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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 09-07768 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Candace Garcia, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
Applicant submitted his Electronic Questionnaire for Investigations Processing 
(e-QIP) on July 8, 2009. On August 12, 2010, the Defense Office of Hearings and 
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns 
under Guideline J, Criminal Conduct, and Guideline E, Personal 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.  
  
 On August 20, 2010, Applicant answered the SOR and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on October 
4, 2010. The case was assigned to me on October 5, 2010. On October 6, 2010, a 
Notice of Hearing was issued scheduling the hearing for October 28, 2010. The hearing 
was held as scheduled. The Government offered seven exhibits, which were admitted 
as Government Exhibits (Gov) 1 - 7 without objection. Applicant testified during the 
hearing. The record was held open until November 12, 2010, to allow Applicant to 
submit additional documents. Applicant timely submitted a two-page document that was 
 
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admitted as AE A without objection. Department Counsel’s response to AE A is marked 
as Hearing Exhibit (HE) I. The transcript was received on November 4, 2010. Based 
upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified 
information is granted. 
 
Findings of Fact 
 
 In his Answer to the SOR, Applicant denied SOR ¶ 1.b and admitted SOR ¶¶ 1.a, 
1.c, 1.d, 1.e, 1.f, 1.g, and 2.a.   
 
Applicant is a 51-year-old employee of a Department of Defense contractor who 
seeks a security clearance. He has been employed in his current position since June 
2009. This is his first time applying for a security clearance. The highest level of 
education he completed is high school. He is divorced and has an eight-year-old 
daughter. (Tr at 5-6, 74; Gov 1)   
 
Between January 1985 and March 2009, Applicant was arrested on seven 
occasions. In January 1985, he was arrested and charged with Driving Under the 
Influence. He attended an alcohol education program. After he completed the program, 
the charges were dismissed. (Gov 3 at 6-7)  
 
The SOR alleges that in October 1988, Applicant was charged with Breach of 
Peace, Reckless Driving, and Evading Responsibility. Applicant denies this arrest 
because he does not remember it. He admits that the arrest is listed in his court record. 
(Tr. 71; Gov 2 at 10)  
 
In June 1990, Applicant was arrested and charged with Breach of Peace. He was 
found guilty and sentenced to six months in jail, suspended, and placed on one year 
probation. (Gov 5; Gov 6)  
 
In January 1997, Applicant was arrested and charged with Speeding and Driving 
Under the Influence of Alcohol. He pled guilty to Driving Under the Influence of Alcohol 
and was sentenced to two days in jail, fined, and his driving privileges were suspended 
for one year. (Tr. 71; Gov 2 at 16; Gov 3 at 5-6) 
 
In February 2003, Applicant was charged with Breach of Peace. The charge was 
nolle prossed. Applicant does not remember this incident, but acknowledges that it is 
listed in his court record. (Gov 2 at 2-3, 10, 14) 
 
In March 2004, Applicant was arrested and charged with Assault, Threatening, 
and Unlawful Restraint. The charges were dismissed after Applicant completed a family 
violence program. Applicant got into an argument with his wife. He admits to slapping 
his wife in the face and holding her down on the bed out of frustration. After about 30-40 
seconds, he let her go. His wife called the police and he was arrested. This was the only 
time that he hit his wife. He and his wife divorced in March 2008. They have a better 
relationship now that they are divorced. (Tr. 63-64, 74-75; Gov 2 at 3, 12; Gov 3 at 5) 
 
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On March 4, 2009, Applicant was arrested and charged with Breach of Peace, 
Second Degree, and Threatening. Applicant pled guilty to Breach of Peace, Second 
Degree. He was sentenced to six months in jail suspended, placed on one-year 
probation, and required to attend anger management classes. The Threatening charge 
was nolle prossed. (Gov 4; Gov 5; Gov 6; Gov 7) 
 
Applicant was an employee of a local town in his previous job. For several weeks 
before the incident, there were rumors that the town was going to lay off several 
employees as a result of budget problems. Applicant and another employee were 
teased by their coworkers that they would be the first to be laid off since they had the 
least seniority in the department. Applicant jokingly told his coworkers that if he was laid 
off, he was going to go “postal” and come back with a machine gun and shoot 
everybody. Applicant testified that a lot of joking went on in his department. (Tr. 38-40; 
Gov 3 at 3) 
 
A few weeks later, on the day of the incident, there was a story in the local 
newspaper discussing the town’s budget situation. During break, several employees 
discussed the article in the break room, including Applicant. They also discussed 
upcoming union negotiations. The union was going to work hard to negotiate raises and 
prevent layoffs. Applicant interjected for them to remember what he said about going 
“postal” and that if he was laid off, he was going to come back to the facility and shoot 
everyone. While making this statement, he motioned like he was waving a firearm back 
and forth and making gun sounds. A female coworker who was not a party to the 
previous conversation told Applicant that he should not say things like that. Applicant 
continued to talk about being laid off and coming back and shooting everyone. The 
female coworker said that if he does to let her know what day, and she and her husband 
would stay home from work. Applicant responded that he knew where she lived and he 
would come to her house and shoot her family. (Tr. 41, 43-49; Gov 3 at 3-4; Gov 4) 
 
Applicant claims that his remarks were all in jest. The female coworker did not 
believe that he was joking and told him that she was going to report him to the 
supervisor. Applicant recalls that she told him that she was going to get him fired. 
Things continued to deteriorate. Applicant called the female coworker and her husband 
a derogatory name and threw a glass of water in her face. The female coworker then 
reported the incident to the supervisor. Applicant was later arrested without incident. He 
was placed on administrative leave pending the investigation. In May 2009, Applicant 
was told that he had the choice to resign or he would be fired.  Applicant voluntarily 
resigned from his position. (Tr. 43-49; Gov 3 at 4; Gov 4) 
 
Applicant regrets the incident happened and realizes it was inappropriate to joke 
about workplace violence. He had no intentions of acting on his threats. He does not 
own guns. To him, it was a joke that went too far. He lost his temper when the female 
coworker threatened to have him fired. He felt he should have never made the 
comments because he lost a job that he enjoyed. (Tr. 48, 58; Gov 3 at 4) 
 
 
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On January 12, 2010, Applicant successfully completed anger management 
counseling. (AE A at 1) He attended ten sessions of individual counseling from 
September 29, 2009, to January 12, 2010. When asked what he learned from anger 
management counseling, Applicant replied: 
 
Well, I learned that I got a big mouth and I need to think before I talk, and 
control my temper, which is – I think if I had stopped, before I threw the 
water, things could have been smoothed out or handled in a better way. 
But I crossed the line, when I threw the water, I admit that, and I deserved 
what I got. But, since counseling and since I’ve been through all of this, I 
think I’ve changed quite a bit. (Tr. 58-59) 
 
Applicant successfully completed probation on July 14, 2010. (AE A at 2; Gov 2 
at 9) He admits to having problems with his temper in the past. He now thinks before he 
speaks and acts. He testified that his actions resulted in a big loss for him. He lost a 
well-paying job. He had to sell his house for $40,000 less than the market value. He 
cashed out his retirement to cover his daughter’s child support for a year in advance. He 
has been through a lot and does not want a similar situation to happen again. (Tr. 59-
60, 74) 
 
After the incident, the court issued an order for Applicant to have no contact with 
any of his former employees. He was also barred from his former place of employment. 
He saw the former female coworker once from a distance, but avoided her because he 
did not want to violate the terms of his probation. He believes he owes both the female 
coworker and her husband an apology. He did not formally apologize because of the 
no-contact order and he did not know how the female coworker would react to his 
apology. He has no conflicts with his current coworkers. (Tr. 76-79) 
   
Between 2004 and 2009, Applicant attended counseling sessions with a doctor to 
deal with grief and depression. In 1994, his younger brother died in a motorcycle 
accident. Applicant was behind him when it happened. He takes medication for 
depression. (Tr. 35, 72; Gov 1, section 21; Gov 3 at 8)  
 
Applicant had one additional incident that is not alleged in the SOR. On June 18, 
2009, he was cited and found guilty of “Roaming Dog.” I consider this citation to be 
irrelevant because of the minor nature of the citation. (Gov 6)  
 
Applicant disclosed his arrest history and his mental-health counseling on his 
security clearance questionnaire. He cooperated with the Government during his 
background investigation.  (Gov 1; Gov 2; Gov 3)  
 
Applicant’s supervisor testified on his behalf. Applicant has worked for him for 
about 14 months. Applicant successfully completed his six-month probation period. He 
works well with the crew and the customers. He takes on more than his normal work 
load and assists other coworkers. No complaints have been made about Applicant. (Tr. 
23-30) 
 
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Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
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, which are used 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 overarching 
adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 
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. 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.  
 
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 to obtain a favorable security decision.  
 
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 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information).   
 
 
 
 
 
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Analysis 
 
Guideline J, Criminal Conduct 
 
 The security concern raised under the criminal conduct guideline is set forth in ¶ 
30 of the Adjudicative Guidelines: 
 
 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. 
 
There are several Criminal Conduct Disqualifying Conditions that apply to 
Applicant’s case. 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) apply. Applicant has been 
arrested seven times between 1988 and March 2009.  
 
Since the Government established a disqualifying condition under Criminal 
Conduct by substantial evidence, the burden shifts to the Applicant to rebut, explain, 
extenuate, or mitigate the facts. Directive ¶ E3.1.15. An Applicant “has the ultimate 
burden of demonstrating that it is clearly consistent with the national interest to grant or 
continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 
2002) “[S]ecurity clearance determinations should err, if they must, on the side of 
denials. Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
The following Criminal Conduct Mitigating Conditions are relevant to Applicant’s 
case: 
 
AG ¶ 32(a) (so much time has elapsed since the criminal behavior 
happened, or it happened under such circumstances that it is unlikely to 
recur and does not cast doubt on the individual’s reliability, 
trustworthiness, or good judgment); and 
  
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).  
 
While Applicant’s arrest history is troublesome, four of the offenses are over ten 
years old. The February 2003 arrest for Breach of Peace is over eight years old. 
Applicant’s arrest for Assault in May 2004 is over six years old. While I do not condone 
domestic violence, the actions occurred when Applicant was arguing with his wife, and 
they have since divorced. The March 2009 arrest is more recent and there is no dispute 
that Applicant’s actions on March 4, 2009, were deplorable, but there are some 
extenuating circumstances regarding this incident. Applicant was one of two employees 
 
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who had the least seniority in the department, making them the most vulnerable to 
being laid off. It is reasonable to assume this created a lot of stress for Applicant.  
 
While Applicant testified that his actions on March 4, 2009 began as a joke, it  
was in extremely poor taste and was easily interpreted the wrong way. At some point, 
the joking stopped, and Applicant ended up threatening a coworker and her husband 
eventually throwing a glass of water in her face. He was subsequently arrested. While 
the incident should not be minimized, it should also not be over-hyped. After Applicant 
was arrested, he served the terms of his sentence. He attended anger management 
courses, and successfully completed probation in July 2010. He resigned his position in 
lieu of being fired. Applicant was extremely remorseful about his actions during the 
hearing. It has been over 21 months since the March 4, 2009, incident. Applicant has a 
good employment record with his current company. His supervisor testified that he is a 
good worker who receives no complaints. Applicant has a new understanding about the 
consequences of not thinking before he acts. I find ¶¶ 32(a) and 32(d) apply.   
 
Guideline E, Personal Conduct 
 
The security concern for Personal Conduct is set out in AG &15: 
 
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.  
 
 The allegation under personal conduct involves Applicant’s voluntary resignation 
in lieu of termination from his employment as a result of the March 2009 incident.  
Applicant’s conduct raises the following personal conduct disqualifying conditions: 
 
AG ¶ 16(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, but which, when combined with all available supports a 
whole-person assessment of questionable judgment, untrustworthiness, 
unreliability, lack of candor, unwillingness to comply with rules and 
regulations, or other 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 to include breach of client 
confidentiality, release of proprietary information, unauthorized 
release of sensitive corporate or other government protected 
information: 
(2) disruptive, violent or other inappropriate behavior in the workplace; 
 
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(3) a pattern of dishonesty or rule violations; 
(4) evidence of significant misuse of Government or other employer’s 
time or resources); and 
 
AG ¶ 16(e) (personal conduct or concealment of information about one’s 
conduct, that creates a vulnerability to exploitation, manipulation, or 
duress, such as (1) engaging in activities which, if known, may affect the 
person’s personal, professional, or community standing…). 
 
 AG ¶ 16(d) applies because Applicant’s personal conduct that resulted in his 
voluntary resignation in lieu of termination was disruptive and inappropriate behavior for 
the workplace and raised questions about his judgment and reliability. AG ¶ 16(e) 
applies because Applicant’s conduct in March 2009 may affect his personal, 
professional, or community standing.  
 
 Several personal conduct mitigating conditions potentially apply. They include: 
 
AG ¶ 17(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);  
 
AG ¶ 17(d) (the individual has acknowledged the behavior and obtained 
counseling to change the behavior or taken other positive steps to 
alleviate the stressors, circumstances, or factors that caused 
untrustworthy, unreliable, or other inappropriate behavior, and such 
behavior is unlikely to recur); and  
 
AG ¶ 17(e) (the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress). 
 
 I find AG ¶ 17(c) applies because the March 2009 incident occurred as a result of 
unique circumstances. While Applicant’s conduct on the day in question was 
inexcusable, the stress of being potentially laid off more than likely put Applicant on 
edge. Applicant learned a difficult lesson from this incident. He lost a well-paying job. He 
was forced to sell his house at a loss due to his reduction in income. He was truly 
remorseful at the hearing.  Even though he lost his job, he took steps to ensure that his 
daughter’s child support was covered by cashing out his retirement account.  
 
 I find AG ¶ 17(d) applies because Applicant acknowledged that his behavior was 
wrong. He admits that he got what he deserved. He learned from his anger 
management courses to think before he acts. His current supervisor testified that his 
duty performance is good and he helps out his coworkers and customers. It is unlikely 
that Applicant will repeat similar behavior in the future, based on all that he lost as a 
result of the March 2009 incident.    
 
 
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 AG ¶ 17(e) applies because Applicant disclosed the incident on his security 
clearance application and cooperated during his background investigation, reducing his 
vulnerability to exploitation, manipulation, or duress. 
  
 Applicant admits that his past conduct raised concerns about his judgment, 
trustworthiness, and reliability. He has learned a lot and wants to move forward. He 
mitigated the personal conduct security concerns.  
 
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 
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.        
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. I considered Applicant’s criminal 
arrest history. I considered the favorable comments of his current supervisor. I 
considered Applicant’s grief after witnessing his younger brother die in a motorcycle 
accident in 1994. I considered that Applicant was concerned about being laid off during 
the March 2009 incident. What began as a joke went too far when a female coworker 
did not believe he was joking. While I do not condone Applicant’s conduct on March 4, 
2009, I note that he has paid his debt to society for the offense. He completed probation 
in July 2010. He completed anger-management counseling. He lost a job and was 
forced to sell his house at a loss. Applicant mitigated the security concerns raised under 
criminal conduct and personal conduct. 
 
 
 
 
 
 
 
 
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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.g:   For Applicant 
  
    
 Paragraph 2, Guideline E:    FOR APPLICANT 
 
  Subparagraph 2.a:    For Applicant 
 
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is   
clearly consistent with national security to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is granted. 
 
                                          
       
_________________ 
ERIN C. HOGAN 
Administrative Judge