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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 ---------------------- )  ISCR Case No. 08-08019 
 SSN: ----------- ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Alison O’Connell, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guideline J (Criminal 
Conduct). Eligibility for access to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted his security clearance application on October 16, 2007 
(Government Exhibit (GX) 5). On August 10, 2009, the Defense Office of Hearings and 
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the basis for its 
preliminary decision to deny his application, citing security concerns under Guideline J 
(GX 1). 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.  
  
 Applicant received the SOR on August 14, 2009 (GX 3); answered it on August 
31, 2009 (GX 4); and requested determination on the record without a hearing. 
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Department Counsel submitted the government’s written case on October 6, 2009. On 
October 7, 2009, a complete copy of the file of relevant material (FORM) was sent to 
Applicant, who was afforded an opportunity to file objections and submit material to 
refute, extenuate, or mitigate the government’s evidence. Applicant received the FORM 
on October 14, 2009, and responded on November 13, 2009. His response to the 
FORM was admitted in evidence as Applicant’s Exhibit (AX A), without objection. The 
case was assigned to me on December 14, 2009.  
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted all the allegations in the SOR. His 
admissions are incorporated in my findings of fact.  
 
 Applicant is a 27-year-old employee of a defense contractor. He began working 
for his current employer in May 2006, while he was a senior in college. He has never 
been legally married, but he has joint custody of a nine-year-old son who was born 
during a 5-year common-law marriage (GX 6 at 8). He has four brothers and two sisters. 
He has never held a final security clearance, but he has held an interim clearance while 
working for his current employer (AX A at 3).  
 
 Applicant graduated from high school in 2000 and began attending college (GX 5 
at 11-12), but he apparently has not yet completed his degree requirements for a 
bachelor’s degree in engineering (AX A at 3). He worked part-time at various jobs from 
January 1998 to August 1998, from January 2002 to May 2004, and from July 2005 to 
May 2006, when he was hired by his current employer (GX 5 at 13-18). 
  
 In September 1999, when Applicant was 16 years old, he was arrested while 
driving a stolen car. He was with five friends in the stolen car when he was stopped by 
police, and he told the police that his friends were not involved in the theft (GX 7 at 90). 
The evidence of the charges filed against him is conflicting. The police records reflect 
that he was charged with aggravated motor vehicle theft and “theft by receiving” (GX 7 
at 84-91), but the court records reflect that he was charged with aggravated motor 
vehicle theft and theft of rental property. The court records also reflect that the charge of 
aggravated motor vehicle theft was dismissed and that he pleaded guilty to theft of 
rental property (GX 7 at 25). He was sentenced to 30 days in juvenile detention 
(suspended), unsupervised probation for 12 months, and fines and restitution of $875 
(GX 7 at 25). He worked at a fast food restaurant to pay the fines and restitution (AX A 
at 1).  
 
 In November 2004, Applicant and several family members, including his son and 
nephew, gathered in his apartment for a birthday celebration. Neighbors on the floor 
below them complained to police about loud noise and the sounds of constant 
movement, as they had done two or three times previously (GX 7 at 12). Applicant was 
cited for a nuisance offense. He elected to pay a $50 fine rather than demand a trial and 
take time away from school and work (AX A at 2. He and his brothers negotiated with 
the landlord to terminate the lease early, and they moved elsewhere (GX 7 at 13). 
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 In January 2007, Applicant, his siblings, and several of their spouses went to a 
restaurant for dinner. Several siblings, but not Applicant, had been consuming alcohol. 
They became upset about the service when they waited for more than an hour for their 
food and the wrong food was served. Some of Applicant’s party directed vulgar 
language and ethnic slurs toward the staff and the manager, who was of Hispanic 
origin. Applicant’s party started to leave the restaurant but was willing to pay only for the 
food they had received instead of everything they had ordered (GX 7 at 77-78). 
According to Applicant, the restaurant manager directed a racial slur toward his group, 
all of whom are of Asian descent. At that point, Applicant either pushed or punched the 
manager (GX 7 at 17, 60, 66, 75, 78-79). After the police arrived at the restaurant, they 
administered two breathalyzer tests to Applicant, both of which registered 0.00 (GX 7 at 
17). 
 
Applicant was charged with misdemeanor battery. He pleaded guilty and was 
placed on supervised probation for 12 months, ordered to attend a conflict management 
class, and ordered to undergo alcohol evaluation (GX 7 at 23). According to Applicant, 
his probation officer did not require the alcohol evaluation because he had not been 
drinking on the night of the incident and did not have any alcohol-related or drug-related 
incidents in his past (AX A at 2). 
 
 In January 2008, Applicant was at a bar with a group of friends. One of the 
group, apparently intoxicated, was involved in an incident on the dance floor that began 
with an apparently accidental bumping and progressed to what was described by a 
witness as “staring at [another man] in a threatening manner” and a hand gesture of 
unknown meaning. Applicant’s friend was asked to leave the premises but refused. His  
friend was taken into custody, removed from the premises, and placed in a police patrol 
car. Several of Applicant’s group gathered around and began shouting at the police, 
some of them using vulgar language (GX 7 at 32). They were ordered by police to leave 
the premises (GX 7 at 28).  
 
Applicant was not identified as one of those who were shouting at the police, but 
he was identified as one who refused to leave when ordered (GX 7 at 33). In an 
interview with a security investigator, he stated that he complied with the police directive 
by getting into one of the cars driven by members of the group. He was sitting in the 
passenger seat when he was directed by the police to get out of the car. He was cited 
for trespassing and obstruction of a police officer, and released on the scene (GX 7 at 
33, 41). According to Applicant, he asked the police officer why he was being cited, and 
the officer responded that he had not listened to the police (GX 6 at 6; AX A at 3).  
 
Applicant pleaded not guilty to both offenses. He was acquitted of trespassing 
but convicted of obstruction. He told the security investigator he believed his conviction 
of obstruction was based on mistaken identification, and that he was convicted for the 
actions of one of his brothers (GX 7 at 6). He was sentenced to supervised probation for 
12 months and ordered to undergo alcohol evaluation, obtain alcohol counseling, and 
attend conflict management classes (GX 7 at 23).  
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Applicant underwent a drug and alcohol evaluation in September 2008, and the 
evaluator concluded there was insufficient evidence to regard him as a candidate for 
treatment. As a precautionary measure, the evaluator recommended random breath 
tests twice a week for three months (GX 6 at 8). He completed an anger management 
seminar in October 2008 (GX 6 at 9) 
 
In his response to the FORM, Applicant insisted he had done nothing wrong 
during the January 2008 incident, but he acknowledged that he was found guilty of 
obstructing a police officer. He also stated he was a stronger and wiser person as a 
result of the experience, and he is now more cautious when going out in large groups 
(AX A at 3). 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended and modified.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the revised adjudicative guidelines (AG). These guidelines are not 
inflexible rules of law. Instead, recognizing the complexities of human behavior, these 
guidelines are applied in conjunction with an evaluation of the whole person. An 
administrative judge’s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. An administrative judge must consider all available, reliable 
information about the person, past and present, favorable and unfavorable. 
 
 The government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. 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. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is not necessarily a 
determination as to the loyalty of the applicant.  It is merely an indication the applicant 
has not met the strict guidelines the President and the Secretary of Defense have 
established for issuing a clearance. 
 
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 Initially, the government must establish, by substantial evidence, conditions in the 
personal or professional history of the applicant that may disqualify the applicant from 
being eligible for access to classified information. The government has the burden of 
establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 
at 2 (App. Bd. May 2, 1996).   
 
 Once the government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it 
is clearly consistent with the national interest to grant or continue his security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity 
clearance determinations should err, if they must, on the side of denials.” Egan, 484 
U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline J, Criminal Conduct 
 
The SOR alleges Applicant was arrested for trespassing and obstructing a police 
officer, and convicted of the latter offense (SOR ¶ 1.a); he was arrested and convicted 
of battery (SOR ¶ 1.b); and he paid a fine for causing an unlawful nuisance (SOR ¶ 1.c). 
It also alleges he was arrested as a juvenile for aggravated motor vehicle theft and theft 
of rental property, and he was convicted of theft of rental property (SOR 1.d). The 
concern raised by criminal conduct is set out in AG ¶ 30 as follows: “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.” 
 
Conditions that could raise a security concern and may be disqualifying include 
“a single serious crime or multiple lesser offenses” and “allegation or admission of 
criminal conduct, regardless of whether the person was formally charged, formally 
prosecuted, or convicted.” AG ¶¶ 31(a) and (c). Applicant’s criminal record raises both 
disqualifying conditions, shifting the burden to him evidence to rebut, explain, extenuate, 
or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a 
mitigating condition, and the burden of disproving it never shifts to the government. See 
ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).  
 
Two mitigating conditions, AG ¶¶ 32(a) and 32(d), are relevant. None of the other 
enumerated mitigating conditions under this guideline apply to this case.  
 
Under AG ¶ 32(a), security concerns under this guideline may be mitigated by 
evidence that “so much time has elapsed since the criminal behavior happened, or it 
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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.” Applicant’s 
juvenile felony conviction in 1999 was the beginning of a pattern of criminal conduct in 
which he either succumbed to peer pressure or was swept along in a boisterous, unruly 
group. None of the incidents happened under unusual circumstances. The incidents, 
considered together, cast doubt on Applicant’s reliability, trustworthiness, and good 
judgment. I conclude AG ¶ 32(a) is not established. 
 
Under AG ¶ 32(d), security concerns based on criminal conduct also may be 
mitigated if “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.” Applicant’s latest conviction is recent. Although he has worked for his 
current employer for almost four years, he presented no evidence of his performance at 
work. He has expressed remorse for some of his offenses in his written responses, but 
he has denied culpability for the nuisance violation and the January 2008 incident. My 
ability to judge his sincerity and credibility is limited because he did not request a 
hearing. I conclude AG ¶ 32(d) is not established. 
 
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of the applicant’s 
conduct and all the relevant circumstances. An 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 have incorporated my 
comments under Guideline J in my whole-person analysis. Some of the factors in AG ¶ 
2(a) were addressed under that guideline, but some warrant additional comment. 
 
 Applicant is a young man with a gregarious family. He has worked hard since 
high school. He has held an interim clearance with his current employer. He 
acknowledged in his response to the FORM that he needs to be more cautious in a 
large group. It is too soon to tell whether he will implement that wisdom at future social 
events. He has not yet demonstrated the maturity and good judgment expected of a 
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person entrusted with classified information. See Directive ¶¶ E.3.1.17 through E.3.1.40 
(reconsideration of a denial of a security clearance authorized after one year).  
 
 After weighing the disqualifying and mitigating conditions under Guideline J, 
evaluating all the evidence in the context of the whole person, and mindful of my 
obligation to resolve doubtful cases in favor of national security, I conclude Applicant 
has not mitigated the security concerns based on criminal conduct. Accordingly, I 
conclude he has not carried his burden of showing that it is clearly consistent with the 
national interest to grant him eligibility for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR, as required by 
Directive ¶ E3.1.25: 
 
 Paragraph 1, Guideline J (Criminal Conduct):   AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.d:    Against Applicant 
 
Conclusion 
 
 In light of all of the circumstances, 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. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge