DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
 
In the matter of:                                              ) 
        ) 
         )  ISCR Case No. 07-09877 
                   ) 
        ) 
Applicant for Security Clearance                    ) 
 
 
Appearances 
 
For Government: Braden M. Murphy, Esquire, Department Counsel 
 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
O’BRIEN, Rita C., Administrative Judge: 
 
Based on a review of the case file, pleadings, testimony, and exhibits, I conclude 
that Applicant has mitigated the security concerns related to criminal conduct and 
personal conduct. Accordingly, her request for a security clearance is granted. 
 
Statement of the Case 
 
Applicant requested a security clearance by submitting an Electronic 
Questionnaire for Investigations Processing (e-QIP), signed on September 26, 2006. 
After reviewing the results of the ensuing background investigation, adjudicators for the 
Defense Office of Hearings and Appeals (DOHA) were unable to make a preliminary 
 
1 
 
 
2 
 
 
                                                          
affirmative finding1 that it is clearly consistent with the national interest to grant 
Applicant’s request.  
 
On September 25, 2009, DOHA issued to Applicant a Statement of Reasons 
(SOR) that specified the basis for its decision: security concerns addressed in the 
Directive under Guidelines J and E of the Adjudicative Guidelines (AG).2 Applicant 
signed and notarized her first Answer on November 3, 2009. However, she failed to 
either admit or deny each allegation, and DOHA requested that she resubmit her 
Answer. She notarized a complete second Answer on November 22, 2009. Applicant 
admitted the five allegations under Guideline J, Criminal Conduct, with explanations. 
Under Guideline E, Personal Conduct, she admitted allegation 1.a. and denied the 
remaining allegations.3 Department Counsel was prepared to proceed on January 26, 
2010, and the case was assigned to me on February 2, 2010. DOHA issued a Notice of 
Hearing on March 3, 2010, and I convened the hearing as scheduled on March 23, 2010. 
The Government offered four exhibits, which I admitted as Government Exhibits (GE) 1 
through 4. Applicant offered three exhibits, which I admitted as Applicant's Exhibits (AE) 
A through C.4 DOHA received the transcript (Tr.) on March 30, 2010. 
 
Findings of Fact 
 
Applicant’s admissions in response to the SOR are incorporated as findings of 
fact. After a thorough review of the pleadings, Applicant’s response to the SOR, and the 
record evidence, I make the following additional findings of fact. 
 
Applicant, 50 years old, submitted an application to request a security clearance 
as part of her job as a security officer for a defense contractor. She completed high 
school in 1978. She has been married for 30 years and has four adult children and one 
13-year-old son. She also cares for and has legal custody of a mentally disabled 
neighbor. She has worked as a security officer for federal contractors since 1998. She 
1 Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as 
amended. 
2 Adjudication of this case is controlled by the Adjudicative Guidelines implemented by the Department of 
Defense on September 1, 2006.  
 
3 Department Counsel stated at the hearing that the Government would not pursue the falsification 
allegation at subparagraph 2.b. under Guideline E, which Applicant had denied. I note that Applicant's 
answer to allegation 1.e. under Guideline J contradicted her answers to allegations under Guideline E. In 
her response to allegation 1.e., she admitted falsification of answers on her security clearance 
application. However, she denied falsifying these same answers in her response to the allegations under 
Guideline E. Viewing this contradiction in the light most favorable to the Applicant, and supported by 
Applicant's hearing testimony, I find that her intent was to deny all falsification allegations in the SOR. 
 
4 For administrative convenience, I severed these three documents from Applicant's first Answer so that 
they could be offered by Applicant as exhibits. 
 
 
3 
 
 
has held a secret security clearance, but has not worked with classified information as 
part of her jobs. (GE 1; Tr. 20-23) 
 
 During a weekend in 1996, Applicant had an argument with her 16-year-old 
daughter. Applicant admits that she hit her daughter, who called the police. Applicant 
was arrested on a charge of domestic assault. She remained in jail over the weekend 
until court was in session on Monday. She admitted her actions to the judge, and he 
dismissed the case. (GE 4; Tr. 30-32)  
 
 In 1998, Applicant was at a nightclub on a weekend with a friend. When they left, 
the friend saw her boyfriend in a car with another woman. She went to the car and used 
a broken bottle to puncture the tire. The other woman started fighting with Applicant's 
friend, and Applicant went to her friend’s aid. When the police arrived on the scene, they 
thought Applicant and/or her friend had a knife. They arrested the three women on 
charges of Assault/Dangerous Weapon. Applicant denied that she or anyone else had a 
knife. She was incarcerated until Monday morning, when she appeared in court and the 
case was dismissed, or in the local court’s terminology, “No papered.” Applicant testified 
that “…I guess I’ve just been so stupid getting involved in other people’s stuff.” (GE 2, 3; 
AE A; Tr. 34-37) 
 
 Applicant was involved in an incident in 2002, when she was visiting a close 
friend, who was the godmother of her son. While in a back room of her friend’s home, 
Applicant heard her friend open the front door and then start arguing with another 
woman. The other woman stabbed Applicant's friend. Applicant called for an 
ambulance, and a neighbor called the police. When they arrived, Applicant was holding 
her injured friend, and there was blood on her. Applicant testified that …”[name], she 
started falling out. I wouldn’t leave. I’m not going to leave from my friend.” The police 
could not be sure who had attacked Applicant's friend, and arrested both Applicant and 
the other woman. The charge against Applicant was Simple Assault/Domestic. Later, 
when the police interviewed Applicant's friend at the hospital, she informed them that it 
was not Applicant but the other woman who had assaulted her. The police interviewed 
Applicant and then released her. She did not spend time in jail, and was not required to 
appear in court. The charge was “no papered.” (GE 2, 3; AE B; Tr. 37-43) 
 
 Applicant's neighbor is a middle-aged man who is physically and mentally 
impaired. He had been cared for by his aunt. In 2004, before she died, the aunt asked 
Applicant to care for her nephew, because his family would not. From 2004 to 2006, 
Applicant took care of him without financial assistance. She became his legal guardian 
in 2006, and now receives monthly Social Security disability payments to help support 
him. He is 58 years old and resides in House B, next door to Applicant’s home, House 
A. She owns both houses. Applicant also took care of her brother’s two children after he 
was murdered. She took care of them from 2003 to 2004 until their mother was 
financially able to support them. (GE 2; Tr. 44, 46) 
 
 
 
4 
 
 
 In 2004, police received reports of illegal drug activity in House B. as Applicant 
and her husband owned both House A and House B, the police investigated both 
houses. Applicant allowed the police to search her home, where they found a gun, 
ammunition, and a bag of marijuana. Applicant admits that the ammunition was hers. As 
part of her job as a security officer, Applicant is required to be proficient in shooting. She 
has a license for the gun she uses in her job, which is stored at her work site. She 
practices regularly at a firing range, where she rents a gun. Around the time of this 
event, she had been practicing at a firing range. She had excess ammunition, and 
decided to bring it home because she was planning to go back and practice again in a 
few days. She was aware that it was illegal to have the ammunition in her home, and 
admitted at the hearing that it was wrong to bring it home. (GE 2; AE C; Tr. 43-49) 
 
 The gun and marijuana belonged to Applicant's son. She was not aware that he 
had them in the house. Her son had a history of using and selling marijuana, and was 
involved in illegal drug activities since the age of 16. At the time of her security interview 
in late 2007, Applicant's son was serving a six-year jail sentence for possessing an 
unregistered weapon and distributing illegal drugs. At the time of the hearing, he had 
just been released. At her security interview, she told the agent that she would not allow 
her son to live with her in the future. (GE 2; Tr. 49-51) 
 
 As a result of the police search, Applicant and her husband were arrested and 
charged with having an unregistered gun, unregistered ammunition, and possession of 
cannabis. They spent the night in jail and appeared in court, without counsel, the next 
day. The charges were listed as “unregistered gun; ammunition violation.” The case was 
“no papered.” Applicant and her husband did not have the services of an attorney. (GE 
2, 3; AE C; Tr. 52-53) 
 
 Applicant disclosed on her security clearance application that she was terminated 
from a job in 2004. Several events were occurring at that time: her car needed repairs 
because her husband had left her and had taken the better car; she wished to attend 
her grandfather’s funeral in another state; and she needed dental surgery. Applicant 
discussed these issues with her supervisor, and showed him the paperwork about her 
surgery. She asked if she could add some additional unpaid leave to her two weeks 
vacation. He denied the unpaid leave. She took the vacation time, but called to tell him 
that she could not get back by the end of her vacation because of the car problems. He 
said that if she took additional time, she would be terminated. When she returned one 
day late, the supervisor told her to leave. Her current employers are aware of this 
termination. (GE 2; Tr. 23-26) 
 
 Applicant’s 2006 security clearance application contained questions about her 
criminal record. Specifically, three questions asked whether she had ever been charged 
with or convicted of a firearms offense; ever been charged with or convicted of a drug-
related offense; or been arrested, charged, or convicted of any other offense within the 
previous seven years. Applicant answered “No” to these questions. In her security 
interview, and at the hearing, Applicant stated that thought these questions were 
 
 
5 
 
 
                                                          
concerned with convictions. As each of her cases was dismissed, Applicant believed 
that she had no convictions to disclose. She testified,  
 
I just didn’t understand…And I didn’t know that charge is – I thought 
charge is something you charge and it’s on your record, and you went to 
court and everything. I didn’t go all through court.  
 
She also stated that she only learned that she was charged when the security agent 
explained it to her. Applicant testified,  
 
And I told her I didn’t know. I said, ‘What – what do you mean charge? I 
was never charged.’ I kept saying that. And she said, ‘You were charged 
because you was [sic] arrested.’  
 
Applicant provided court documents at the hearing that showed the charges and 
disposition in the 1998, 2002, and 2004 incidents. They explained the distinction 
between an arrest and a conviction, and the meaning of an arrest record. Applicant 
obtained these documents in November 2009. (GE 2; AE A, B, C; Tr. 59-63) 
 
Policies 
 
Each security clearance decision must be a fair, impartial, and commonsense 
determination based on examination of all available relevant and material information, 
and consideration of the pertinent criteria and adjudication policy in the AG.5 Decisions 
must also reflect consideration of the factors listed in ¶ 2(a) of the Guidelines, commonly 
referred to as the “whole-person” concept.  The presence or absence of a disqualifying 
or mitigating condition is not determinative of a conclusion for or against an applicant. 
However, specific applicable guidelines are followed whenever a case can be measured 
against them, as they represent policy guidance governing the grant or denial of access 
to classified information. In this case, the pleadings and the information presented by 
the parties require consideration of the security concerns and adjudicative factors 
addressed under Guidelines J and E. 
 
A security clearance decision is intended only to resolve whether it is clearly 
consistent with the national interest6 for an applicant to either receive or continue to 
have access to classified information. The Government bears the initial burden of 
producing admissible information on which it based the preliminary decision to deny or 
revoke a security clearance for an applicant. Additionally, the Government must be able 
to prove controverted facts alleged in the SOR. If the Government meets its burden, it 
then falls to the applicant to refute, extenuate or mitigate the Government’s case.  
 
5 Directive. 6.3. 
 
6 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 
 
 
 
6 
 
 
                                                          
Because no one has a “right” to a security clearance, an applicant bears a heavy 
burden of persuasion.7 A person who has access to classified information enters into a 
fiduciary relationship with the Government based on trust and confidence. Therefore, 
the government has a compelling interest in ensuring that each applicant possesses the 
requisite judgment, reliability and trustworthiness of one who will protect the national 
interests as his or her own. The “clearly consistent with the national interest” standard 
compels resolution of any reasonable doubt about an applicant’s suitability for access in 
favor of the Government.8 
 
Analysis 
 
Guideline J, Criminal Conduct 
 
 AG ¶ 30 describes the security concern under this guideline: 
  
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. 
 
The following disqualifying conditions apply under AG ¶ 31:  
 
(a) a single serious crime or multiple lesser offenses;  
 
(c) allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted. 
 
Between 1996 and 2004, Applicant was charged with several crimes including 
domestic assault, assault with a dangerous weapon, and firearms and drug possession. 
For the domestic assault charge in 2002, she was questioned and released. In the other 
instances, she admits that she spent a night or two in jail awaiting a court appearance. 
All charges were “no papered” or dismissed. AG ¶ 31 (a) and (c) apply. 
 
Two mitigating conditions are relevant under 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; and  
 
(d) there is evidence of successful rehabilitation; including but not limited 
to the passage of time without recurrence of criminal activity, remorse or 
7 See Egan, 484 U.S. at 528, 531. 
 
8 See Egan; Adjudicative Guidelines, ¶ 2(b). 
 
 
7 
 
 
restitution, job training or higher education, good employment record, or 
constructive community involvement. 
 
AG ¶ 32 (a) applies. The most recent event occurred in 2004, six years ago, and the 
most distant in time occurred in 1996, 14 years ago. In one event, Applicant committed 
assault, when she hit her daughter. However, Applicant is now 14 years older, her 
daughter is an adult, and Applicant has only one son to care for, all facts that indicate 
similar circumstances are unlikely to recur. In two other criminal incidents, Applicant 
was not the key player, but simply sought to help friends, which reflects well on her 
character. AG ¶ 32 (d) is relevant because there is no evidence Applicant engaged in 
criminal conduct, or has even been present when others engaged in criminal conduct, in 
the past six years. In the instance where she did violate a local law by storing her 
ammunition in her home, she admitted that she was wrong to do it, and there is no 
evidence that she has repeated that action since 2004. Her statements and conduct 
show rehabilitation, and AG ¶ 32(d) applies. 
 
Guideline E, Personal Conduct 
 
The security concern under the personal conduct guideline is that  
 
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. (AG ¶ 15) 
 
The facts presented support application of the following disqualifying condition under 
AG ¶ 16: 
 
(a) deliberate omission, concealment, or falsification of relevant facts from 
any personnel security questionnaire, personal history statement, or 
similar form used to conduct investigations, determine employment 
qualifications, award benefits or status, determine security clearance 
eligibility or trustworthiness, or award fiduciary responsibilities; and 
 
(d) credible adverse information that is not explicitly covered under any 
other guideline and may not be sufficient by itself for an adverse 
determination, but which, when combined with all available information 
supports a whole-person assessment of questionable judgment, 
untrustworthiness, unreliability, lack of candor, unwillingness to comply 
with rules and regulations, or other characteristics indicating that the 
person may not properly safeguard protected information. This includes 
but is not limited to consideration of: (1) untrustworthy or unreliable 
behavior…  
 
 
8 
 
 
 
The SOR alleges that Applicant deliberately falsified information she provided on 
her 2006 security clearance application, which implicates AG ¶ 16(a). She was involved 
in four criminal incidents. She spent one or two nights in jail and appeared in court in 
relation to three of these events. The charges were dismissed in all four cases. 
Applicant answered “No” on the application because she misunderstood the term 
“charge.” It appears that she conflated the meaning of the terms “charge” and 
“conviction” and believed a “charge” only existed if a judge found a person guilty in 
court. Because the judge dismissed each of her cases, and she was never found guilty, 
she believed she had nothing to disclose. Applicant did not have the services of an 
attorney in these cases to explain the implications of these events or the meaning of the 
terms. She did obtain court documents that explained the legal terminology, but she did 
not have these documents until 2009, almost three years after she completed her 
security clearance application. Moreover, Applicant disclosed negative information on 
her application, including her termination from a job, and a financial delinquency. Based 
on these disclosures, as well as Applicant's statements and demeanor at the hearing, I 
find her explanation credible. As Applicant did not deliberately falsify her responses, no 
mitigation is required concerning falsification. 
 
Applicant was terminated from a job in 2004 because she took unapproved 
leave, which implicates disqualifying condition AG ¶ 16 (d) (1). The following mitigating 
condition under AG ¶ I7 is relevant to Applicant's job termination: 
 
(c) the offense is so minor, or so much time has passed, or the behavior is so 
infrequent, or it happened under such unique circumstances that it is unlikely to 
recur and does not cast doubt on the individual's reliability, trustworthiness, or 
good judgment.  
 
Applicant's was experiencing a confluence of several stressful events at the time, 
including a medical condition requiring surgery, a car that required repairs and was 
unreliable, and the death of a family member that required out-of-state travel. It is 
unlikely that such a unique set of circumstances will recur. Moreover, she acted 
responsibly by requesting the time in advance from her supervisor, and documenting 
her medical condition. Six years have passed since this termination and the record 
shows no recent indication of work-related problems that would raise questions as to 
her reliability or trustworthiness. AG ¶ 17 (c) applies. 
 
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s security eligibility by considering the totality of the applicant’s conduct and all 
the relevant circumstances. I have evaluated the facts presented and have applied the 
appropriate adjudicative factors under the cited guidelines. I have also reviewed the 
record before me in the context of the whole-person factors listed in AG ¶ 2(a):  
 
 
 
9 
 
 
(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. 
 
AG ¶ 2(c) requires that the ultimate determination of whether to grant a security 
clearance be an overall commonsense judgment based upon careful consideration of 
the guidelines and the whole-person concept. Under the cited guidelines, I considered 
the potentially disqualifying and mitigating conditions in light of all the facts and 
circumstances surrounding this case. 
 
Applicant used poor judgment when she struck her teenaged daughter during a 
heated argument. However, that conduct occurred 14 years ago, and Applicant was 
candid in admitting the conduct. She also admitted that she should not have brought 
home the ammunition she intended to use in future target practice, required for her job. 
The most serious charges related to drug and gun possession. However, these charges 
were dismissed because they related not to Applicant's actions, but her son’s. Two 
other criminal events, the most recent of which was six years ago, involved Applicant 
helping friends who were in trouble. Applicant misunderstood the questions on her 
security clearance application about criminal conduct, and credibly testified that she 
believed she was not required to report events that had been dismissed by a judge.  
 
Applicant has also demonstrated maturity and character through her willingness 
to take in her brother’s children when their mother was financially unable to do so; and 
by taking legal and financial responsibility for a neighbor when his family refused to do 
so. The record also shows that Applicant has provided more than a decade of service to 
the federal government through her employment with defense contractors.  
 
For all these reasons, I conclude Applicant has mitigated the cited security 
concerns. A fair and commonsense assessment of the available information bearing on 
Applicant’s suitability for a security clearance shows she has satisfied the doubts raised 
under the guidelines for criminal conduct and personal conduct.  
 
Formal Findings 
 
 Formal findings on the allegations set forth in the SOR, as required by section 
E3.1.25 of Enclosure 3 of the Directive, are as follows: 
 
Paragraph 1, Guideline J:   FOR APPLICANT 
 
  Subparagraphs 1.a. – 1.e.  For Applicant 
 
 
10 
 
 
 
 Paragraph 2, Guideline E    FOR APPLICANT 
 
  Subparagraphs 2.a. – 2.e.  For Applicant 
 
Conclusion 
 
 In light of all of the foregoing, it is clearly consistent with the national interest to 
allow Applicant access to classified information. Applicant’s request for a security 
clearance is granted. 
 
 
 
 
_  
RITA C. O’BRIEN 
Administrative Judge