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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-08388
)
Applicant for Security Clearance )
Appearances
For Government: Julie Mendez, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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CURRY, Marc E., Administrative Judge:
Between 2003 and 2007, Applicant stole approximately $2,000 worth of cash and
inventory from two previous employers. He has not committed such conduct in more
than four years, and has been an exemplary employee with his current employer since
2007. These positive factors are insufficient to overcome the seriousness of the
misconduct. Clearance is denied.
Statement of the Case
On April 8, 2011, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant detailing security concerns under 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) implemented by the Department of Defense on December
1, 2006. 
Department Counsel withdrew SOR subparagraph 1.f.1
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Applicant answered the SOR on April 29, 2011, admitting all of the allegations.1
He requested a hearing, and the case was assigned to me on June 15, 2011. On June
30, 2011, a notice of hearing was issued scheduling the case for July 13, 2011. The
hearing was conducted as scheduled. I received five Government exhibits, four
Applicant exhibits, and Applicant’s testimony. The transcript was received on July 21,
2011.
Findings of Fact
Applicant is a 26-year-old married man with two children, both toddlers, and a
six-year-old stepdaughter. He earned an associate’s degree in electronics in 2006, and
has been working for a defense contractor since 2007. His duties include designing and
assembling electronics. (Tr. 17)
Applicant is highly respected on the job. According to his 2010 performance
evaluation, “his performance over the past year [was] an example for fellow
technicians.” (AE B at 4) A coworker characterized him as one of the company’s hardest
working employees. (AE A) 
From 2003 to 2005, Applicant worked for an auto parts store as an assistant
manager. (AE 5 at 2) On one occasion, Applicant stole a safe from his employer, and
disguised the theft to “make it look as though it was an outside job.” (Tr. 20) Specifically,
one night when he was in charge of closing the store, Applicant took the safe out of the
store, locked the store for the night, then broke the back door and left it open. (GE 2 at
2) 
Because of Applicant’s position at the store, he knew the combination to the safe.
It contained $2,100. Applicant kept $500 and an accomplice kept the remainder.
Applicant then dumped the safe in the woods. (Id.) The store’s risk manager questioned
Applicant the next day. Applicant told him that he locked the store before leaving work
the previous night. (Id.)
On two or three occasions, Applicant stole oil, additives, and auto parts from his
employer. This merchandise totalled $250 to $500. (GE 3 at 8)
Applicant also participated in a “returned parts scheme” while working at the auto
parts store. Specifically, he removed overstock inventory, which was unlisted in the
company’s computer, from the store without authorization. He then returned the
inventory to the store, and manufactured phony receipts with fake names and phone
numbers to make the transactions appear as if different customers were getting their
money back for products that they were returning. Using this scheme, he stole
approximately $1,000 from his employer. (GE 2 at 2; GE 3 at 2) 
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Applicant also allowed another employee to participate in the scheme. With
Applicant’s help, the other employee stole approximately $2,000 to $3,000. (GE 2 at 2)
Applicant’s employer became suspicious. After confirming that the receipts were
fake, Applicant’s employer confronted him. Applicant admitted the fraud. Instead of
pressing charges, Applicant’s employer required him to write a resignation letter
explaining the fraud, and promising to reimburse the company. Applicant wrote the
letter, but never provided restitution. (GE 2 at 2)
From October 2004 to approximately October 2007, Applicant worked for a
department store as a loss prevention associate. (GE 1 at 3) His responsibilities
included observing customers, apprehending suspected shoplifters, and “turning them
over to authorities.” (Tr. 21) Also, he collected money from the cashiers’ registers at
closing time, and “closed out the building.” (Tr. 21) While in this position, Applicant
purchased items from a coworker that he knew had been stolen from their employer.
The retail price of the merchandise collectively totalled $200; Applicant purchased it
from the coworker for $50. (GE 3)
Applicant also stole approximately ten DVDs while working at the department
store. Because he was a loss prevention associate, he was able to walk out of the store
with the merchandise without being questioned. (AE 3 at 4)
In March 2010, Applicant completed a security clearance application. Question
22 required him to disclose, among other things, whether he had “left a job by mutual
agreement following allegations of misconduct.” (GE 1 at 4) Applicant left this section
blank. When asked on cross-examination about the omission, Applicant responded, “I
always looked at it as I quit.” (Tr. 34)
Policies
In addition to brief introductory explanations for each guideline, the adjudicative
guidelines list potentially disqualifying conditions and mitigating conditions, which are
required to be considered 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. 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.” 
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
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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 security
decision.
Analysis
Guideline E, Personal Conduct
Under this guideline, “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.” (AG ¶ 15) Between 2003 and 2007, Applicant stole cash and merchandise
from two employers. AG ¶ 16(e), “personal conduct, or concealment of information
about one’s conduct, that creates a vulnerability to exploitation, or duress, such as . . .
engaging in activities which, if known, may affect the person’s personal, professional, or
community standing . . .” applies.
Applicant was in his late teens and early twenties when the conduct occurred.
Since then, he has gotten married and obtained another job. He is a good employee,
highly respected by his coworkers, and he has not engaged in any misconduct for more
than four years. AG ¶ 16(e), “the individual has taken positive steps to reduce or
eliminate vulnerability to exploitation, manipulation, or duress,” applies.
Applicant was not forthcoming about his work-related misconduct on his security
clearance application, as required in response to Question 22. Given the nature and
seriousness of the conduct and his failure to disclose it on his security clearance
application, I conclude that it remains a security concern.
Whole-Person Concept
Under the whole-person concept, 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.
Applicant was young and immature when he committed the work-related
misconduct. Moreover, such misconduct has not recurred for more than four years.
Conversely, the misconduct was extremely serious. Applicant was in positions of trust
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with two employers between 2003 and 2007. He abused both positions by stealing from
the employers. Morever, his theft was not limited to mere shoplifting. Applicant
masterminded a fraudulent criminal enterprise to misappropriate money from his
employer, and on another occasion, burglarized this employer and staged the burglary
to look like an outside job. Most important, he did not disclose, as required on his
security clearance application, the fact that his criminal behavior led to his forced
resignation from his job at the auto parts store. His explanation for the omission was not
credible. Under these circumstances, I conclude that Applicant failed to mitigate the
security concern.
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 E: AGAINST APPLICANT
Subparagraphs 1.a - 1.e: Against Applicant
Subparagraph 1.f: WITHDRAWN
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.
                                             
MARC E. CURRY
Administrative Judge