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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 09-07714 
  )   
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Melvin A. Howry, Esq., Department Counsel 
For Applicant: Bradley R. Corbett, Esq. 
 
 
May 25, 2011 
______________ 
 
Decision 
______________ 
 
 
GOLDSTEIN, Jennifer I., Administrative Judge: 
 
Applicant failed to mitigate the Criminal Conduct security concerns. Eligibility for 
access to classified information is denied.  
 
Statement of the Case 
 
On January 19, 2011, the Defense Office of Hearings and Appeals (DOHA) 
issued a Statement of Reasons (SOR) to Applicant detailing security concerns under 
Guideline J, Criminal Conduct. The action was taken under Executive Order (EO) 
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 for cases dated after September 1, 2006.  
 
Applicant answered the SOR on February 7, 2011, and requested a hearing 
before an administrative judge. The case was assigned to me on March 2, 2011. DOHA 
issued a notice of hearing on March 15, 2011. The hearing was scheduled and 
convened on April 4, 2011. The Government offered Exhibits (GE) 1 through 6, which 
 
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were admitted without objection. The Government also presented two documents for 
Administrative Notice, marked and admitted at I and II. Applicant, through his attorney, 
offered Exhibits (AE) A through D, called two witnesses, and testified on his own behalf. 
All Applicant’s exhibits were admitted without objection. DOHA received the transcript of 
the hearing (Tr.) on April 12, 2011.  
 
Findings of Fact 
 
 Applicant admitted the SOR allegations ¶¶ 1.a, 1.b, 1.c. After a thorough and 
careful review of the pleadings, exhibits, and testimony, I make the following findings of 
fact. 
 
 Applicant is 40 years old. He served in the U.S. Navy for six months in 1993, but 
after he was diagnosed with ulcers, he was medically barred from service. He 
possesses an associate’s degree and a degree in mechanics. He has been employed 
as a government contractor since June 1997. He is married, but separated from his 
spouse. He has a nine-year-old daughter from his marriage. His daughter lives with 
Applicant’s spouse. (Tr. 65-74, 115-119; 134; GE 2.) 
 
 Applicant admits that in January 2002, he was charged with Possession of Less 
Than 1 Ounce Marijuana and Fighting in Public. He testified that on the evening in 
question, he was waiting in line to see a movie at a theater with his girlfriend. She asked 
him to hold her clutch and he put it in the pocket of his cargo shorts. While in line, 
another movie patron was allegedly making perverse comments to Applicant’s girlfriend. 
When the comments continued, despite Applicant’s request that the aggressor “throttle 
back,” Applicant complained to an usher, but the usher told him to get back in line. 
Applicant continued to insist the usher take action and the usher asked Applicant to 
leave. He felt he had not done anything wrong and refused to vacate the premises. The 
usher called the mall cops and Applicant was escorted to the mall’s detention facility. 
Eventually, the San Diego Police Department arrived at the mall and arrested Applicant 
for Fighting in Public. Inside his girlfriend’s clutch, the police found a small amount of 
marijuana, which Applicant claims he had no knowledge of. Applicant pled guilty to 
Fighting in Public, and the Possession of Less Than 1 Ounce Marijuana charge was 
dismissed. Applicant was fined approximately $100 as a result of this incident. (Tr. 75-
78; 125-126, 129, 134-138; GE 6.) 
 
 Applicant was arrested in September 2005 and charged with Driving Under the 
Influence Alcohol/Drugs and Driving Under the Influence with 0.08% or Higher Blood 
Alcohol. Applicant contended that he did not drive after consuming alcohol on this 
occasion, although he was found guilty of both charges by a jury. Applicant claimed that 
on the evening in question, he came home from work to find a tow truck with an open 
door that was blocking the driveway to his apartment complex parking lot. Applicant 
waited for the truck to close his door and move. Eventually, he honked his horn. When 
the truck still did not move, he put his vehicle into park, got out of his vehicle, and 
closed the tow truck door to allow his vehicle room to enter into the parking lot. 
According to Applicant, the tow truck driver was belligerent and yelled at him. Applicant 
had not consumed any alcohol prior to this altercation. However, when Applicant got 
 
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into his apartment, he proceeded to consume approximately four 16 ounce cans of beer 
over the next hour and a half. During that time, Applicant decided to call the police to 
complain about the tow truck driver. When the police arrived, the tow truck driver 
reported to the police that Applicant had been driving while intoxicated. The Police 
knocked on Applicant’s door and requested he come outside and speak with them. He 
was promptly arrested and charged with Driving Under the Influence Alcohol/Drugs and 
Driving Under the Influence with 0.08% or Higher Blood Alcohol. Applicant was found 
guilty by a jury and sentenced to pay a fine, attend alcohol classes, participate in three 
months of a first offender program, and attend a Mothers Against Drunk Driving (MADD) 
victim impact panel. (Tr. 79-87, 126-127, 138-139, 145; GE 1; GE 6.) 
 
 Applicant’s most recent criminal incident took place in March 2009. On or about 
March 24, 2009, Applicant was charged with one count of Carrying a Loaded Firearm 
on One’s Person; two counts of Drawing or Exhibiting Firearm; one count of Disturbing 
the Peace by Fighting; and one count of Resisting an Officer, as a result of an incident 
that occurred on or about March 19, 2009. Applicant testified that prior to the day in 
question, he had discovered his vehicle had been vandalized with gold spray paint, 
along with about 12 other vehicles in the parking lot. He suspected that his neighbor’s 
eight-year-old child had sprayed his car with gold spray paint because the child’s go-
cart had recently been spray-painted gold. Applicant knocked on the child’s door and 
complained to the father, who punished the child and discarded the child’s go-cart. 
Applicant then called the police and reported the incident. Applicant felt that the deputy 
he reported the incident to was biased against Applicant. The boy was arrested, but the 
city decided not to prosecute the child because he was so young. Applicant was told 
that if he wanted compensation, he would need to talk to the child’s parents. (Tr. 91-
112, 127-128, 140-145; GE 3; GE 4.) 
 
 On the night in question, witnesses and the victim retold partial versions of 
events, compiled in the police reports. Applicant apparently decided to address the 
child’s parents to request compensation. Police records reflect that on March 19, 2009, 
at approximately 10:30 pm, Applicant pounded on the front door of his neighbor’s 
apartment. Applicant lives in a second story apartment and the victims live on the 
ground floor. The mother of the child in question looked out her window and observed 
Applicant standing in front of her apartment door with what she believed was a hand 
gun in his right hand. She reported that Applicant berated her with foul and offensive 
language. The woman yelled back at Applicant and then phoned her estranged 
husband for assistance. Applicant was reported to have returned to his apartment. 
Neighbors reported seeing Applicant aiming a rifle at the woman’s front door while 
yelling at her from his apartment. Eventually, the woman’s husband arrived. He 
confronted Applicant about what had happened that evening. He asked Applicant why 
he was threatening his family. Applicant was at the top of the stairs near his front door. 
The husband told Applicant that he would break his neck if he threatened his family 
again. Witnesses saw Applicant walking down the stairs with a rifle pointed toward the 
husband. At this point, someone called the police. Applicant had returned to his 
apartment. When the police arrived, Applicant was asked to come out of his apartment, 
but he refused. Police decided to treat Applicant as armed and barricaded. Neighbors 
were evacuated. (GE 3; GE 4; GE 5.) 
 
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Applicant’s version of the events differs from that of the victim and witnesses. 
Applicant reported that he believed his neighbor’s husband was a drug dealer and had 
recently gotten out of prison. During the hearing, he made no mention of confronting the 
child’s mother and claims the information that he knocked on her door while holding a 
hand gun is a flat-out lie. Instead, he explained that he had been waiting to speak to the 
father of the children to request compensation for the damage to his car, but had not 
seen him for about a month. It was approximately 10:30 pm and he had just arrived 
home. Applicant was on the ground floor of the apartment building and was walking up 
to his own apartment when he saw the husband. Applicant asked him for compensation 
and the man became belligerent and used racial terms toward Applicant. Applicant 
claims he walked up toward his own apartment and then called the man a profanity for 
not teaching his child right from wrong. The victim began to follow the Applicant and the 
Applicant retreated into his apartment and slammed the door, but failed to lock it. The 
man entered Applicant’s apartment through the unlocked door. Fearing for his life, 
Applicant grabbed an airsoft rifle, a type of pellet gun that is not lethal but looks like a 
real weapon, and pointed it at the man. Applicant kept the gun pointed at the man and 
walked the man backwards out of his apartment and down the stairs to his apartment, 
keeping the weapon pointed at the man the entire time. Applicant indicated he returned 
to his apartment and called the police. The police came to Applicant’s door and he 
talked to the police through a window. Applicant felt he had more civil rights on his own 
property. Applicant believes the police stereo-typed him in a negative manner. After a 
three-hour stand-off, the swat team used a “flash bang grenade” and persuaded 
Applicant to exit his apartment. He was arrested and remained in jail for five days before 
he was released on bail. (Tr. 91-112, 131-132; GE 3.) 
 
Applicant pled guilty to Carrying a Loaded Firearm on One’s Person and 
Resisting an Officer. The remaining counts were dismissed. Imposition of sentence was 
suspended for three years and Applicant was placed on summary probation for three 
years, required to pay a fine and costs totaling $1,021, was sentenced to five days in 
the public service program, with credit for five days served, and ordered not to possess 
any weapons or firearms. On March 9, 2011, Applicant motioned for his probation to 
terminate early and the motion was granted. (AE A; Tr. 107-109; GE 3.) 
 
Applicant believes that he has rehabilitated himself since his arrests. Applicant 
claimed at hearing that he recognizes that he needs to take a step back before he acts 
and think about how to react before he acts to events in his life. (Tr. 110-112, 127-128.) 
 
 Applicant is well respected by his friends, co-workers and supervisor. Applicant’s 
work performance evaluation reflects he performs satisfactorily at his job. His 
Supervisor, who testified on his behalf and wrote letters of recommendation, indicated 
that Applicant is an asset to his shift and finds Applicant responsible and reliable. (AE B; 
AE C; AE D; Tr. 28-61.) 
  
 
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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 to be 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, administrative judges apply the guidelines 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 the 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 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 EO 10865 provides that adverse 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 relating to the guideline for Criminal Conduct is set out in 
AG ¶ 30: 
 
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 conditions that could raise a security concern and may be 
disqualifying. The following are potentially applicable:  
 
(a) a single serious crime or multiple lesser offenses; and 
 
(c) allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted. 
 
Applicant has a long criminal history from January 2002, through his most recent 
conviction in 2009. Over this seven-year time span, he had three criminal incidents, all 
involving poor judgment. The above disqualifying conditions have been established.  
 
Two Criminal Conduct mitigating conditions under AG ¶ 32 are potentially 
applicable:  
 
(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; 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. 
 
 Applicant’s criminal conduct involves extremely poor judgment, no matter which 
version of the facts one believes. While two years have passed since his last criminal 
act and subsequent conviction, the passing of time does not mitigate his lack of 
judgment. He was a mature adult at the time of his last criminal act. His seven-year 
history of criminal conduct reflects a disregard for following rules and regulations and 
not only cast doubt on his judgment, but also his reliability and trustworthiness. Based 
on his history of criminal conduct I cannot find that future criminal conduct is unlikely to 
recur. AG ¶ 32(a) does not apply. 
 
 Applicant presented numerous letters of recommendation, work performance 
appraisals, and other character evidence. However, these alone are not enough to 
 
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mitigate his recent criminal activity. Only two years have passed since Applicant’s last 
arrest and he has been under court ordered probation until recently. I find at this 
juncture there is insufficient evidence to show successful rehabilitation. AG ¶ 32(d) does 
not apply. 
  
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 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 guideline 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 have incorporated my comments 
under Guideline J in my whole-person analysis. 
 
I have considered Applicant’s character, as attested to by his two witnesses and  
through the letters from professional colleagues, as well as his evaluation reports. 
However, the serious nature of his criminal conduct, especially his recent 2009 
conviction, lead me to conclude he does not demonstrate the good judgment, reliability, 
and trustworthiness required of one who has access to classified information. He was a 
mature adult when he committed these offenses. Not enough time has passed to 
demonstrate rehabilitation. 
 
 Overall, the record evidence leaves me with questions and doubts as to 
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant has not mitigated the Criminal Conduct security concern. 
 
 
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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:   AGAINSTAPPLICANT 
 
  Subparagraph 1.a.:   Against Applicant 
Subparagraph 1.b:   Against Applicant 
  Subparagraph 1.c.:   Against Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
________________________ 
Jennifer I. Goldstein 
Administrative Judge