1
 
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-09004
)
)
Applicant for Security Clearance )
Appearances
For Government: Richard A. Stevens, Esquire, Department Counsel
For Applicant: Pro se  
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the pleadings, exhibits, and testimony, I grant Applicant’s
eligibility for access to classified information.
Applicant signed an Electronic Questionnaire for Investigations Processing (e-
QIP) version of a security clearance application (SF-86) on May 1, 2006. The Defense
Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons
(SOR) on November 20, 2009, detailing security concerns under Guideline J, Criminal
Conduct, and Guideline E, Personal Conduct, that provided the basis for its preliminary
decision to deny him a security clearance. 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 For Determining Eligibility for Access to Classified Information
(AG) implemented on September 1, 2006. 
 
W hen SOR allegations are controverted, the government bears the burden of producing evidence1
sufficient to prove controverted allegations. Directive, ¶ E3.1.14. “That burden has two components. First,
the government must establish by substantial evidence that the facts and events alleged in the SOR
indeed took place. Second, the government must establish a nexus between the existence of the
established facts and events and a legitimate security concern.” See ISCR Case No. 07-18525 at 4 (App.
Bd. Feb. 18, 2009), (concurring and dissenting, in part) (citations omitted). The guidelines presume a
nexus or rational connection between proven conduct under any of the criteria listed therein and an
applicant’s security suitability. See ISCR Case No. 08-06605 at 3 (App. Bd. Feb. 4, 2010); ISCR Case No.
08-07290 at 2 (App. Bd. Nov. 17, 2009).
2
Applicant acknowledged receipt of the SOR on December 5, 2009. He answered
the SOR in writing on December 10, 2009, and requested a hearing before an
administrative judge. DOHA received the request on December 23, 2009, and
Department Counsel was prepared to proceed on October 14, 2010. DOHA assigned
the case to another administrative judge on October 19, 2010. Due to Applicant’s
overseas assignment, I received the case assignment on November 3, 2010. DOHA
issued a notice of hearing on November 12, 2010, and I convened the hearing as
scheduled on December 17, 2010. The Government offered eight exhibits (GE) 1
through 8, which were received and admitted into evidence without objection. Applicant
testified, and submitted four exhibits (AE) A through D, which were received and
admitted into evidence without objection. The record closed on December 17, 2010.
DOHA received the transcript of the hearing (Tr.) on December 29, 2010.
Procedural Ruling
Applicant agreed to the hearing date about one month before the hearing and
received the written hearing notice on December 5, 2010, less than 15 days before the
hearing. (Tr. 8.) I advised Applicant of his right under ¶ E3.1.8 of the Directive to receive
the notice 15 days before the hearing. Applicant agreed to proceed with his hearing.
(Id.) 
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a
through 1.f of the SOR, concerning criminal conduct. His admissions are incorporated
herein as findings of fact. He denied the factual allegations in ¶¶ 2.a and 2.b of the
SOR, concerning personal conduct.  After a complete and thorough review of the1
evidence of record, I make the following additional findings of fact.  
Applicant, who is 34 years old, works as a team leader in cellar communications
for a Department of Defense contractor. He began his position in October 2003 and
works overseas. Since his arrival at his job, he has demonstrated “incredible initiative
and a strong dedication” to his work. As a result of his hard work, his employer
promoted him, and he now works as a shift supervisor. His managers describe him as
enthusiastic, reliable, dependable, responsible, and an asset to their mission. They trust
him and consider him a professional. His approach to his work is professional and well-
GE 1; AE A - AE D.2
GE 1; GE 3; Tr. 27-29.3
GE 2.4
GE 2; GE 7; Tr. 41-42.5
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reasoned. His professional conduct has never been called into question. They consider
him well-qualified to hold a clearance.2
Because of his father’s military career, Applicant moved many times in childhood.
He graduated from high school in 1994. He enlisted in the United States Army in
September 1995 and received an honorable discharge in September 1999. During his
first his year of college, a cellular phone company offered him employment, which he
accepted. From 2000 until October 2003, he worked at various communications
companies. He is single and the father of a five-year-old son.3
While serving in the Army, Applicant received a non-judicial punishment (NJP) in
1996 for disobeying an order. After failing a physical training test, one supervising
sergeant told him that he could not play on a local basketball team. Another supervisor
ordered him to play on the team, so he did. He accepted the NJP. His punishment was
one week of extra duty.  4
In March 2000, while driving with two college friends, the police stopped
Applicant for failure to yield at a right of way yield sign. During the stop, the police officer
alleged that he smelled marijuana and directed Applicant and his friends to exit the car.
The police officer searched all three men on the side of the road and found no weapons
or contraband. The police officer called for drug sniffing dogs, who also found no drugs
in the car. The police officer searched the car and found a leafy green substance inside
the remains of a cigar in an ashtray in the car. He also found three other cigars in the
car. The police charged all three with possession of marijuana, less than 2 ounces, a
Class B misdemeanor. The police laboratory tested the leafy green substances and
determined that it was not marijuana. Upon the recommendation of the prosecutor, the
court dismissed the charges against Applicant on July 11, 2000.5
In November 2001, Applicant drove a company van from the job site. Four co-
workers rode with him as he drove along a highway, drinking beer. He drank enough
beer to become intoxicated. The police stopped him for speeding. He admitted to the
police he had been drinking. The police conducted a field sobriety test and a
breathalyzer test. As a result, the police arrested and charged him with driving under the
influence (DUI), speeding, open container, reckless driving, disorderly conduct, leaving
the scene of an accident with property damage, and seatbelt violation. Applicant did not
receive a notice advising him of a court date and did not appear for his first court date.
The court issued a failure to appear warrant, which resulted in his arrest on the warrant
in 2002. He pled guilty to DUI, and the court dismissed the other charges. The court
fined him $1,500, placed him on probation, suspended his driver’s license for six
GE 2; GE 4.6
GE 2; Tr. 39-40.7
GE 5; Tr. 36-37.8
Neither party explained the meaning of dead docket. 9
4
months, and required him to attend a weekend alcohol education and awareness class.
He eventually paid the fines, and he completed his probation.6
In May 2002, the police stopped Applicant and charged him with driving on a
suspended license and failure to yield right of way following his involvement in a car
accident. He pled nolo contendre to failure to yield right of way and does not remember
how he pled to driving on a suspended license. The court fined him $500 and placed
him on probation for 12 months. He paid his fine over time and completed his probation.
At some later point in time, a failure to appear warrant was issued on this matter, but the
case was fully resolved in June 2003.7
In August 2003, Applicant rode with a friend for a haircut at the neighborhood
barber shop. On the way, his friend decided to stop to buy a personal bag of heroin.
They stopped in a bad section of town. His friend exited the car, and he remained in the
car. A police officer from the city drug task force appeared from a place of hiding and
told him to get out of the car. The police found a bag of heroin left on the floor of the car
by his friend and unknown to Applicant. The police charged Applicant with possession of
heroin. In the rearview mirror of the car, Applicant observed his friend run away when
the friend saw the police with Applicant. The police report contains a different version of
the events surrounding the arrest, which Applicant strongly disputes. The police report
indicated that the police officer approached in a marked cruiser and observed Applicant
open a suspected bag of heroin. When the police officer got within 10 feet of Applicant,
Applicant dropped a small straw on the ground and placed a small bag of heroin in his
pants pocket. At a pretrial hearing the following day, Applicant told his story to the court,
explaining that the car and heroin were not his. He denied that he was a drug user and
agreed to an immediate urinalysis drug test. The court directed that Applicant attend
one session of a prevention awareness program, which he did. On September 25, 2003,
the court placed Applicant’s case on the dead docket after receiving a favorable pretrial
report.8
Applicant’s version of the events surrounding his arrest in August 2003 differs
from the police report. At his hearing the day after his arrest, Applicant willingly agreed
to an immediate drug test. The court sentenced him to one preventive awareness class
and then placed his case on the dead docket.  Given the actions of the trial court, I9
assign greater weight to Applicant’s credible testimony about the totality of the
proceedings and arrest in August 2003.
In September 2003, the police arrested and charged him with possession of
marijuana, less than two ounces. The court set a hearing date for October 21, 2003.
Applicant did not appear at the hearing because he had accepted his current job and
GE 2; GE 6.10
Tr. 30, 34.11
The instruction directed an Applicant to report information regardless of whether the record in your case12
has been “sealed” or otherwise stricken from the record, except for certain convictions under the Federal
Controlled Substances Act. GE 1.
5
moved overseas. Since he did not appear for his hearing, the court issued a failure to
appear warrant. Applicant acknowledged that he did not quickly resolve this matter. He
hired an attorney in 2008 to represent him. The court dismissed the case on December
16, 2008, as there was insufficient evidence.10
Since his arrest in September 2003, Applicant has not been involved in any
matters which could lead to his arrest. He no longer associates with these friends and
has not associated with them since September 2003. Applicant describes the period of
2001 through September 2003 as his “gray cloud period”. He knows his behavior was
inappropriate and his associates suspect. During this time, he did not consider that
associating with individuals who used drugs a problem for him because he did not use
drugs. He now realizes that he is judged by the friends he keeps and that friends who
use drugs are not friends he should have.11
When he completed his SF-86 (e-QIP) on May 1, 2006, Applicant answered “no”
to the following question:
Section 23: Police Record12
(c) Are there currently any charges pending against you for any criminal offense?
Applicant did not list his drug arrest in August 2003. He, however, answered “yes” to
question (d) under Section 23 and listed his DUI arrest. In response to questions from
the Office of Personnel Management (OPM) investigator about his failure to provide this
information, Applicant told the investigator that he did not list the August 2003 arrest
because the case had been dismissed. He declined to discuss the September 2003
arrest with the OPM investigator as the case was still active. 
At the hearing, Applicant denied intentionally falsifying his answers to these
questions. He explained that he sought guidance from his security officer about
completing the SF-86 (e-QIP). He was told to fill out the application to the best of his
knowledge and not lie. He was advised that if he left anything out, he should not worry
as he could provide the information in his interview. He understood that the clearance
process involved two parts: the “paperwork” and the interview. He believed the two
parts worked together, meaning that if he left information off in the paperwork, he could
explain the information in the interview. He acknowledged that he may have
misunderstood this information. 
In answering the questions, Applicant only listed his DUI conviction, not the
dismissed arrest. He thought he only needed to list his conviction. He did not seek
GE 1; GE 2; Tr. 31-35, 44-47.13
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specific guidance on how to answer these questions. Applicant was open and candid at
the hearing.13
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines. 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, 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. . . .” An
applicant has the ultimate burden of persuasion for obtaining 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 an 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
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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
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 the disqualifying conditions that could raise security concerns.
I have considered all the conditions, and especially the following:
(a) a single serious crime or multiple lesser offenses;
(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted;
Between March 2000 and September 2003, the police arrested Applicant for
drugs on three occasions, once for a DUI, and once for driving on a suspended license.
He received a NJP in 1996 for disobeying an order. The Government has established its
case under the above disqualifying conditions. 
AG ¶ 32 provides conditions that could mitigate security concerns. I have
considered all the mitigating conditions, and especially the following:
(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
(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.
In 2000, the prosecutor dismissed the marijuana charges against Applicant after
the laboratory tests failed to show that the police had found marijuana in his car. Based
on the prosecutor’s decision and the test results, Applicant did not commit the offense
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for which he was charged in 2000. Applicant has mitigated the Government’s security
concerns expressed in SOR ¶ 1.c under AG ¶ 32(c).
Applicant was arrested once for DUI, nearly ten years ago. His drug arrests in
2003 occurred more than seven years ago. The NJP occurred 14 years ago and the
remaining arrest occurred almost nine years ago. Applicant accepted a job overseas,
where he has worked for more than seven years. He has not been involved in any
criminal activity for over seven years. Given the long length of time since his arrests, his
change of friends, his demonstrated maturation, and his employer’s favorable
recommendations, AG ¶ 32(a) applies, as his past conduct does not reflect on his
current reliability, trustworthiness, and good judgment. Since he has not been involved
in criminal activity for more than seven years, he has recognized that his conduct was
inappropriate, he has new friends, and he has performed exceptionally well at his job,
he has successfully rehabilitated himself. AG ¶ 32(d) applies.
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying:
(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;
(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, or (2) while in another
country, engaging in any activity that is illegal in that country or that is
legal in that country but illegal in the United States and may serve as a
basis for exploitation or pressure by the foreign security or intelligence
service or other group;
For AG ¶ 16(a) to apply, Applicant’s omission, concealment or falsification of
relevant facts on his e-QIP must be deliberate. The Government established that
Applicant omitted a material fact from his SF-86 when he answered “no” to Question
23a, about current pending criminal charges against him. This information is material to
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the evaluation of Applicant’s trustworthiness to hold a security clearance and to his
honesty. In his response, he denies, however, that he had an intent to hide this
information from the Government. When a falsification allegation is controverted, the
Government has the burden of proving it. Proof of an omission, standing alone, does
not establish or prove an applicant’s intent or state of mind when the omission occurred.
See ISCR Case No. 07–00196 (App. Bd. Feb. 20, 2009); ISCR Case No. 09-07551
(App. Bd. Mar. 1, 2011) In evaluating whether the Government has presented
substantial evidence regarding the deliberate nature of a false statement or an
omission, the Judge must examine the statement or omission in light of the record as a
whole. Id. In making this determination, the administrative judge must determine
whether there is direct or circumstantial evidence concerning an applicant’s intent or
state of mind at the time the omission occurred.
The relevant issue for determination is Applicant’s state of mind when he
completed his SF-86 (e-QIP). He knew not to lie as his facility security officer (FSO)
specifically told him not to lie. He also understood that if he left any information out of
his paperwork, he could provide it to the OPM investigator. Applicant was fully aware of
his past arrests when he completed his SF-86 (e-QIP). He listed his DUI arrest, as he
had been convicted of this charge by the court. He did not list his August 2003 and
September 2003 arrests because he had not been convicted. Despite the instruction in
the SF-86 (e-QIP) to list all arrests, he thought that he needed only to list his conviction.
Applicant clearly did not read the instructions carefully and received some poor
guidance from his facility security officer. Applicant’s carelessness and inattentiveness
to the instructions for answering the questions regarding his past criminal conduct does
not make his decision to answer “no” to Question 23d or his failure to list his August
2003 arrest an intentional falsity. The Government has not established a prima facie
case under Guideline E, which is found in favor of Applicant.
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 relevant 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. The decision to grant or
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deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct,
but on a reasonable and careful evaluation of all the evidence of record to decide if a
nexus exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. I also
considered Applicant’s highly credible testimony and demeanor. Ten years ago, while in
his early twenties, Applicant began associating with individuals of questionable
character. As a result of these associations, the police arrested Applicant on drug
charges twice in 2003 and once in 2000. His own conduct lead to his arrest for DUI in
2001. After accepting an overseas job, in 2003, Applicant moved many miles from his
these friends. Over the last seven years, Applicant has thought about his conduct and
associations in his “gray cloud period” and realized that society forms a view of an
individual based on their associations. He understands that even though he did not use
drugs, he would be perceived as drug user if he associated with drug users. He decided
to change his associations and did. He does not intend to use drugs in the future or
associate with individuals who use drugs. He is highly respected at work and supports
his son. Since his last arrest in 2003, he has significantly changed his thinking and his
behavior. He is a responsible individual with good judgment.
Overall, the record evidence leaves me without questions or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant mitigated the security concerns arising from his past criminal
conduct and his personal conduct under Guidelines J and E.
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.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: 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.
                                                              
MARY E. HENRY
Administrative Judge