.
1.f. On the July 2004 SCA, in response to Question #6, Applicant listed that he
had been employed as a consultant for Company D from 2001 to June 2004. It is
alleged in the SOR that Applicant deliberately failed to list that he was unemployed for
about four months in 2002 and 2003, during which time he received unemployment
benefits (Tr at 65-67). 
Applicant testified that the unemployment compensation that he earned for the
period in 2002 and 2003 resulted from when he had been employed by Company A, as
reviewed in 1.a., above. He stated that he continued to consult for Company D, but for a
period of time he was not receiving any income, and thus he applied for unemployment
compensation, which he ultimately received after the challenge before the
Unemployment Insurance Appeal Board. 
In reviewing Applicant’s affidavit, signed by him on January 11, 2008, (Exhibit 4),
Applicant explained what he again reiterated at the hearing, specifically that he did not
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understand that periods of time when he collected unemployment should be listed under
the request for employment activities. He stated that he was not attempting to mislead
the Government, and in fact when he was interviewed by a Government investigator, he
volunteered that he had received unemployment compensation, as the investigator was
not aware of it. 
I find that Applicant again had a reasonable, if not correct, assumption that he
was only to list periods of employment, not periods when he collected unemployment. I
do not find that he was attempting to mislead the Government with this omission.
Mitigation
Applicant submitted 15 character letters from many individuals with high level
positions, including a President/CEO of a company and several Ph.Ds. These
individuals all wrote in extremely laudatory terms of Applicant’s technical abilities, his
character, reliability, and integrity  (Exhibit C).
There were also submitted a number of awards received by Applicant and
newspaper articles written about him, confirming his significant scientific expertise
(Exhibit D). 
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
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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
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 E, Personal Conduct
With respect to Guideline E, the evidence establishes that Applicant furnished to
the Government incomplete answers on an SCA that he executed on July 2, 2004. 
The Government relies heavily on the honesty and integrity of individuals seeking
access to our nation’s secrets. If such an individual intentionally falsifies material facts
or fails to furnish relevant information to a Government investigator, it is extremely
difficult to conclude that he nevertheless possesses the judgment, and honesty
necessary for an individual given a clearance.
In reviewing the Disqualifying Conditions (DC) under Guideline E, DC 16. (a)
could be argued to be applicable if it is determined that Applicant’s omission of relevant
facts from a personnel security questionnaire, which was used to determine security
clearance eligibility, were deliberate. However, after reviewing all of the evidence,
particularly the testimony of Applicant and his affidavit ((Exhibit 4), I find his explanation
credible that the errors were inadvertent, rather than deliberate.
Regarding his loss of employment, as alleged in 1.a., and 1.b., above, no
evidence was introduced to establish that these resulted from questionable judgement,
or an unwillingness to comply with rules and regulations. 
I find that Applicant’s conduct, considered as a whole, does not exhibit
questionable judgement, unreliability, or a lack of candor. I resolve Paragraph 1,
Guideline E, for Applicant.
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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 commonsense judgment based upon careful
consideration of the guidelines and the whole person concept.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why no disqualifying condition applies in this case, together with the
extremely laudatory character letters and the awards and news articles admitted into
evidence, I find that the record evidence leaves me with no significant questions and
doubts as to Applicant’s eligibility and suitability for a security clearance under the whole
person concept. For all these reasons, I conclude Applicant has mitigated the security
concerns.
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 E: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
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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.
                                              
Martin H. Mogul
Administrative Judge