Authorized by DoD Directive 5220.6 (Directive), Section E3.1.2.2.1
 Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended.2
1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )
SSN: ----------------- )       ISCR Case No. 09-04819
)
)
Applicant for Security Clearance )
Appearances
For Government: Richard Stevens, Esquire, Department Counsel
For Applicant: Pro se
______________
Decision
______________
MALONE, Matthew E., Administrative Judge:
Based upon a review of the pleadings, exhibits, and transcript, Applicant’s
request for a security clearance is denied.
On January 24, 2008, Applicant submitted an Electronic Questionnaire for
Investigations Processing (e-QIP) to obtain a security clearance required for his job with
a defense contractor. After the ensuing background investigation was completed,
adjudicators for the Defense Office of Hearings and Appeals (DOHA) issued to
Applicant a set of interrogatories  to clarify or augment information in his background.1
After reviewing the results of the background investigation and Applicant’s responses to
the interrogatories, DOHA adjudicators were unable to make a preliminary affirmative
finding  that it is clearly consistent with the national interest to grant Applicant’s request2
 The adjudicative guidelines were implemented by the Department of Defense on September 1, 2006. These3
guidelines were published in the Federal Register and codified through 32 C.F.R. § 154, Appendix H (2006).
Pending official revision of the Directive, they take precedence over the guidelines listed in Enclosure 2 to the
Directive.
2
for a security clearance. On February 5, 2010, DOHA issued to Applicant a Statement
of Reasons (SOR) alleging facts which raise security concerns addressed in the
adjudicative guidelines (AG)  for personal conduct (Guideline E) and criminal conduct3
(Guideline J). 
Applicant timely answered the SOR, and requested a hearing. The case was
assigned to me on August 3, 2010. Pursuant to a Notice of Hearing issued on August 6,
2010, I convened a hearing in this matter on August 24, 2010. The parties appeared as
scheduled. The Government presented six exhibits (Gx. 1 - 6), which were admitted
without objection. Applicant testified and proffered five exhibits, which were admitted
without objection as Applicant’s Exhibits (Ax.) A - E. Additionally, I left the record open
after the hearing to give Applicant time to submit additional relevant information. The
record closed on September 8, 2010, when I received Applicant’s post-hearing
submission, which was admitted without objection as Ax. F. DOHA received the
transcript of hearing (Tr.) on September 14, 2010.
Findings of Fact
Under Guideline E, the Government alleged that in July 1991, Applicant was
charged with assault with a deadly weapon and with intent to kill or inflict serious injury
(a felony), and that he was convicted and sentenced to three years in prison (SOR 1.a);
that in November 1991, he was charged with attempted robbery with a dangerous
weapon (a felony), that he pleaded guilty to a lesser charge of attempted common law
robbery (also a felony), and that he was sentenced to three years in prison (SOR 1.b).
The Government further alleged that in October 1992, Applicant was charged with and
convicted of misdemeanor larceny, for which he was sentenced to six months in jail and
two years of probation (SOR 1.c); that in April 1994, he was charged with taking
indecent liberties with a child (a felony), and that he was convicted and sentenced to
three years in prison (SOR 1.d). In response to the SOR, Applicant denied SOR 1.c,
and admitted SOR 1.a, 1.b, and 1.d.
The Government also alleged under Guideline E that in December 1995,
Applicant was charged with assault on a female, was convicted, sentenced to 45 days
in jail, and placed on probation for 12 months (SOR 1.e); and that in April 1997,
Applicant was again charged with assault on a female, for which he was required to
attend a counseling program before the charge was dismissed (SOR 1.f). In response,
Applicant denied SOR 1.e and 1.f.
At SOR 1.g, the Government alleged that Applicant intentionally failed to disclose
in his e-QIP the arrests alleged at SOR 1.a - 1.f, as required by the questions in e-QIP
section 23 (Your Police Record). At SOR 1.h, the Government alleged that Applicant
intentionally failed to disclose, as required by the questions in e-QIP Section 28 (Your
Financial Delinquencies), that he had been 180 days past due on any debt in the
 See Directive E3.1.17.4
3
previous seven years, or that he was currently more than 90 days past due on any debt.
More specifically, the Government alleged that Applicant failed to disclose 12 delinquent
debts (SOR 1.h.1 - 1.h.12) totaling $6,063. In response to SOR 1.h itself, Applicant
admitted not listing any debts. In response to SOR 1.h.1 - 1.h.12, Applicant denied all
but SOR 1.h.12.
Under Guideline J, the Government cross-alleged at SOR 2.a, the arrests and
charges alleged at SOR 1.a - 1.d. The Government also cross-alleged at SOR 2.b, the
arrests at SOR 1.a - 1.f. Finally, the Government cross-alleged at SOR 2.c, Applicant’s
allegedly deliberate omissions from his e-QIP. If proven, such conduct is a violation of
18 U.S.C. § 1001, which makes it a crime to deliberately make a false statement or
representation to any department or agency of the United States concerning a matter
within its jurisdiction. Applicant’s answers to SOR 1.a - 1.f serve by reference as his
answers to SOR 2.a - 2.c. (Tr. 12 - 15)
At the close of the Applicant’s case, Department Counsel moved to amend the
SOR  by withdrawing the allegations at SOR 2.a and 2.b. Department Counsel also4
moved to amend the last sentence of the allegation at SOR 1.g by changing “sub-
paragraph 1.a” to “sub-paragraph 1.c.” Applicant did not object and I granted the
motions. (Tr. 87 - 94) In addition to Applicant’s admissions, and having reviewed
Applicant’s response to the SOR, the transcript, and exhibits, I make the following
findings of relevant fact. 
Applicant is 32 years old and has been employed since November 2007 by a
defense contractor as an automotive mechanic in support of Department of Defense
activities overseas. From June 2004 until October 2007, Applicant worked for another
defense contractor doing similar overseas work. He has worked as an automotive
mechanic since at least October 1999, when he was 26 years old. (Gx. 1; Gx. 2)
Applicant has been married twice. He and his current wife have been married
since August 2006. They have one child, who was born in April 2009. Applicant was
also married from August 1997 until June 2006, when the marriage ended by divorce.
Applicant had two children with his ex-wife. He also has another child from before his
first marriage. (Gx. 1; Tr. 65)
In 1991, Applicant was twice arrested and charged with felonies. In July that
year, at age 17, Applicant assaulted a police officer, who was questioning Applicant
about possibly being intoxicated. Although he was charged with doing so with a deadly
weapon, it appears that Applicant used only his fists to batter and injure the victim. In
November that year, at age 18, Applicant was accused of using a knife to steal jewelry
from a student at a local high school. A felony charge of attempted robbery with a
dangerous weapon was later amended to attempted common law robbery, also a
felony. Both the assault and armed robbery charges were adjudicated in a single court
action in March 1992, at which Applicant pleaded guilty to both charges. Applicant was
4
sentenced to three years in prison on each charge, but he was paroled in July 1994.
(Gx. 2; Gx. 3)
In September 1994, at age 20, Applicant was arrested and charged with taking
indecent liberties with a minor, a felony. He was dating a 16-year-old girl, whose mother
knew and approved of the relationship. However, when the girl became pregnant, her
grandfather went to the police and had charges filed. Applicant received a three-year
prison sentence, but was released for good behavior after eight months. (Gx. 2; Gx. 3;
Tr. 43)
In October 1992, Applicant and another man got into a fistfight at a local
nightclub. Applicant won the fight and, as an insult to the other man, decided to take the
NFL team jacket the other man was wearing. The next day, the other man swore out a
warrant charging Applicant with misdemeanor larceny. According to a summary of
Applicant’s June 10, 2009, subject interview, before the matter went to trial, Applicant
returned the jacket, the men resolved their differences, and the victim asked that the
charges be dismissed. (Gx. 2) At SOR 1.c, it was alleged that Applicant was convicted
of misdemeanor larceny, fined $250, and sentenced to six months in jail. A record of
arrests provided at this hearing (Gx. 3) did not reflect the arrest alleged at SOR 1.c.
Applicant’s first marriage was tumultuous. He and his ex-wife argued several
times, and Applicant’s ex-wife sometimes punched or kicked him. Whenever he pushed
her or otherwise made contact with her to defend himself or extricate himself from these
confrontations, his ex-wife would file assault charges against him. Applicant estimated
that this happened between five and ten times during their marriage. Except for one
occasion, in December 1995, his ex-wife had the charges dropped within a day or so.
(Gx. 2; Tr. 44 - 45, 67 - 69) In December 1995, after his ex-wife had him charged with
assault on a female, as alleged at SOR 1.e, Applicant pleaded guilty, was fined, and
placed on unsupervised probation. (Gx. 2) The record of arrests presented at hearing
(Gx. 3) does not reflect the December 1995 arrest alleged at SOR 1.e, but reflects the
April 1997 assault on a female charge (but no sentence) alleged at SOR 1.f. Applicant
denied that he served any jail time or attended counseling in either instance.
Available information shows that Applicant accrued at least $6,000 in delinquent
debt for 12 unpaid accounts (listed at SOR 1.h.1 - 1.h.12) between 2004 and 2007. (Gx.
5; Gx. 6) Nine of those accounts (SOR 1.h.3 - 1.h.11) were unpaid medical bills referred
to collection. Applicant testified that the debts were for services his medical insurance
did not cover. Two other debts (SOR 1.h.1 and 1.h.2) were for delinquent credit cards.
The twelfth debt was a bill for a mechanic’s tool set he financed in 2008. Applicant
disputes the validity of this debt, claiming his payments were misapplied.
When Applicant submitted his e-QIP, he did not list any of his past-due debts
(listed at SOR 1.h.1 - 1.h.12) as required. At hearing, Applicant claimed that he had
taken action to pay or otherwise resolve his debts and that he did not think any of them
were delinquent within the meaning of the relevant e-QIP questions. He also submitted
information showing that he had paid some of the debts. (Ax. A; Ax. B) However, the
payments reflect action as of July 2010 rather than at or before the time he submitted
his e-QIP in 2008.
 See Department of the Navy v. Egan, 484 U.S. 518 (1988).5
 Directive. 6.3.6
5
In response to e-QIP questions in Section 28 about his arrest record, Applicant
listed a felony arrest for assault in August 1992. (Gx. 1) Through his hearing testimony,
it became clear that he meant to disclose both of his 1991 arrests (alleged at SOR 1.a
and 1.b), which were disposed of jointly in 1992. (Tr. 57 - 58) He did not list the felony
arrest alleged at SOR 1.d. 
When Applicant was interviewed by a Government investigator in June 2009, he
acknowledged that he had withheld information about his arrest record because he
feared it would reflect negatively on him. (Gx. 2) At hearing, he testified that he knew, if
he disclosed his felony arrests, he would have difficulty getting a job. He had withheld
such information from his previous employer when he applied for that job in 2004. (Tr.
22, 45 - 46, 70 - 75)
Applicant submitted personal and professional references that reflect well on his
character and dedication to his work. A personal reference who has known him for
several years characterized him as a role model for young people in the town where
Applicant grew up. However, that reference was based, in part, on an understanding
that Applicant had not been in any trouble. Another reference was informed only of the
arrest alleged at SOR 1.a. (Ax. E) The maintenance supervisor at Applicant’s overseas
job site since 2007 praised Applicant’s expertise and reliability. His most recent job
performance appraisal was a satisfactory interim assessment of his progress on the
goals for his current position. (Ax. F)
Policies
A security clearance decision is intended to resolve whether it is clearly
consistent with the national interest  for an applicant to either receive or continue to5
have access to classified information. Each 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 policies6
in the adjudicative guidelines. Decisions must also reflect consideration of the factors
listed in ¶ 2(a) of the new guidelines. Commonly referred to as the “whole-person”
concept, those factors are:
(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. 
 See Directive, E3.1.14.7
 See Egan, 484 U.S. at 528, 531.8
 See Egan; Adjudicative Guidelines, ¶ 2(b).9
6
The presence or absence of a disqualifying or mitigating condition is not, by itself,
conclusive. However, specific applicable guidelines should be 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 AG ¶ 15 (Guideline E - Personal Conduct) and AG ¶ 30
(Guideline J - Criminal Conduct).
The Government bears the initial burden of producing reliable, 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 falls7
to the applicant to refute, extenuate or mitigate the Government’s case. Because no one
has a “right” to a security clearance, an applicant bears a heavy burden of persuasion.  8
A person who has access to classified information enters into a fiduciary
relationship with the Government based on trust and confidence. Thus, the Government
has a compelling interest in ensuring 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.9
Analysis
Personal Conduct
The Government’s information showed that between 1991 and 1997, the
Applicant was arrested or charged with several violations of criminal law. Available
information shows that he was convicted of three felonies as alleged in SOR 1.a, 1.b,
and 1.d. The record also shows that Applicant was arrested at least five times in
response to his ex-wife’s accusations of assault. He was convicted on only one
occasion, as alleged in SOR 1.f, and it appears that the incidents in question may have
been more mutual affray than misconduct by the Applicant. In 1992, Applicant fought
another man and stole his jacket. As to SOR 1.c. the record does not show that he was
charged or convicted and given a jail sentence for this conduct. Nonetheless, Applicant
admitted that he fought the victim and stole his jacket.
Available information also shows that Applicant deliberately falsified his e-QIP by
omitting one of his three felony arrests. Applicant admitted to a history of withholding
information about his arrests because he was concerned that such information would
keep him getting or keeping his job. I have considered the fact that he disclosed the
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felony convictions at SOR 1.a and 1.b. However, all of the information probative of this
issue shows that he intended to mislead the Government by minimizing the full scope of
his arrest record. As to his omission of his debts from his e-QIP, Applicant claimed that
he did not think they were delinquent within the meaning of the questions in Section 28.
In support of his claim, he submitted information showing he had acted to resolve some
of the debts he omitted. However, that information (Ax. A; Ax. B) shows, at best, that his
debts were resolved in July 2010, more than two years after he answered the questions
at issue in SOR 1.g and 1.h. All of the foregoing raises a security concern stated at AG
¶ 15 as follows:
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.
More specifically, Applicant’s omission of information about his arrests and his
finances requires application of the disqualifying condition at 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). The allegations of arrests and other criminal conduct were properly
withdrawn as potentially disqualifying under Guideline J. Nonetheless, when considered
along with Applicant’s attempts to mislead the Government, which constitute violations
of federal criminal law, all of the available information about Applicant’s conduct requires
application of the disqualifying condition at AG ¶ 16(c) (credible adverse information in
several adjudicative issue areas that is not sufficient for an adverse determination under
any other single guideline, but which, when considered as a whole, 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).
By contrast, I have considered the potential application of those mitigating
conditions listed under AG ¶ 17 germane to these facts and circumstances. The
mitigating condition at AG ¶ 17(a) (the individual made prompt, good-faith efforts to
correct the omission, concealment, or falsification before being confronted with the
facts) does not apply, because Applicant did not correct his e-QIP falsifications until he
was interviewed by a Government investigator four months later. The mitigating
condition at AG ¶ 17(b) (the refusal or failure to cooperate, omission, or concealment
was caused or significantly contributed to by improper or inadequate advice of
authorized personnel or legal counsel advising or instructing the individual specifically
concerning the security clearance process. Upon being made aware of the requirement
to cooperate or provide the information, the individual cooperated fully and truthfully)
does not apply, because Applicant did not establish that he received any guidance or
advice when he completed his e-QIP. The mitigating condition at AG ¶ 17(c) (the
8
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) might apply to
Applicant’s past criminal conduct were it not for his recent misconduct in falsifying his e-
QIP. 
Available information continues to cast doubt on Applicant’s trustworthiness and
good judgment, because his willingness to lie to the Government about important
information in his background is a fundamental breach of the fiduciary relationship
Applicant seeks to have with the Government. His felonious conduct in trying to conceal
his arrests cannot be characterized as minor, and it must be considered recent as it is
part of his current request for a clearance. On balance, Applicant has not mitigated the
security concerns about his personal conduct. 
Criminal Conduct
The Government presented sufficient reliable information to support the
allegation that he violated 18 U.S.C. § 1001 by deliberately withholding relevant
information about his arrest record and his finances when he submitted his e-QIP in
2008. The security concern raised by the facts established by the Government’s
information is stated at AG ¶ 30 as follows:
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. 
More specifically, Applicant’s conduct requires application of the disqualifying conditions
at AG ¶ 31(a) (a single serious crime or multiple lesser offenses), and AG ¶ 31(c)
(allegation or admission of criminal conduct, regardless of whether the person was
formally charged, formally prosecuted or convicted). 
Given the facts and circumstances of this case, I also have considered the
possible application of the mitigating conditions listed under AG 32. The mitigating
condition at 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
or does not cast doubt on the individual's reliability, trustworthiness, or good judgment)
does not apply. Applicant’s falsifications must be considered recent insofar as the e-QIP
is part of his current request for a clearance. Further, there is nothing unusual about
circumstances that require candid disclosure of an applicant’s background information.
The mitigating condition at AG ¶ 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) applies, in part, because it
appears Applicant now appreciates the importance of being candid at all times about
matters relevant to an assessment of his clearance suitability. He also has a solid
record of employment since 1999. However, as to the passage of time without
recurrence, this was the first time Applicant applied for a clearance. It remains to be
 See footnote 6, supra.10
 See footnote 9, supra.11
9
seen how or if he will comply with future requests for information. Also, as previously
noted, his e-QIP falsification must be considered recent. On balance, I conclude that
Applicant has failed to mitigate the security concerns about his criminal conduct.
Whole-Person Concept
I have evaluated the facts presented and have applied the appropriate
adjudicative factors under Guidelines E and J. I have also reviewed the record in the
context of the whole-person factors listed in AG ¶ 2(a). Applicant is 37 years old and
presumed to be a mature adult. He has been steadily employed since 1999. After a
disastrous first marriage ended in 1996, he has remarried and started a new family. His
co-workers and others are confident in his character, but they do not appear to have
been well-informed about Applicant’s past. Although much of the adverse information
about Applicant’s arrests is dated, a conclusion that he is now rehabilitated is
undermined by his willingness to break federal law by deliberately withholding from the
Government information needed to make an accurate assessment of his suitability to
hold a security clearance. A fair and commonsense assessment  of all available10
information bearing on Applicant’s past and current circumstances shows that doubts
remain about his ability or willingness to protect the Government’s interests as his own.
Because protection of the national interest is the most important consideration in these
determinations, any doubts about Applicant’s suitability to hold a security clearance
must be resolved in favor of the Government.11
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:
Paragraph 1, Guideline E: AGAINST APPLICANT
Subparagraph 1.a - 1.d: Against Applicant
Subparagraphs 1.e - 1.f: For Applicant
Subparagraphs 1.g - 1.h: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraphs 2.a - 2.b: Withdrawn
Subparagraph 2.c: Against Applicant
10
Conclusion
In light of all of the foregoing, it is not clearly consistent with the national interest
to continue Applicant’s access to classified information. Request for security clearance
is denied.
                                         
MATTHEW E. MALONE
Administrative Judge