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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 09-06171
SSN: --------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Gregg A. Cervi, Esq., Department Counsel
For Applicant: Pro se
                                                                            
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Decision
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LYNCH, Noreen, A. Administrative Judge:
On May 17, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) enumerating security concerns arising 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). 
On May 25, 2010, Applicant answered the SOR and requested a hearing. DOHA
assigned the case to me on July 19, 2010. DOHA issued a Notice of Hearing on August
16, 2010, and I convened the hearing on September 16, 2010. Department Counsel
offered six exhibits, which were admitted as Government Exhibits (GE) 1-6. Applicant
testified and submitted eight exhibits marked Applicant Exhibits (AE) A-H. DOHA
received the transcript on September 23, 2010. Based on a review of the case file,
pleadings, exhibits, and testimony, eligibility for access to classified information is
granted.
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Findings of Fact
In his answer to the SOR, Applicant denied the factual allegations under
Guideline J (Criminal conduct) with explanation. Applicant did not dispute the fact that
he was arrested in August 2008. 
Applicant is a 23-year-old employee of a defense contractor. He graduated from
high school in 2005, and enlisted in the Army National Guard (ANG). Applicant
attended college courses and trained in Emergency Medical Training (EMT) for which
he received a diploma. (Tr. 39) He has worked for his current employer since May
2009. 
Applicant served on active duty while in the ANG. In December 2006, Applicant
married while home on leave from a deployment in Iraq. He was 19 years old. He and
his wife had a son. Applicant was away on active duty for most of the marriage, which
caused a great deal of stress in the marriage. He served in Iraq from August 2006 until
August 2007. (GE 1)
Applicant worked a full-time and a part-time job to support his wife and son. In
addition to his job as an instructor for the Army, he worked as an ambulance worker.
His wife argued about not having sufficient money. She refused to look for a job outside
the home. (Tr. 18) When any discussion would arise about money issues, Applicant’s
wife would verbally abuse him and accuse him of not “being worth anything.” (Tr. 18)
In February 2008, Applicant and his wife argued about his treatment of the family
dog. Applicant was outside giving the dog a bath. His wife believed that he was hurting
the dog. They had previously been arguing for two days. Applicant stated that his wife
struck him in the kidney and on the back of the head. Applicant’s wife left the home for
a few hours after the alleged incidents. She returned home and all returned to normal.
(GE 2)
The following day, Applicant’s wife called the police. She alleged that she was
fearful of Applicant. She claimed she was also concerned about the safety of their
baby. She did not allege that there had been any physical altercation. The police
provided her with a domestic violence packet. (GE 3) Applicant had no idea that his wife
had called the police. (Tr. 17) 
When Applicant returned home from work that day, he found an empty house.
His wife took all the furniture and their son and moved out of the home. He called the
police and learned about the complaint of domestic violence. He also filed a complaint
against his wife. (Tr.40) No criminal charges occurred as a result of the February 2008
incident.
During the marriage, Applicant learned that his wife lied to him about several
things. She told him that her mother had given them a $750 check to help with
household expenses. Applicant later learned from his mother-in-law that Applicant’s
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wife had stolen the check. Applicant tried to get his wife to go to marriage counseling,
but she would not go. Applicant also learned that his wife was not paying the household
bills, but the money was missing from their account. (Tr. 20).
Applicant’s wife moved back in with Applicant after the February incident. On
August 25, 2008, Applicant’s wife filed a criminal complaint against Applicant. (GE 4)
She alleged that she and her husband were involved in a physical altercation in their
home on August 17, 2008. She alleged that Applicant held her against a wall while she
was holding their baby. She alleged violence in the past. (GE 5) 
Applicant reported that his wife was verbally abusive to him. He was upset and
asked her to leave the house. Applicant acknowledged that he was so upset that he
stated “he could just kill himself.” At that point, he remembered that he had his gun on
the night stand in the bedroom. He put the gun away at that point. She returned to the
home later that night. Applicant denies ever squeezing her neck. (GE 4) He
acknowledged that he put a hand on her chest to push her away from him. He left the
room at that point, but she followed him. She continued to yell at him. 
The police report that was taken on August 25, 2008, was the first time that
Applicant’s wife called about the incident on August 17, 2008. She claimed that she
was too scared to call. (Tr. 57) The police report notes that Applicant’s wife had no
physical marks on her or any bruises consistent with earlier marks. 
Approximately two weeks later, Applicant was arrested and charged with
aggravated battery against his wife, false imprisonment, and battery against his wife.
He served five days in jail waiting for the arraignment. During that time his spouse
dropped a request for a restraining order against him and recanted the allegations. The
state pursued two charges and dropped two charges. The aggravated battery was not
prosecuted. Applicant was given the Pre-Prosecution Diversion program. He completed
the program in March 2010. His participation in the diversion program was voluntary. He
reported twice a month, received counseling, and gave drug samples. (Tr. 82)
Applicant and his wife separated in August 2008. In September 2008, Applicant’s
wife recanted her story about the incident in August 2008. She affiremd that she was
very upset with Applicant and exaggerated the facts. She did not want to testify under
oath against her husband. Specifically, she stated that Applicant was not trying to hurt
her. In fact, he wanted her to leave so he could cool down. She also stated that he did
not harm her in any way and tried to get her to leave so that nothing would happen. She
knew they needed marriage counseling. (AE A) Applicant agreed to marriage
counseling. He wanted to reconcile, but his wife was now pregnant with someone else’s
child. 
Applicant filed for divorce in June 2009. The divorce was finalized on June 24,
2009. Applicant has joint custody of his two-year-old son. He is living in a different state.
He is on speaking terms with his ex-wife. 
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At the hearing, Applicant stated he understood that the pressure of the marriage
caused the arguing and the domestic disputes to occur. He commented that he is used
to pressure from the Army but he had a difficult time when his wife would call him
names and belittle him as a father. He would “lose his cool.”  He knows how to handle
himself properly now and realized that getting married while on deployment may not
have been the best idea.  
Applicant is a member in good standing of the State National Guard. He
complies with his reserve commitment and is loyal, dedicated, enthusiastic, and a
sincere professional. (AE G) He did some active duty in May 2008 until his current
employment. (Tr. 32) He was an instructor in the Warrior Transition Program. (Tr. 32)
He is in the inactive reserve and hopes to enter the military as a career.
Applicant received an Air Medal, Operation Iraqi Freedom Campaign Medal,
Joint Service Achievement Medal, Army Achievement Medal (3), National Defense
Ribbon, Global War on Terrorism Medal and two National Guard state awards. In total,
he believes he has earned 15 medals. (Tr. 37) 
Applicant’s pastor counseled him and recommended him as a mature person.
Applicant has learned to handle emotional issues in a healthy way. He has taken anger
management classes with the VA. He voluntarily completed a six-week session. (Tr.
33). His pastor commends Applicant for the work he is doing in the church youth
ministry. (AE D) His pastor reports that Applicant is a great father who is striving to
provide a good life for his son. Applicant’s pastor sees him regularly and describes him
as steady, stable, responsible and trustworthy. He believes he has a bright future. 
Applicant’s supervisor describes him as well qualified and calm in his work
environment. Applicant handles stress and has not lost his temper. He is reliable and is
a valued instructor in the section. (AE E)
Applicant’s friends describe him as a caring father.  He is also a combat veteran
who strives to be perfect. Applicant’s wife is described as a manipulator who lies. (AE
F) Applicant’s close friend is aware of several times that Applicant’s wife has not told all
relevant facts about a situation.
He also achieved the status of Senior Instructor with the Army in July 2010. His
performance and contributions are significant. (AE H) Applicant shows initiative,
personal interest, and professional competence in his work. 
Policies
When evaluating an applicant’s suitability for a security clearance, an
administrative judge must consider the adjudicative guidelines (AG). In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions. These guidelines are not inflexible
rules of law. Instead, recognizing the complexities of human behavior, they are applied
in conjunction with the factors listed in the adjudicative process. An administrative
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      1
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).      2
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      3
 See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive      4
information), and EO 10865 § 7.
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      5
 Id.      6
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judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision.
Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables
known as the “whole-person concept.” An 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.
The United States Government must present evidence to establish controverted
facts alleged in the SOR. An 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 burden of proof is something less than a1
preponderance of evidence.  The ultimate burden of persuasion is on the applicant.  2 3
A person seeking access to classified information enters into a fiduciary
relationship with the Government based on 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 classified information. Such
decisions entail a certain degree of legally permissible extrapolation of 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.”  “The clearly consistent standard indicates that security clearance4
determinations should err, if they must, on the side of denials.”  Any reasonable doubt5
about whether an applicant should be allowed access to sensitive information must be
resolved in favor of protecting such information.  The decision to deny an individual a6
security clearance does not necessarily reflect badly on an applicant’s character. It is
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merely an indication that the applicant has not met the strict guidelines the President
and the Secretary of Defense established for issuing a clearance.
Analysis
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining 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.”
AG ¶ 31 describes conditions that could raise a security concern and may be
disqualifying:
(a) a single serious crime or multiple lesser offenses;
(b) discharge or dismissal from the Armed Forces under
dishonorable conditions;
(c) allegation or admission of criminal conduct, regardless of
whether the person was formally charged, formally
prosecuted or convicted;
(d) individual is currently on parole or probation; and
(e) violation of parole or probation, or failure to complete a
court-mandated rehabilitation program.
Applicant’s involvement in domestic disputes in 2008, and the criminal charges
filed in 2008 are sufficient to raise AG ¶¶ 31(a) and 31(c). 
AG ¶ 32 provides conditions that could mitigate security concerns:
(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;
(b) the person was pressured or coerced into committing the
act and those pressures are no longer present in the
person's life;
(c) evidence that the person did not commit the offense; and
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(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.
After reviewing the mitigating conditions, I find that Applicant has mitigated the
security concerns. He is now divorced from his wife. He has joint custody of his young
son. He has completed his diversion program. He attended anger management
classes. He has character and employment references. The domestic violence was an
isolated incident in 2008. His wife recanted the allegations in the August 2008
complaint. Applicant volunteers in his church. He has had pastoral counseling. He has
shown insight into the past behavior. 
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 an 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 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. As noted above, the
ultimate burden of persuasion is on the applicant seeking a security clearance. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the “whole-person”
factors. Applicant is 26. He is a combat veteran who has served in Iraq. He married at a
very young age and had a difficult marriage. He is now divorced and lives in another
state. He had counseling and anger management classes. He is a valued member of
his team at work. He has matured and was very straightforward at the hearing. He
presented well and appears to have his son’s interests at heart. He acknowledges that
he was young and probably should not have married when he did. He has learned from
his past. He wants to provide a home and a stable life for his son. Applicant’s charges
were dismissed. The domestic dispute was an isolated event in his life. He is now
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working in a stable employment. He appears motivated and sincere in his desire to
serve his country and his family.
I find his reasons and explanations credible for the domestic disputes and the
resulting behavior. Accordingly, Applicant has mitigated the security concerns under the
above-referenced guideline. Clearance is granted. 
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 through 1. b: 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 a security clearance.
Clearance is granted.
                                                     
NOREEN A. LYNCH.
Administrative Judge