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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------ )       ISCR Case No. 08-03938
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: D. Christopher Russell, Esquire
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Decision
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CURRY, Marc E., Administrative Judge:
From 1982 through 1992, Applicant committed multiple serious crimes including,
among other things, burglary, and possession of marijuana. Since his release from
prison in 1997, he has been a model citizen, excelling on the job, raising his family,
earning a college degree, and volunteering in the community. Applicant has mitigated
the Criminal Conduct security concern. Clearance is granted.
Statement of the Case
On April 30, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant detailing security concerns 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 adjudicative guidelines
(AG) effective within the Department of Defense on September 1, 2006.
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Applicant answered the SOR on June 18, 2009, admitting all of the allegations,
and requesting a hearing. The case was assigned to another administrative judge, who
scheduled it for December 9, 2009. Because of unexpected circumstances, the case
was continued, then reassigned to me on December 15, 2010. On January 13, 2010, a
notice of hearing was issued rescheduling the case for February 3, 2010. The hearing
was conducted as rescheduled. I received five Government exhibits, 18 Applicant
exhibits, and the testimony of Applicant and two supporting witnesses. The transcript
(Tr.) was received on February 16, 2010.
Findings of Fact
Applicant is a 46-year-old married man with two children, ages five and 14. He
has been married since 1998. He and his wife had their first child before they got
married.
Applicant had a rough childhood. (Tr. 76) He did not know his father until later in
life, and he was an eighth-grade dropout. (Tr. 49, 78) Although Applicant eventually
earned a GED, he gravitated toward crime as he reached his late teens.
In 1982, Applicant stole a checkbook from a neighbor and forged a check.
Subsequently, he was arrested and charged with forgery. He pleaded guilty, and was
ordered to pay restitution, sentenced to three years of probation, and ordered to pay
court costs. (Answer)
In 1983, Applicant broke into a used car lot, stole the company’s safe, and
attempted to break it open. He was arrested, charged with uttering, breaking and
entering, safecracking, and burglary. (Answer) He was convicted and sentenced to six
to 25 years incarceration. (GE 5 at 14; Tr. 83) He was released after serving two and a
half years.
In 1985, the Department of the Army conducted an investigation into allegations
that Applicant was selling marijuana to soldiers at a video arcade off base. (GE 1; Tr.
86) As part of the investigation, Applicant sold some marijuana to an undercover military
police investigator. (Tr. 86) At the conclusion of the investigation, the Department of the
Army referred the case to the local authorities. (GE 1 at 3) There is no record of whether
Applicant was charged criminally.
In 1986, Applicant got into a scuffle with an individual after an evening house
party. (Tr. 88) The scuffle spilled out of the home and into the street, ending when
Applicant was pushed through the door of a neighborhood church. (Tr. 88) Applicant
was arrested and charged with criminal trespass and aggravated criminal damage. (Tr.
89) The disposition of this case is unknown from the record.
In October 1986, the police apprehended Applicant while he was attempting to
break into a store. (GE 5 at 10) He was arrested and charged with burglary. (Tr. 93) He
was convicted and sentenced to 12 months of intensive probation. (Tr. 93) Under the
 Under the prison regulations where Applicant was incarcerated, inmates were not allowed to have rolls of1
quarters in excess of $10. Applicant was caught with rolls of quarters totaling $100. (Tr. 112)
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terms of probation, Applicant was prohibited from going anywhere other than work and
home. Applicant violated the terms of the probation, and failed to appear at a status
hearing. The court then ordered him to serve the remainder of the term in jail. (Tr. 97,
111)
While in jail, Applicant was charged with promoting prison contraband, a felony.1
(Tr. 95) He was found guilty and sentenced to serve one additional year in prison. (GE 4
at 3; GE 5 at 20; Tr. 95)
In December 1991, Applicant sold 39 grams of marijuana to an undercover
military police investigator. (AE 2 at 2) Approximately two weeks later, he called the
investigator and asked if he wanted to purchase some more marijuana. They then met,
and Applicant sold him 59 grams of marijuana. (Id. at 6) After scientific tests confirmed
that the substance Applicant sold the agent was marijuana, the Department of the Army
closed the case and referred it to the local police department. (Id. at 8)
In April 1992, the police, based upon a tip from an informant that Applicant was
“hauling marijuana,” stopped him and asked to search his car. (Tr. 98) He refused, and
they brought in a drug sniffing dog that “hit on the smell of marijuana.” (Tr. 99) After a
brief struggle with Applicant, the police then searched the car and discovered a quarter
ounce of marijuana and some rolling papers. (GE 5 at 9; Tr. 99) Applicant was then
arrested and charged with sale of marijuana, possession of marijuana, resisting arrest,
aggravated assault of a police officer, and possession of drug paraphernalia. 
While these charges were pending, Applicant was charged with wrongful
distribution/possession of marijuana related to his selling marijuana to an undercover
military investigator in December 1991. (Tr. 101) The court consolidated both cases.(GE
5 at 27)
In September 1992, Applicant was convicted of the sale of marijuana and
aggravated assault of a police officer. The court dismissed the other charges. Applicant
was released from custody pending sentencing.
Applicant fled the state before the sentencing hearing. (Tr. 102) In 1995, he was
extradited to the state where he committed the crimes. The court then sentenced him to
3.75 years incarceration. Ultimately, he served 11 months, from September 1996 to
August 1997, in a minimum security drug rehabilitation complex. (AE 3 at 29).
After serving his sentence, Applicant took a job as a hotel proprietor. Late one
night, a woman came to the hotel and asked to reserve a room under someone else’s
name. (Tr. 70) Applicant refused, and the woman left. Approximately 30 minutes later,
the police arrived and told Applicant that the woman had accused him of groping her.
Applicant denied the allegation, but was later charged with sexual abuse. (Tr. 72) The
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accuser then moved without providing the prosecutor any forwarding information,
prompting him to file a motion for dismissal. (GE 5 at 29) The court granted the motion
and dismissed the case. I find Applicant did not commit the crime, as charged.
Applicant has not used any illegal drugs, nor engaged in any other criminal
behavior since 1995. (GE 5 at 10) Also, he has “eliminated everybody from [his] past
from [his] life.” (Tr. 79)
Applicant earned an associate’s degree in applied science in 2004. (AE Q) One
of his professors characterized him as a “motivated, intelligent, hardworking individual;
in short, a model student.” (AE C) Applicant earned a bachelor’s of science degree in
applied science in 2008. (AE N) His grade point average was a 3.3. (AE P)
Applicant has worked in the information technology field since 2004. In 2006,
Applicant began working for a defense contractor as a network administrator on a
military base. He is responsible for equipment, network switches, and routers for more
than 300 buildings and 700 customers. (AE E) According to his supervisor, he has high
morals, and performs all of his duties at or above average. (AE C) He has held an
interim security clearance for more than three and a half years.
According to another senior-level administrator, Applicant constantly “strives to
better his education.” (AE D) Since 2003, he has earned 22 network administration
certifications. (AE O)
One of Applicant’s college professors testified. (Tr. 26) He taught Applicant two
routing classes and one ethics class. (Tr. 26) He became increasingly interested in
Applicant’s career path after Applicant shared his troubled past with him. Applicant
obtained the job on the military base, in part, from following the advice of this professor.
(Tr. 32) Having observed Applicant’s academic and professional growth, and evaluated
him in his ethics class, the professor considers Applicant to be a trustworthy individual
who “deserves a second chance.” (Tr. 35)
Applicant is active in the community. He volunteers for a program in which
neighbors clean up debris and trash from local highways. (AE K) As the lead volunteer,
he is responsible for distributing orange vests and trash bags to the other volunteers.
(Id.) 
Policies
In addition to brief introductory explanations for each guideline, the adjudicative
guidelines list potentially disqualifying conditions and mitigating conditions, which are
required to be considered 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. According to AG ¶ 2(c), the entire process is a
conscientious scrutiny of a number of variables known as the “whole-person concept.”
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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.” 
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 for obtaining a favorable security
decision.
Analysis
Under this guideline, “criminal activity creates doubt about a person’s judgment,
reliability, and trustworthiness” (AG ¶ 30). Also, “by its very nature, it calls into question
a person’s ability or willingness to comply with laws, rules, and regulations” (Id.).
Applicant’s ten-year history of criminal behavior including drug dealing and burglary,
triggers the application of AG ¶ 31(a), “a single serious or multiple lesser offenses.” 
Applicant has not committed a crime in nearly 15 years. Since then, he has
completed court-ordered drug rehabilitation, gotten married, and graduated from college
with honors. In the process of developing a career as a network analyst, he has
obtained multiple training certifications. He has held an interim security clearance for the
past three and a half years, without incident, while working on a military base. Also, he
is a civic-minded individual who volunteers in his community. AG ¶¶ 32(a), “so much
time has elapsed since the criminal behavior happened . . . that it is unlikely to recur
and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment;
and, 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,” apply.
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. 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
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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.
For ten years between 1982 and 1992, Applicant violated the law with impunity. I
was particularly troubled by his drug dealing on a military base, and his fleeing the state
after a 1992 conviction. 
Applicant has not committed a crime in more than 15 years. Since then, he has
been a model citizen, working hard to advance his career, educating himself, raising his
family, and volunteering in the community. Consequently, the serious and repetitive
nature of his criminal conduct is outweighed by the presence of rehabilitation, the
remoteness of the conduct, and his demonstrated maturity. I conclude that the
possibility of recurrence is minimal, and that Applicant has mitigated the security
concern. In reaching this conclusion, I found the testimony of his ethics professor to be
particularly persuasive.
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 - 1.i: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is granted.
                                             
MARC E. CURRY
Administrative Judge