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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 09-02701
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
May 12, 2010
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Electronic Questionnaires for Investigations
Processing (e-QIP), on September 7, 2006, and a second on September 9, 2008.  On
July 9, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a Statement
of Reasons (SOR) detailing the security concerns under Guidelines E and J for the
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 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. 
The Applicant answered the SOR in writing on July 23, 2009, and requested a
hearing before an Administrative Judge.  DOHA received the request on December 1,
2009, and it was assigned to another Judge.  It was reassigned to the undersigned on
February 3, 2010.  DOHA had already issued a notice of hearing on January 14, 2010,
and I convened the hearing as scheduled on February 10, 2010.  The Government
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offered Exhibits (GXs) 1 through 6, which were received without objection.  The
Applicant testified on his own behalf, as did two witnesses. DOHA received the
transcript of the hearing (TR) on February 23, 2010.  I granted the Applicant’s request to
keep the record open until March 11, 2010, to submit additional matters.  On March 2,
2010, he submitted duplicates of Exhibit (AppX) A to Department Counsel.  On March
28, 2010, Department Counsel forwarded to the undersigned one copy of AppX A,
which was admitted, without objection, into evidence on March 29, 2010.  The record
closed on March 29, 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, the Applicant admitted the factual allegations to all of
the allegations in the SOR, except for Subparagraph 2.b., with explanations.  He made
no response to Subparagraph 2.b.  He also provided additional information to support
his request for eligibility for a security clearance.
Guideline E - Personal Conduct
1.a., 1.e., and 2.a.  The Applicant’s September 2006 e-QIP, Question 22. “Your
Police Record - Firearms/Explosive Offenses” asks, “Have you ever been charged with
or convicted of a firearms or explosives offense,” to which the Applicant answered,
“NO.”  (GX 1 at page 7.)  This was not a truthful answer to the posited question.  (TR at
page 43 line 2 to page 44 line 7.)
In December of 1994, the Applicant was arrested for, and subsequently charged
with: (1) Receiving Stolen Property, (2) Carrying a Concealed Weapon on Person, (3)
Carrying a Loaded Firearm in a Public Place, and (4) Disturbing the Peace.  (TR at
page 38 line 6 to page 41 line 11, and GX 6.)  He ultimately pled guilty to Disturbing the
Peace, and the other charges were dismissed.  (Id.)
The Applicant was not a truthful in his answer to Question 22., as he was afraid
he “wouldn’t get the job” for which he was applying.  (TR at page 43 line 2 to page 44
line 7.)  As a result of this wilful falsification, he was denied program access by a
Government agency in July of 2007.  (GX 5 at page 6.)
1.b.  Two years later, on the Applicant’s September 2008 e-QIP, Section 23.b.
“Your Police Record,” again asked, “Have you ever been charged with or convicted of a
firearms or explosives offense,” to which the Applicant again answered, “NO.”  (GX 3 at
page 26.)  This was not a truthful answer to the posited question.  (TR at page 43 line 2
to page 44 line 7.)
1.c.  The Applicant’s September 2008 e-QIP, Section 26.a. “Your Investigations
Record” asks, “Has the United States Government ever investigated your background,”
to which the Applicant answered, “NO.”  (GX 3 at page 28.)  This was not a truthful
answer to the posited question.  (TR at page 43 line 2 to page 44 line 7.)  His
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background was investigated in conjunction with his September 2006 e-QIP submission
and program access denial, noted above.
1.c.  The Applicant’s September 2008 e-QIP, Section 26.b. “Your Investigations
Record” asks “have you ever had a clearance or access authorization denied,
suspended or revoked,” to which the Appellant answered, “NO.”  (GX 3 at page 28.)
This was not a truthful answer to the posited question.  (TR at page 43 line 2 to page 44
line 7.)  His access authorization was denied, as a result of untruthful answer to
Question 22. on September 2006 e-QIP, noted above.
Guideline J - Criminal Conduct
2.a.  The Applicant’s 1994 conviction for Disturbing the Peace constitutes
Criminal Conduct.
2.b.  The Applicant’s 2006 and 2008 falsifications of his e-QIPs are violations of
18 U.S.C. 1001; and as such, constitute Criminal Conduct.
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 commonsense decision.  According to AG
Paragraph 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.
Paragraph 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 Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph 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
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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
The security concern for Personal Conduct is set out in AG Paragraph 15:
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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(a), “deliberate omission, concealment, or falsification of relevant facts
from any personnel security questionnaire . . . or similar form . . .” may be disqualifying.
Here, the Applicant falsified his 2006 and 2008 e-QIPs.  I can find no countervailing
mitigating conditions that are applicable.  His admitted falsifications are repetitive and
recent.
Guideline J - Criminal Conduct
Paragraph 30 of the new adjudicative guidelines sets out the security concern
relating 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.
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The adjudicative guidelines set out certain conditions that could raise security
concerns.  Paragraph 31(c) provides that an “allegation or admission of criminal
conduct, regardless of whether the person was formally charged, formally prosecuted or
convicted,@ may raise security concerns.  The Applicant was convicted of Disturbing the
Peace in 1994.  More recently, the Applicant’s falsifications of his 2006 and 2008 e-
QIPs were violations of 18 U.S.C. 1001.  Again, I can find no countervailing mitigating
conditions that are applicable.  His admitted Criminal Conduct is repetitive and recent.
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.  Under AG Paragraph 2(c), the ultimate
determination of whether to grant eligibility for a security clearance must be an overall
common sense judgment based upon careful consideration of the guidelines and the
whole-person concept.  The Administrative Judge should also consider the nine
adjudicative process factors listed at AG Paragraph 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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The Applicant has the unqualified support
of those who know him in the community and in the work place (TR at page 24 line 25
to page 35 line 10, and AppX A).  However, the record evidence leaves me with
questions and doubts as to Applicant’s eligibility and suitability for a security clearance.
For these reasons, I conclude Applicant has not mitigated the security concerns arising
from his Personal Conduct and related 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 E: AGAINST APPLICANT
Subparagraph 1.a~1.e: Against Applicant
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Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a. and 2.b: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
Richard A. Cefola
Administrative Judge