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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 09-07184
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
December 15, 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 February 7, 2008.  On May 17, 2010, the Defense Office of
Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the
security concerns under Guideline 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 acknowledged receipt of the SOR on May 19, 2010.  He answered
the SOR in writing on August 16, 2010, and requested a hearing before an
Administrative Judge.  DOHA received the request on October 14, 2010, and I received
the case assignment that same day.  DOHA issued a notice of hearing on October 19,
2010, and I convened the hearing as scheduled on November 3, 2010.  The
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Government offered Exhibits (GXs) 1 through 3, which were received without objection.
The Applicant testified on his own behalf and submitted Exhibits (AppXs) A and B,
which were received without objection.  DOHA received the transcript of the hearing
(TR) on November 12, 2010.  I granted the Applicant’s request to keep the record open
until December 3, 2010, to submit additional matters.  He submitted Exhibit C in a timely
fashion, which was received without objection. The record closed on December 7, 2010.
Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for
access to classified information is granted.
Findings of Fact
In his Answer to the SOR, the Applicant admitted all the factual allegations in the
SOR, with explanations.  He also provided additional information to support his request
for eligibility for a security clearance.
Guideline J - Criminal Conduct
The Applicant started to use methamphetamine in December of 1996.  (TR at
page 43 lines 8~21.)  His drug usage continued until “Mother’s Day of 2001,” when he
had an epiphany.  
My wife got up that morning, and she told me, my girlfriend at the time,
she got up that morning and she says she’s going to Church.  I said you’re
going to Church?  She said yes, it’s Mother’s Day.  I’ve been invited to a
Church.  So, I decided, you know, my thing was, I’m going to be honest
with you, I was going to walk her half way there and come back to get
high.  But walking with her, I walked all the way to the Church. . . and I
stayed. . . . I never used drugs again.  (TR at page 54 line 15 to page 55
line 14.)
Prior to this epiphany, the Applicant had four arrests, but no convictions, as
alleged and admitted to in response to the SOR.  In about 1997, a fellow drug abuser
needed some money for drugs; and as a result, offered the Applicant a bike for $45.
(TR at page 40 line 10 to page 43 line 6, see also page 25 at 19 to page 26 line 13.)  As
the bike was worth about $1,200, he admits he should have known that the bike was
stolen.  (Id.)  He was arrested for Receive Etc Known Stolen Property, spent 72 hours in
jail, but nothing further resulted from this arrest.  (TR at page 40 line 10 to page 43 line
6.)
In about 1999, the Applicant had consumed too much alcohol, and got into an
argument with the women who is now wife, when she was his girlfriend.  (TR at page 43
line 22 to page 47 line 14.)  The argument got physical when the Applicant pushed her.
(Id.)  He was arrested for Inflict Corporal Injury on a Spouse or Co-habitant.  (TR at
page 43 line 22 to page 47 line 14.)  Nothing further resulted as a result of the
Applicant’s actions, as attested to, not only by the Applicant, but by his wife.  (Id, and
TR at page 24 line 21 to page 25 line 18.)
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In August of 2000, the Applicant was unemployed, but was offered $2,500 if he
would “drive a car back across” the U.S./Mexican border.  (TR at page 47 line 15 to
page 51 line 24, see also page 21 line 14 to page 24 line 20.)  He was arrested at the
border for Alien Smuggling.  (Id.)  Prosecution was declined, after the Applicant spent
about six hours in jail.  (TR at page 47 line 15 to page 51 line 24, see also page 21 line
14 to page 24 line 20.)
In October of 2000, the Applicant was still unemployed, on drugs, and was
offered more money to drive another car back across the border.  (TR at page 51 line
25 to page 54 line 5, see also page 21 line 14 to page 24 line 20.)  He was again
arrested at the border for Alien Smuggling.  Prosecution was also declined, and this was
the last time that the Applicant had any run ins with the law.  In fact, he now works in
physical security and law enforcement.  (Id, TR at page 55 line 19 to page 58 line 7, and
AppX A.)
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
Counsel. . . .”  The Applicant has the ultimate burden of persuasion as to obtaining a
favorable security decision. 
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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 J - Criminal Conduct
Paragraph 30 of the 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.
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Subparagraph 31(a) provides that “a single serious crime or multiple lesser
offenses” may raise security concerns.  The Applicant has been arrested four times, the
last time in October of 2000.  Here, this is clearly countered by the mitigating condition
in Subparagraph 32(a) as “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.”  The Applicant’s arrests were more than ten years ago.  He has found
religion, as attested to by those that know him at his church (AppXs B and C), and the
root cause of his criminality, drug abuse, also ceased nearly ten years ago.
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
commonsense 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):
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(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 his community (AppXs A and B).  His Pastor avers, in part,
the following:
I have known . . . [the Applicant] for the last six years; he is my Bother-in-
Christ, and a real good friend.  We have shared many events together and
he has always carried himself like a Man of God, . . . [the Applicant] to me
is a hardworking, loving family man, and caring person who make (sic)
every effort to succeed in everything he puts his mind to.  He has been a
faithful member of . . . [his church] for the last ten years . . . .  (AppX B.)
The record evidence leaves me with no questions or 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 his Criminal Conduct, which
occurred more than a decade ago.
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
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.c: For Applicant
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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.
Richard A. Cefola
Administrative Judge