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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-----------, ---------- ---------- )          ISCR Case No. 07-12002
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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WHITE, David M., Administrative Judge:
Applicant was arrested for numerous offenses, most of which were drug or
alcohol-related, between 1970 and 1993. She also had a minor traffic infraction in 2002.
She completed probation in December 1993, and she provided strong evidence of
successful rehabilitation. Security concerns were mitigated. Based upon a review of the
case file, pleadings, exhibits, and testimony, eligibility for access to classified
information is granted. 
Applicant submitted her security clearance application on May 8, 2006. On March
18, 2009, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a
Statement of Reasons (SOR) detailing security concerns under Guidelines J (Criminal
Conduct), and E (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 acknowledged receipt of the SOR on June 17, 2009. She answered the
SOR in writing that same day (AR), and requested a hearing before an administrative
judge. Department Counsel was prepared to proceed on July 14, 2009, and the case
was assigned to me on July 17, 2009. DOHA issued a Notice of Hearing on September
8, 2009, and I convened the hearing as scheduled on September 29, 2009. The
Government offered exhibits (GE) 1 through 4, which were admitted without objection.
Applicant offered exhibits (AE) A through J, which were also admitted without objection,
and testified on her own behalf. Two other witnesses also testified for her. I granted
Applicant’s request to leave the record open until October 12, 2009, to permit
submission of additional evidence. DOHA received the transcript of the hearing (Tr.) on
October 7, 2009. On October 13, 2009, Department Counsel forwarded the additional
evidence that was timely submitted by Applicant, without objection to its consideration.
The evidence was marked AE K and admitted.
Findings of Fact
In her answer to the SOR, Applicant admitted all of the criminal conduct
allegations and denied two personal conduct allegations. (AR at 1-2.) Her admissions
are incorporated into the following findings. Applicant is a 60-year-old technician
employed by a defense contractor. She has worked for her present employer since
June 2004, and has held an interim security clearance without incident since shortly
after being hired. She is divorced, with three adult children. She has no prior military
service. (GE 1 at 6, 13-14, 18-20, 23-24, 27; Tr. at 7-9.)
In 1970, Applicant was arrested for possession of drugs after an undercover
police informant mistakenly identified her as her cousin. Applicant had used marijuana
with her cousin and the informant, but was not involved in possession or distribution of
the drug. When the mistake was discovered, charges against Applicant were dismissed.
(GE 2 at 4; Tr. at 70-71, 74-75.)
In July 1977, Applicant was arrested and charged with Sale of Cocaine and
Possession of a Controlled Substance (marijuana) with Intent to Distribute. In November
1977, she was convicted of the second charge, and sentenced to one year in jail
(suspended), and one year of probation. (GE 1 at 31-32; GE 2 at 4-5; GE 4 at 3; Tr. at
75-79.)
Applicant formerly owned and operated a seafood wholesale business. In
November 1979, she traveled to another state with a large amount of cash to purchase
some fish for the business. She took a handgun with her for protection. The gun was
registered in her home state, but not in the other one as required by that state’s law.
She left the gun under a pillow in her hotel room, where a maid found it and turned it in
to police. The gun was confiscated, and she is not sure whether she had to pay a fine.
However, she was not formally prosecuted or otherwise sentenced. (GE 2 at 5; Tr. at
80-82.)
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During August 1982, Applicant became intoxicated and got into a loud domestic
argument with the man with whom she was then living. The police were called by a
neighbor, and Applicant resisted their intervention and assaulted one of the responding
officers. She was arrested on a Drunk and Disorderly charge, and spent the night in jail
to sleep off her inebriation. She was then released without further legal action taken
against her. (AR at 2; GE 2 at 5-6; Tr. at 82.)
On May 27, 1986, Applicant was arrested for nine counts of Unsworn
Falsification and Welfare Fraud. She had been receiving welfare assistance from about
1980 to 1982 before her seafood business grew to become profitable. She wrote to the
welfare agency to inform them she no longer needed assistance, but nine additional
checks were mailed to her. During this time, she had employed a nanny to care for her
children and given her access to her checking account. The nanny cashed the nine
checks, without Applicant’s knowledge, and kept the money. Applicant was found guilty
of fraud, and sentenced to 30 days in jail, with 28 days suspended, and had to repay
about $7,000 in unearned benefits. (GE 2 at 6; GE 4 at 3; Tr. at 68-70, 86-88.)
In 1986, Applicant and a friend went to a Carribean island where she purchased
a kilogram of cocaine for $4,000. She hid the cocaine on her person where it remained
undetected as she reentered the U.S. through Customs. She sold the kilogram of
cocaine to a drug dealer in her hometown for $18,000. She used the profits to support
her children. She admitted to these events during her September 20, 2006, interview
with an investigator from the Office of Personnel Management (OPM). They were never
detected by law enforcement, and she was not arrested or charged in connection with
them. (GE 2 at 6-7; Tr. at 88-92.)
In August 1987, Applicant went back to the Carribean island, with a different
associate, to buy another kilogram of cocaine. Customs agents searched her as she
reentered the U.S. and found the cocaine. She was arrested and charged with
Importation of Cocaine and Possession of Cocaine with Intent to Distribute. She
reached an agreement with the U.S. Attorney and Drug Enforcement Administration to
work undercover and identify other drug dealers for them. In return, the second charge
was dismissed and she was sentenced to two years of confinement, followed by four
years of supervised probation that began in December 1989. While in prison, she saved
the life of another inmate who was threatened by prison gang members, and she was
released early for good behavior after serving 16 months. Since her 1987 arrest and
subsequent imprisonment, Applicant has not illegally used or possessed any drugs. (GE
2 at 7; GE 3; GE 4 at 4; Tr. at 88-95, 112.)
In late March 1993, while still serving probation, Applicant went on vacation to
another state. She spent the evening with some acquaintances, one of whom
purchased some marijuana and was subsequently arrested. The police interviewed all
group members, and discovered that Applicant was on Federal probation for a drug
offense. The state authorities charged her with Promoting Detrimental Drugs, and
notified her probation officer. This charge was dismissed in April 1993, and Applicant
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successfully completed her probation in December 1993. (GE 2 at 8-9; GE 4 at 4; Tr. at
92-93.)
In June 2002, Applicant was working on a construction project in another city and
staying in a hotel. She went to a restaurant for dinner and had two drinks with her meal.
As she drove back to her hotel in the early morning hours, she realized her hotel was on
the other side of the street from where she was driving in the right lane. After confirming
that there were no other cars in the area, she drove across the road into the left turn
lane. A policeman then pulled her over and accused her of being intoxicated. Even
though she passed the field sobriety test, he still arrested her. In the process, he re-
injured her shoulder that she hurt earlier that week. She became angry and combative
as a result. At the police station, she consented to and passed a blood alcohol test. She
was initially charged with Driving While Intoxicated (DWI) and Resisting/Interfering with
Arrest, but the former charge was reduced to a Negligent/Reckless Driving violation for
which she paid a fine, and the latter charge was dismissed. (GE 2 at 7-8; GE 4 at 5; AE
K at 2, 3; Tr. at 82-84.)
Applicant admits and recognizes the wrongfulness of her criminal behavior from
1970 to 1987. She resolved after leaving prison that she would turn her life around and
become a good citizen. She has performed significant charitable work, is very highly
regarded by numerous friends and coworkers, and has received regular recognition by
her military customers for her outstanding efforts in support of their missions. She takes
great pride in having overcome her difficult past and in her present contributions to the
community and her employer. Her expressions of regret for past wrongdoing and
intention never to repeat such conduct were very credible and sincere. (AE A through K;
Tr. at 32-68, 94-99, 112-113.)
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 to be used 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense decision. According
to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable
guidelines in the context 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
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classified information will be resolved in favor of the 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. 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, “[t]he applicant is
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
mitigate facts admitted by the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides that “[a]ny determination under this order adverse to
an applicant 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.” 
A person applying for access to classified information seeks to enter 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.
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.” 
AG ¶ 31 describes conditions that could raise a security concern and may be
disqualifying (DCs). The two DCs supported by the SOR allegations, Applicant’s
admissions, and undisputed evidence of record are: 
(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 admittedly committed multiple drug offenses from 1970 to 1987,
including felonious importation of cocaine in 1986 and 1987. She unknowingly violated a
gun registration law in 1979, and was convicted on Welfare Fraud charges in 1986 for
wrongdoing that was primarily committed by her nanny. There is no evidence she
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committed the 1993 Promoting Detrimental Drugs offense for which she was arrested,
and that charge was dismissed before trial. Most recently, she paid a fine for a minor
traffic violation in June 2002. The evidence fully supports security concerns under the
DCs set forth in AG ¶¶ 31(a) and (c). 
AG ¶ 32 provides conditions that could mitigate criminal conduct security
concerns. These are: 
(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
restitution, job training or higher education, good employment record, or
constructive community involvement.
For mitigation analysis, Applicant’s SOR-listed criminal conduct and her criminal
history must be evaluated as a whole, not piece by piece. Other than one minor traffic
violation, Applicant’s most recent criminal conduct occurred in August 1987, and was
motivated by her desire to earn money to support her children who have long since
grown up. For the past 22 years, she has remained law-abiding and worked hard to
overcome her difficult past. All evidence from those who have known her recently
attests to her present reliability, trustworthiness, and good judgment. She also testified
credibly concerning her determination that such criminal conduct will not recur. This
evidence establishes substantial mitigation under AG ¶ 32(a). 
Applicant made no showing that she was pressured or coerced into any of her
criminal acts to support application of AG ¶ 32(b). Applicant’s 1993 Promoting
Detrimental Drugs charge and 2002 DWI charge were both dismissed, and the record
evidence shows that she did not commit those offenses despite having been arrested
for them. AG ¶ 32(c) thus provides some mitigation in relation to those two matters. 
Applicant also established substantial mitigation under AG ¶ 32(d). Other than a
minor traffic violation for a reckless lane change, it has been more than 22 years since
her most recent criminal activity. She demonstrated sincere remorse for her past
wrongdoing, and has fully complied with all court sentences resulting therefrom. After
her 1987 arrest, she worked with law enforcement to identify and apprehend others
involved in illegal drug distribution. Her lengthy and excellent employment record and
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extensive volunteer charitable community work further demonstrate her successful
rehabilitation. 
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.
The following will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance eligibility:
(a) refusal, or failure without reasonable cause, to undergo or
cooperate with security processing, including but not limited to
meeting with a security investigator for subject interview,
completing security forms or releases, and cooperation with
medical or psychological evaluation; 
(b) refusal to provide full, frank and truthful answers to lawful
questions of investigators, security officials, or other official
representatives in connection with a personnel security or
trustworthiness determination.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying. Department Counsel expressed the Government’s position that the
Personal Conduct allegations in the SOR duplicate and are multiplicious with the
allegations under the Criminal Conduct Guideline. (Tr. at 21, 100.) To the extent that the
Personal Conduct guideline allegations pertain to general judgment, reliability, and
trustworthiness issues already addressed under Guideline J, and further analyzed under
the whole-person discussion below, Department Counsel is correct. To the extent her
SOR-alleged drug involvement and criminal history may support security concerns
under AG ¶ 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. . .”), separate Guideline E concerns may arise. Applicant’s full
acknowledgment and disclosure of her past acts, and the passage of more than 20
years since her last conviction, fully mitigate any such concerns under AG ¶¶ 17(c) (“. . .
so much time has passed. . . that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment”) and 17(e) (“the individual has
taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or
duress”).
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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 relevant circumstances established by the record evidence. 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
relevant facts and circumstances surrounding this case. Applicant’s conduct of security
concern primarily involved several significant drug-related offenses, but the most recent
of these occurred more than 22 years ago. Since her arrest for that offense, she has
cooperated in Federal investigations as an undercover drug informant, resolved to
change her former criminal ways, and lived as a law-abiding and contributing member of
her community. She was old enough to be accountable for her crimes, and fully
acknowledges their wrongfulness. Over the past 20 years, however, she has
demonstrated her resolve to live a responsible life while making positive contributions to
help others in need of assistance. 
The testaments to her present good character, trustworthiness, and responsibility
by numerous friends and coworkers are unanimous and impressive. Taken together
with her sincere and credible expression of remorse for former misconduct and pride in
her new lifestyle, Applicant fully demonstrated rehabilitation and permanent behavioral
change. Her full disclosure of past actions and recent good behavior have alleviated any
potential for pressure, coercion, exploitation, or duress. The likelihood of recurrence is
minimal.
Overall, the record evidence generates substantial confidence concerning
Applicant’s present eligibility and suitability for a security clearance. She fully met her
burden to mitigate the security concerns arising from her criminal conduct and personal
conduct.
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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
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
Subparagraph 1.g: For Applicant
Subparagraph 1.h: For Applicant
Subparagraph 1.i: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: 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.
                                             
DAVID M. WHITE
Administrative Judge