DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 09-02668 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Richard A. Stevens, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
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CREAN, Thomas M., Administrative Judge: 
 
Applicant submitted a Questionnaire for Sensitive Position (SF 86) for 
employment with a defense contractor on October 17, 2008. On November 23, 2009, 
the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons 
(SOR) to Applicant detailing security concerns for criminal conduct 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. Applicant 
acknowledged receipt of the SOR on December 2, 2009. 
  
 Applicant answered the SOR in writing on December 10, 2009, admitting the two 
factual allegations but denying the allegations raised a security concern under Guideline 
J, criminal conduct. He provided a detailed explanation and documentation to mitigate 
the security concern. He requested a hearing before an administrative judge.   
 
 
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 Department Counsel was prepared to proceed on January 8, 2010, and the case 
was assigned to me on January 14, 2010. DOHA issued a Notice of Hearing on January 
25, 2010, for a hearing on March 8, 2010. I convened the hearing as scheduled. The 
government offered five exhibits, marked government exhibits (Gov. Ex.) 1 through 5, 
which were received without objection. Applicant testified on his behalf and offered 11 
exhibits admitted without objection as (App. Ex.) A through K. DOHA received the 
transcript of the hearing (Tr.) on March 16, 2010. Based on a review of the case file, 
pleadings, exhibits, and testimony, eligibility for access to classified information is 
granted. 
 
Findings of Fact 
 
 After a thorough review of the pleadings, transcript, and exhibits, I make the 
following essential findings of fact. Applicant admitted the two factual allegations under 
criminal conduct. 
 
Applicant is 47 years old and has worked for the defense contractor for almost 
five years as an operations range program manager. He previously served on active 
duty in the Air Force retiring in 2005 as a captain. Applicant served 11 years on active 
duty as an enlisted airman rising to the rank of master sergeant (E-7). Applicant was 
selected and promoted to master sergeant in 11 years of service. The normal promotion 
time to master sergeant is 15 to 16 years. Applicant pursued schooling while serving in 
the Air Force, and completed various schools in the Air Force. He also received a 
Bachelor of Science degree in computer science in 1992, and a Master of Business 
Administration degree in 2000 (App. Ex. D, Education Documents). Applicant had an 
excellent record of performance as an enlisted airman (App. Ex. A, enlisted evaluation 
reports, 1985-1995). Applicant was selected for and completed officer candidate school 
and was commissioned in 1995. He served ten years as an officer. Again his 
performance as an officer was excellent (App. Ex. B, officer evaluation reports, 1995-
2005). Applicant retired from active duty in 2005 with a Honorable Discharge (Gov. Ex. 
5, DD 214, November 30, 2005). He held a security clearance at the top secret/sensitive 
compartmented information level while serving as an officer.  
 
After retiring from the Air Force, Appellant started working for a defense 
contractor doing the same type of work he did in the Air Force. His performance with the 
defense contractor has also been excellent (App. Ex. C, civilian evaluation reports, 
2005-2009). Applicant has also been active in sports and fitness activities (App. Ex. E, 
Certificates, various dates), as well as community and coaching activities (App. Ex. F, 
Pictures and certificates, undated). 
 
Applicant was born in a South American country and immigrated to the United 
States. After he finished high school, he entered the Air Force. He could not speak 
English well. In spite of language difficulties, he completed his Air Force training, being 
recognized in many courses as an Honor Graduate. He married his first wife in 1993, 
separated in 2001, and divorced in 2004. He had two sons from this marriage, now 
ages 14 and 11. He married again in April 2005, and separated in May 2008. Applicant 
 
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is still married to his second wife but they live separately. Applicant has a step-daughter 
now age 14 from his second marriage (Tr. 39-42). 
 
The criminal charges against Applicant concern a domestic problem with his first 
wife in 2003 (SOR 1.a), and one with his second wife in 2008 (SOR 1.b). After Applicant 
and his first wife separated, Applicant had visitation privileges for his sons. He went to 
his former wife's residence to pick up his sons to take them to a birthday party he 
planned for his older son. His former wife sent the youngest son out to the car. 
Applicant waited for his oldest son but he did not come outside. He went into the house 
and his former wife indicated she would not let the oldest son out. He tried to take his 
son, and his wife pushed and shoved him. He reacted by pushing her back. Calm was 
restored and he and his sons left for the birthday party. His wife called police seeking a 
protection order. He was arrested the next day, and Applicant also sought a protection 
order against his wife (Gov. Ex. 3, Criminal Justice Information report). The charges 
against Applicant for domestic violence were dismissed (Gov. Ex. 4, Case Closure, 
dated March 17, 2003). When Applicant and his former wife divorced in 2004, the judge 
was aware of the incident. The divorce judge did not find any evidence of immoral 
behavior by Applicant or his former wife, and awarded primary residential care for the 
sons to Applicant (Tr. 36-39, Response to SOR, Final Judgment of Dissolution of 
Marriage, dated September 30, 2004).  
 
Applicant married his second wife in 2005. His second wife's prior marriage 
involved domestic violence by both his second wife and her former husband. His 
second wife had made complaints of domestic violence against her former husband 
(Gov. Ex. 2, Answers to Interrogatories, dated June 5, 2009, at 4-8). His second wife 
never received counseling based on incidents from her first marriage. In 2007, Applicant 
and his second wife argued and his wife hit him. He tried to restrain her by pushing her 
into another room. He called the police to report the incident, but was arrested for 
domestic violence. He pled nolo contendre and was sentenced to 12 months probation. 
He successfully completed his probation (Gov. Ex. 2, Answers to Interrogatories, dated 
June 5, 2009, at 4-5; Gov. Ex. 3, Criminal Justice Information). Applicant decided that 
he needed domestic violence counseling. He entered counseling (App. Ex. H, Letter, 
dated February 22, 2010), and completed a 26-week domestic violence course (App. 
Ex. I, Letter, dated February 23, 2010).   
 
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 overarching 
 
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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. 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 
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. 
 
Analysis 
 
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 ¶ 30). Applicant's two arrests for 
domestic violence raise Criminal Conduct Disqualifying Conditions (CC DC) AG ¶ 31(a) 
(a single serious crime or multiple lesser offenses), and CD DC AG ¶ 31(c) (allegation 
or admission of criminal conduct, regardless of whether the person was formally 
charged, formally prosecuted or convicted). 
 
I have considered Criminal Conduct Mitigating Conditions (CC MC) AG ¶ 32(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). It applies to Applicant. The 
first incident happened over seven years ago, and was a mutual combative situation for 
 
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both Applicant and his wife. Applicant and his first wife are now divorced, and Applicant 
was awarded primary residential custody of their sons. Applicant has also completed 
counseling and a domestic violence course. The circumstances leading to the incident 
were not unusual, since it was a domestic incident between a feuding husband and 
wife. However, it is unlikely to recur because of Applicant's divorce, his completion of 
counseling and the domestic violence course, and since over seven years has 
transpired with no recurrence of an incident between Applicant and his first wife. This 
incident no longer casts doubt on Applicant's reliability, trustworthiness, and judgment. 
The incident with his second wife happened less than two years ago. However, the 
circumstances were unusual because his second wife started the incident. Applicant 
completed a domestic violence course and counseling. Applicant and his second wife 
are separated and more incidents of this nature are unlikely to recur.  
 
I considered CC MC AG ¶ 32(b) (evidence that the person did not commit the 
offense). The charge of domestic violence for the 2003 incident was dismissed, since it 
was a mutual combative incident with Applicant and his first wife. The dismissal of the 
offense is evidence that Applicant did not commit the offense of domestic violence.  
 
I considered CC MC AG ¶ 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 was involved in two incidents of 
domestic violence, there is evidence to show that Applicant and both his wives 
contributed to the atmosphere that led to the domestic violence. Applicant completed 
counseling and a domestic violence course. He acknowledged that he did not manage 
the situation with his wives in a good manner. He and his first wife are divorced, and he 
is separated form his second wife. Applicant has an excellent record as an employee 
both in the Air Force and with his defense contractor. He is involved in community and 
church activities which also indicate successful rehabilitation. I find that Applicant has 
mitigated security concerns for criminal conduct.  
 
Whole Person Analysis  
 
 Under the whole person concept, the administrative judge must evaluate an 
applicant’s security eligibility by considering the totality of the applicant’s conduct and all 
the 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, 
 
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exploitation, or duress; and (9) the likelihood of continuation or 
recurrence. 
 
Under AG ¶ 2(c), the ultimate determination of whether to grant 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. Applicant came to this country as an 
immigrant from South America, and had a very successful career in the Air Force even 
though he did not speak English well. He was an enlisted airman rising to the rank of 
Master Sergeant, and earned bachelor and master degrees. He became an officer, 
retiring as a captain with an honorable discharge. His enlisted and officer performance 
evaluations were uniformly excellent. He has worked for a defense contractor for over 
five years, again with excellent ratings. He held a top level security clearance with no 
problems or issue. He is active in his community and church. The two incidents of 
domestic violence involved mutual inappropriate behavior by both Applicant and his 
wives. Applicant entered counseling for domestic violence and successfully completed a 
domestic violence course. Applicant's actions indicate that he is successfully 
rehabilitated and show that he now has good self-control, judgment, and a willingness to 
abide by rules and regulations. He has mitigated security concerns for criminal conduct 
while establishing he is reliable, trustworthy, and exercises good judgment. Overall, on 
balance the record evidence leaves me with no questions and doubts as to Applicant’s 
eligibility and suitability for a security clearance. For all these reasons, I conclude 
Applicant has mitigated the security concerns arising from 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:   FOR APPLICANT 
 
  Subparagraphs 1.a and 1.b:  For Applicant 
 
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. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge