DEPARTMENT OF DEFENSE 
  DEFENSE OFFICE OF HEARINGS AND APPEALS 
  
  
 
 
In the matter of: ) 
 ) 
  )  ADP Case No. 10-04783 
  ) 
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: Braden F. Murphy, Esq., Department Counsel 
For Applicant: Pro se 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HEINY, Claude R., Administrative Judge: 
 
In August 2009, Applicant was terminated from his employment following theft 
allegations. Applicant rebutted the trustworthiness concerns raised under personal 
conduct. Based upon a review of the pleadings and exhibits, eligibility for access to 
sensitive information and eligibility for a public trust position is granted. 
 
Statement of the Case 
 
 On December 22, 2010, the Defense Office of Hearings and Appeals (DOHA) 
issued a Statement of Reasons (SOR) detailing trustworthiness concerns under 
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); Department of Defense (DoD) 
Regulation 5200.2-R, Personnel Security Program, dated Jan. 1987, as amended 
 
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(Regulation), and the adjudicative guidelines (AG) effective within the DoD on 
September 1, 2006.  
 
On January 19, 2011, Applicant answered the SOR, and requested a hearing. 
On March 2, 2011, I was assigned the case. On March 22, 2011, DOHA issued a notice 
of hearing scheduling the hearing held on April 14, 2011. At the hearing, the 
Government offered Exhibits (Ex.) 1 and 2, which were admitted into evidence. 
Applicant testified on his own behalf and submitted Exhibits A through D, which were 
admitted into evidence. On April 25, 2011, the transcript (Tr.) was received.  
 
Findings of Fact 
 
 In Applicant’s Answer to the SOR, he admitted the factual allegations of the 
SOR. Applicant’s admission to the SOR allegation is incorporated herein. After a 
thorough review of the record, pleadings, exhibits, and testimony, I make the following 
findings of fact: 
 
Applicant is a 30-year-old computer desktop support employee who has worked 
for a defense contractor since November 2009. (Tr. 29) He is seeking to obtain a public 
trust position. His supervisor and coworkers state Applicant is organized, efficient, 
extremely competent, and has excellent rapport with coworkers. He is dependable, 
reliable, hardworking, conscientious, honest, friendly, courteous, and a valuable team 
member. (Ex. A, B, C, and D) His annual salary is $26,000. (Tr. 48) He has one son. 
(Tr. 47)  
 
 In August 2009, Applicant was terminated from his job following allegations of 
theft. Applicant worked at a large discount department store as an overnight assembler. 
At night, when the store was closed, he would assemble items such as bicycles for pick-
up by customers the following day. His normal shift started at 10:30 p.m. and ended the 
following morning. On the day in question, Applicant had received two subscription 
magazines in the mail. One was a computer modification and parts catalogue magazine 
sold only by subscription and not available in stores. (Tr. 37) The other was a men’s 
magazine. He put the magazines in his bag with his lunch and iPod, planning to read 
them during his lunch break at work. At approximately 9:30 p.m., approximately an hour 
before the start of his shift, he arrived at work. It was his habit to always arrive early.1 
 
Prior to arriving at the store, Applicant stopped at a gas station and convenience 
store very near his store and purchased an “energy drink.” (Tr. 21) As he entered the 
store where he worked, he asked the store door greeter if he needed to have a sticker 
put on his energy drink marking it as having being brought in from outside the store. The 
greeter assured him that it was not necessary. (Tr. 21, 34) Applicant continued through 
the store to the break room at the back of the store. On his way, he noticed the discount 
store had started selling the energy drink. He asked an employee as to when the store 
1 On the day of his hearing, Applicant arrived at 8:00 a.m. for his scheduled 11:00 hearing. He stated he 
did not want to be late.  
 
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started selling the drink. The employee stated that a day or two earlier the distributer 
had put in a cooler and stocked it with the drink. (Tr. 22) 
 
Applicant opened the cooler and looked at the various flavors of the energy drink. 
(Tr. 34) Had he known the store was selling the energy drink, he would have brought his 
drink there instead of buying it at the convenience store because the energy drink was 
being sold at a lower price by his store, and as a store employee he was entitled to a 15 
percent discount on all items purchased. (Tr. 49) After leaving the cooler, he passed the 
store’s magazine rack, stopping to look at the magazines before proceeding to the 
break room. 
 
At the break room, his supervisor called Applicant into the office and accused 
him of stealing the energy drink and magazines. Also present was the store’s loss 
prevention officer (LPO). (Tr. 24) Applicant professed his innocence. He was told he 
had been seen on the store surveillance system taking the items. He asked to see the 
video, but his request was denied. He then asked them to view the surveillance of him 
entering the store; it would show he had the energy drink in his hand when he entered. 
When his request was denied, he asked that they talk to the store greeter who had seen 
him enter the store with the drink. They simply stated surveillance showed him stealing 
the drink and the magazines. 
 
Applicant then asked his supervisor and the store LPO to call the magazine 
department, because the computer modification magazine and parts catalogue was sold 
only by subscription, not by the store, and, therefore, would not appear on the store’s 
list of magazines. (Tr. 26, 38) They refused to call anyone. He then asked them to point 
out the bar code on the magazines, for all items sold by the store required a bar code to 
allow the checkout machines to properly scan and price the items. As subscription 
magazines, neither possessed a bar code. Both had come in plastic bags or slip covers. 
The men’s magazine had come in a slip cover because it contained the yearly calendar. 
(Tr. 36) The other magazine, the one not sold by the store, had also arrived at his home 
in a slip cover. 
 
Applicant’s supervisor and the LPO again stated they did not have to show 
Applicant anything because it was all on surveillance. He was upset when his requests 
to view the surveillance were denied. (Tr. 52) Security was then called to escort 
Applicant from the store after his badge, discount card, case cutter, and tool box key 
were taken by his supervisor. (Tr. 24) Applicant sat on a bench in front of the store 
before security told him he could not remain on store property and told him to move to 
the bus stop bench. (Tr. 27) At the bus stop, Applicant called the police and reported 
that the store had wrongfully taken his goods. The store had failed to return his bag, his 
lunch, iPod, magazines, and drink. 
 
A police officer arrived at the bus stop and Applicant told them what had 
happened. The police officer went into the store. Applicant was not allowed to enter the 
store even with the police officer. Approximately 15 minutes later, the officer returned 
 
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with Applicant’s bag without the energy drink or the magazines. The officer said he 
would file an incident report and gave Applicant his business card. (Tr. 27) The store did 
not bring criminal charges against Applicant but did enter him in a database indicating 
he had been terminated for theft. They also denied him any unemployment 
compensation. Since there was no criminal proceeding, he never had the opportunity to 
have this matter resolved. As a minimum wage employee, Applicant did not have the 
resources to hire an attorney to pursue his wrongful termination. (Tr. 27)  
 
Applicant did receive unemployment benefits for a short time before the discount 
store appealed the matter to the state unemployment agency. (Tr. 28) A decision was 
entered in the store’s favor, and Applicant was required to repay the unemployment 
compensation he had received. (Tr. 28) He was unemployed until he obtained his 
current job.  
 
In response to questioning, Applicant indicated that during the year and a half he 
worked at the store, a number of employees were terminated for accusations of failing 
to pay for food, opening items on the shelves, or taking money. (Tr. 51) These 
employees were the more senior employees and were replaced by new hires at a much 
lower pay rate.  
 
In October 2009, Applicant completed a Questionnaire for Public Trust Positions, 
Standard Form (SF) 85P. (Ex. 1) On that questionnaire, he disclosed the theft 
allegations. (Ex. 1, Tr. 33) 
 
Policies 
 
Positions designated as ADP I and ADP II are classified as “sensitive positions.” 
(See Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3.) “The standard that must be met for . 
. . assignment to sensitive duties is that, based on all available information, the person’s 
loyalty, reliability, and trustworthiness are such that . . . assigning the person to 
sensitive duties is clearly consistent with the interests of national security.” (See 
Regulation ¶ C6.1.1.1.) The Deputy Under Secretary of Defense (Counterintelligence 
and Security) Memorandum, dated November 19, 2004, indicates trustworthiness 
adjudications will apply to cases forwarded to DOHA by the Defense Security Service 
and Office of Personnel Management. Department of Defense contractor personnel are 
afforded the right to the procedures contained in the Directive before any final 
unfavorable access determination may be made. (See Regulation ¶ C8.2.1.)  
 
When evaluating an applicant’s suitability for a public trust position, the 
administrative judge must consider the disqualifying and mitigating conditions in the AG. 
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 ¶ 2(c), the entire process is a 
conscientious scrutiny of a number of variables known as the “whole-person concept.” 
 
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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 sensitive information is the paramount consideration. AG ¶ 2(b) 
requires that “[a]ny doubt concerning personnel being considered for access to 
[sensitive] 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 ¶ 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 as to obtaining a favorable 
trustworthiness decision.  
 
A person who seeks access to sensitive 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 sensitive information. Decisions include, by necessity, consideration of 
the possible risk the applicant may deliberately or inadvertently fail to protect or 
safeguard sensitive information. Such decisions entail a certain degree of legally 
permissible extrapolation as to potential, rather than actual, risk of compromise of 
sensitive information. 
  
Section 7 of Executive Order (EO) 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 
 
Personal Conduct  
 
Adjudicative Guideline (AG) ¶ 15 articulates the trustworthiness concerns relating 
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. 
 
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The Personal Conduct Disqualifying Conditions under AG ¶ 16 that are 
potentially applicable include: 
 
(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. 
 
(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 
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. This includes 
but is not limited to consideration of: 
 
(2) disruptive, violent, or other inappropriate behavior in the 
workplace.  
 
(3) a pattern of dishonesty or rule violations. 
 
  Applicant was terminated from his job for alleged theft. Applicant has provided a 
plausible explanation of the events surrounding his termination, which addresses, 
extenuates, and mitigates the trustworthiness significance of his actions. Having 
observed Applicant’s demeanor and listened to his testimony, I find his answers truthful, 
as he did not steal the drink or the magazines.  
 
 Applicant received two magazines in the mail and took them to work intending to 
read them during his lunch break. The computer modification magazine and parts 
catalogue were sold only by subscription and not sold at the store where he was 
employed. The other magazine was sold at the store, but the copy retrieved from his 
bag failed to have a bar code, which shows it was not store property. He reasonably 
asked his supervisor and the LPO to call the magazine department to verify the store 
did not stock the computer parts magazine. He brought the drink into the store and 
asked the door greeter if he needed a sticker put on the drink indicating he had brought 
the drink into the store from the outside. He was told a sticker was not needed. He 
credibly testified he would have bought the drink at the discount store had he known the 
store was selling such drinks because it was not only cheaper, but he was entitled to a 
discount on store purchases. 
 
 
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 Although his supervisor and LPO were not required to show him the surveillance, 
a review of the surveillance could have ended the theft allegations at that point. 
Applicant does not deny opening the drink cooler or looking at magazines on his way to 
the break room. I find it unlikely that someone who had just shoplifted a drink and 
magazines would call the police seeking their assistance to retrieve his property. I find 
the theft allegations, although serious, are unfounded.  
 
Whole-Person Concept 
 
 Under the whole-person concept, the administrative judge must evaluate an 
applicant’s eligibility for a public trust position 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 
public trust position 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. The alleged conduct is not 
supported by the character statements provided by Applicant’s supervisor and 
coworkers. His explanation is reasonable and addresses the trustworthiness concerns. 
Overall, the record evidence leaves me without questions or doubts as to Applicant’s 
eligibility and suitability for a public trust position. For all these reasons, I conclude 
Applicant mitigated the trustworthiness concerns arising from the personal conduct 
allegations. 
 
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, Personal Conduct:  FOR APPLICANT 
 
  Subparagraph 1.a:   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 interest of national security to grant Applicant eligibility for a 
public trust position. Eligibility for access to sensitive information and occupying a public 
trust position is granted.  
 
______________________ 
CLAUDE R. HEINY II 
Administrative Judge