1 
 
 
                                                              
                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 09-02419 
 SSN: ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Gregg Cervi, Esquire, Department Counsel 
For Applicant: Anthony C. Williams, Esquire 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
Applicant submitted an Electronic Questionnaire for Investigations Processing  
(e-QIP) on June 2, 2008. On August 28, 2009, the Defense Office of Hearings and 
Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) detailing the 
security concern under Guideline J, Criminal 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.  
  
 On September 14, 2009, Applicant answered the SOR and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on October 
15, 2009. The case was assigned to me on October 20, 2009. On October 26, 2009, a 
Notice of Hearing was issued, scheduling the hearing for December 9, 2009. The case 
was heard on that date. The government offered four exhibits which were admitted as 
Government Exhibits (Gov) 1 – 4. Applicant testified, called one witness and submitted 
four documents which were admitted as Applicant Exhibits (AE) A – D. The transcript 
 
2 
 
 
was received on December 16, 2010.  Based upon a review of the case file, pleadings, 
exhibits, and testimony, eligibility for access to classified information is denied. 
 
Findings of Fact 
 
 In his Answer to the SOR, Applicant admits to part of each allegation that sets 
forth the offenses he was charged with. He denies that he pleaded guilty. He pleaded 
no contest but was found guilty.  
 
Applicant is a 50-year-old service instructor employed by a Department of 
Defense contractor who seeks to maintain a security clearance. He has been employed 
by his company for seven years. He has held a security clearance for 32 years. He 
served over 17 years on active duty in the United States Navy. He retired with an 
honorable discharge. He is a high school graduate and has attended technical training 
in the Navy. He is divorced and has two sons, ages 24 and 21. (Tr at 18, 46, 67-68, 
110; Gov 1; see AE B and AE D)  
 
Applicant has the following arrest history: 
 
In October 1992, Applicant was charged with Display Artificial Deer Light 
Hunting. He pleaded guilty and was fined $125 and court costs. (Gov 4 at 3) 
 
In November 1996, Applicant was arrested and charged with (1) Spotlighting 
Deer During Prohibited Time Period; (2) Taking Deer With the Use of an Artificial Light; 
(3) Driving While Impaired. Applicant pleaded guilty to the first and second charge. The 
Driving While Impaired charge was dismissed. He was fined $250 and his hunting 
privileges were revoked for two years. (Gov 4 at 3 – 4)  
 
Although not alleged in the SOR, Applicant was also charged with Spotlighting in 
November 2002. He listed this offense in response to section 23 on his e-QIP 
application, dated June 6, 2008. He indicated that the charge was dismissed on the e-
QIP application. Applicant testified that his hunting license was suspended for 
Spotlighting five years earlier which is likely related to the same offense. (Tr at 62, 100; 
Gov 1)  
 
On October 27, 2007, Applicant was arrested and charged with Possession of 
Marijuana; Hunt with a Firearm While Intoxicated; Take Wildlife/Closed Season; Hunting 
with an Unauthorized Weapon; Unlawful Hunting of Wild Animal. On March 19, 2008, 
Applicant was found guilty of each offense. For the possession of marijuana charge, he 
was sentenced to 30 days in jail/20 days suspended, his license was restricted for six 
months, and he was fined $500 and court costs. For the Hunting with a Firearm While 
Intoxicated, he was sentenced to nine months in jail (suspended); fined $1,500 and 
ordered to pay $10 court costs. For the Taking Wildlife/Closed Season, he was 
sentenced to 30 days in jail (suspended), fined $1,000 and ordered to pay $10 court 
costs; for the Hunting with an Unauthorized Weapon, he was ordered to pay a $500 fine 
 
3 
 
 
and $10 court costs; for the Unlawful Hunting of a Wild Animal, he was ordered to pay a 
$500 fine and $10 court costs. (Gov 3 at 1 – 5) 
 
On November 4, 2007, Applicant was arrested and charged with Manufacture 
Marijuana for Others, a felony, and Hunting After License Revoked. On March 19, 2008, 
Applicant appeared in court on these charges in conjunction with the charges in the 
above paragraph.  He was found guilty of Hunting After License Revoked. He was 
sentenced to 30 days in jail (suspended), fined $1,000 and ordered to pay $10 court 
costs. The Manufacture Marijuana for Others charge was nolle prossed. (Gov 3 at 6 -7)  
 
The following is a summary of Applicant’s description of the events leading to his 
arrests on October 27, 2007, and November 4, 2007: 
 
 On October 9, 2007, the local sheriff’s department went to Applicant’s home to 
serve Applicant’s oldest son a civil summons regarding an accident his son had been 
involved in. Applicant travels overseas on a frequent basis for his job and was overseas 
at the time. When the sheriff’s department approached the home, the door was open. 
They searched the home. During the search, they discovered six to eight marijuana 
plants in a bathroom located in the basement of the house. Grow lights were also 
discovered in the bathroom. Applicant was contacted at his overseas job location. He 
returned home shortly and contacted an attorney. Applicant claims the police believed 
that he was not involved with the marijuana but suspected one of his sons was involved. 
During the hearing, Applicant testified that he contacted his sons through his attorney, 
and told them whoever was involved with growing the marijuana plants needed to turn 
themselves in by calling his attorney. Applicant claims the oldest son called his attorney 
and admitted the marijuana plants were his. His son did not turn himself in to the police. 
Applicant did not talk directly with his sons about the marijuana plants found in his home 
because he did not want to have to testify against his sons in court. The summary of 
personal subject interview differs from Applicant’s hearing testimony. In the summary, 
Applicant mentions that he called his sons directly and his oldest son told him the 
marijuana was his. (Tr at 48-50, 69, 75-78, 84-85; Gov 2)  
 
On October 27, 2007, Applicant’s sons came home. Applicant told his sons that if 
they had any more drugs in the house, they should remove them and told them to never 
bring drugs in the home again. He then left to attend a neighbor’s birthday party. 
Applicant returned home several hours later. About four p.m., Applicant walked out to a 
deer stand which was approximately 300 feet from his house to relax. He brought a 22 
caliber rifle with him. There was a fox in the area and if Applicant saw the fox, he 
intended to shoot it. He also brought the gun with him for safety because of other 
creatures in the area such as coyotes. He claims he had not been drinking and was not 
hunting. (Tr at 50-54, 63-64, 79-82; Gov 2) 
 
Approximately five minutes after sitting in the deer stand, the deputy sheriff and 
the game warden approached the deer stand and told Applicant to come out with his 
hands up. They discovered the 22 caliber rifle and a baggie half-filled with marijuana in 
the deer stand. Applicant claims that the marijuana did not belong to him. He claims that 
 
4 
 
 
he did not see the marijuana when he entered the deer stand. He claims that his oldest 
son later told him that the baggie of marijuana belonged to him. Applicant was 
subsequently arrested and charged with Possession of Marijuana; Hunting with a 
Firearm While Intoxicated; Take Wildlife, Closed Season; Hunting with Unauthorized 
Weapon; and Unlawful Hunt Wild Animal. He was released after booking. His sons 
picked him up at the police station. (Tr at 52, 55, 90-95; Gov 2; Gov 3)  
 
A few days later, on November 4, 2007, Applicant was arrested and charged with 
Manufacture Marijuana for Others. This charge was related to the marijuana plants that 
were discovered in the basement of his home on October 9, 2007. He was also charged 
with Hunting After License Revoked. His hunting license was revoked for Spotlighting 
Deer in November 2002. (Tr at 54, 62, 100; Gov 2; Gov 3) 
 
Applicant claims that although he was aware that his oldest son was the one who 
was growing the marijuana plants, he decided to plead no contest in order to protect his 
son. He decided to do so after his lawyer told him that his son was facing five to 30 
years for manufacturing marijuana. He did not want his son to serve jail time. On March 
19, 2008, Applicant pleaded no contest to all of the charges. The court found him guilty 
of all the charges with the exception of the Manufacturing Marijuana charge which was 
nolle prossed pursuant to an agreement. (Tr at 57-58, 65-67, 98, 102-104, 109-110; 
Gov 2; Gov 3) 
 
Applicant denies using marijuana. He was shocked when he learned that there 
were marijuana plants in his home. He admits that his hunting license was suspended 
when he was arrested in his deer stand. He claims that he was not hunting on the day 
of his arrest. He also believed it was legal for him to hunt on his own property. He 
initially told the police that the marijuana was not his but pleaded no contest in order to 
protect his son. When he pleaded no contest, he considered the possibility that he might 
lose his security clearance and his job. (Tr at 46, 55-56, 95, 100, 103-104)  
 
Regarding the October 1992 conviction for Spotlighting Deer and the November 
1996 conviction for Spotlighting Deer, Taking Deer With the Use of an Artificial Light, 
and Driving While Impaired, Applicant claims that on both occasions he was not 
hunting. He was just shining a spotlight to look at deer.  In November 1996, he was with 
a friend. His gun was in the car. When they shined the spotlight, a game warden’s 
headlights turned on in the distance. The game warden’s car approached Applicant’s 
car. Applicant’s friend threw Applicant’s gun out the window of the car. When the game 
warden approached the car, he Applicant asked if he had a gun in the truck. Applicant 
said, “No.” Another game warden found the gun outside the truck. Applicant then 
admitted it was his gun. Applicant’s blood alcohol content registered .08. He had drank 
three beers on that evening. The Driving While Impaired charge was dropped. (Gov 4)  
 
References 
 
The Fleet Operations Manager of the location where Applicant works testified on 
his behalf. The Fleet Operations Manager is a civilian employee with the federal 
 
5 
 
 
government. Applicant is a contract employee who has worked for him since January 
2007.  He has known Applicant four years. He recommended that Applicant be hired in 
his current position because of his experience. Applicant is highly regarded by his 
organization. He is aware of Applicant’s criminal history. He is aware that Applicant 
pleaded no contest to the marijuana and hunting charges because he wanted to protect 
his son. He states Applicant is fiercely protective of his sons. The Fleet Operations 
Manager would do the same thing to protect a family member if he encountered a 
similar situation.  He does not question Applicant’s trustworthiness. (Tr at 18 – 44; AE A 
at 9-10) 
 
Applicant’s direct supervisory manager states that he has known Applicant for 
two years. He works closely with Applicant. He finds Applicant to be honest, hard 
working, and dependable. He has observed Applicant safeguard confidential material of 
U.S. and foreign military interest without compromise. (AE A at 3) 
 
Eight other individuals who work with Applicant wrote letters on his behalf 
attesting to his good character, trustworthiness, and reliability. (AE A)  
 
Applicant’s Navy performance evaluations have been favorable. (AE B) His 
awards and decorations include: the Navy Commendation Medal; the Navy 
Achievement Medal; Kuwaiti Liberation Medal; and the Southwest Asia Service Medal. 
(AE C; AE 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 required 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 overarching 
adjudicative goal is a fair, impartial, and commonsense 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.  
 
 
6 
 
 
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 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 
 
 The security concern raised under the criminal conduct guideline is set forth in ¶ 
30 of the Revised Adjudicative Guidelines: 
 
 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. 
 
There are two Criminal Conduct Disqualifying Conditions (CC DC) which apply to 
Applicant’s case. CC DC ¶ 31(a) (a single serious crime or multiple lesser offenses) and 
CC DC ¶ 31(c) (allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted) apply. Applicant has a 
history of hunting violations beginning in 1992. He was charged with additional hunting 
violations in 1996 and 2007. Although not alleged in the SOR, his hunting license was 
suspended for five years because of another hunting violation in November 2002. The 
most recent charges in 2007 consisted of six different hunting violations. He was also 
arrested and charged with Possession of Marijuana, and Manufacture Marijuana for 
Others, a felony. The court found him guilty of possession of marijuana and all six 
hunting charges. The court nolle prossed the felony charge of Manufacture Marijuana 
for Others.  
   
 
7 
 
 
The government’s substantial evidence and Applicant’s own admissions raise 
security concerns under Guideline J. The burden shifted to Applicant to produce 
evidence to rebut, explain, extenuate, or mitigate the security concerns. (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. September 22, 2005))  
 
The following Criminal Conduct Mitigating Conditions (CC MC) are potentially 
relevant to Applicant’s case: 
 
CC MC ¶ 32(a) (so much time has elapsed since the criminal behavior 
happened, or it happened under such circumstances that it is unlikely to recur and does 
not cast doubt on the individual’s reliability, trustworthiness, or good judgment);  
 
CC MC ¶ 32(c) (evidence that the person did not commit the offense);  
 
CC MC ¶ 32(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).  
 
  While Applicant has paid all of his fines and has a good employment record, I 
cannot conclude CC MC ¶¶ 32(a) and 32(d) apply because Applicant has a long history 
of hunting violations. His disregard of the hunting regulations indicate a lack of regard 
for rules and regulations. Although he was found guilty of the each hunting violation, he 
claimed that he was not hunting at the time of each of these offenses. He has not taken 
responsibility for his actions.  
 
Applicant claims that he did not actually possess marijuana. His claim that he 
pleaded no contest to the charges in order to protect his son raises the potential 
applicability of CC MC ¶ 32(c) (evidence that the person did not commit the offense). 
However, the court found him guilty. Aside from his own assertions, no reliable evidence 
was presented to corroborate his story.  Even if he had presented evidence that the 
marijuana was his son’s, concerns would remain about his trustworthiness and reliability 
for accepting culpability for something he allegedly did not do in order to protect his son. 
Hiding the truth from authorities, regardless of the motive for doing so, raises further 
questions about Applicant’s integrity. 
 
Considering Applicant’s history of hunting violations and his 2007 arrests for 
possession of marijuana and manufacture of marijuana, Applicant has not met his 
burden to mitigate the security concerns raised under criminal conduct.  
  
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 
 
8 
 
 
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. I considered Applicant’s active duty 
service in the U.S. Navy. I considered that he held a security clearance for over 32 
years. I considered the favorable comments of his superiors and co-workers. I also 
considered Applicant’s criminal history. While the majority of the violations were 
misdemeanors, Applicant has a long history of disregarding hunting regulations. The 
court found him guilty of the six hunting violations he was charged with in 2007. One of 
charges included Hunting After License Revoked. He was found guilty of the possession 
of marijuana charge and the Manufacture of Marijuana charge was dismissed. While 
Applicant claims that he pleaded no contest to the possession of marijuana charge in 
order to protect his son, he provided no corroborating evidence that the marijuana 
belonged to his son. Even if I concluded that Applicant pleaded no contest to the 
charges in order to protect his son, concerns about Applicant’s trustworthiness and 
integrity would remain. Applicant’s history of misdemeanor hunting violations reveals a 
disregard for rules and regulations. His drug involvement furnishes additional reasons to 
believe he has problems complying with rules and laws enacted to protect the public. If 
he defies laws that he does not like, there is a possibility he may disregard security 
rules that he does not like. Applicant has not mitigated the security concerns raised 
under the 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:    Against Applicant 
  Subparagraph 1.c:    Against Applicant 
 
9 
 
 
  Subparagraph 1.d:    Against Applicant 
   
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interests to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is denied. 
 
                                                
_________________ 
ERIN C. HOGAN 
Administrative Judge