1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 11-03025
)
Applicant for Security Clearance )
Appearances
For Government: Tovah Minster, Esq., Department Counsel
For Applicant: Pro se
______________
Decision
______________
CURRY, Marc E., Administrative Judge:
Applicant failed to mitigate the criminal conduct security concern generated by
his history of domestic violence. Clearance is denied. 
Statement of the Case
On July 13, 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 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).
Applicant answered the SOR on July 28, 2011, denying subparagraph 1.b and
admitting the remainder. On August 16, 2011, the case was assigned to me. On
September 1, 2011, a notice of hearing was issued scheduling the case for September
22, 2011. At the hearing, I received five Government exhibits (Government Exhibits
2
(GE) 1-5), five Applicant exhibits (Applicant’s Exhibit (AE) A-E), Applicant’s testimony,
and the testimony of a witness. At the close of the hearing, I left the record open for
Applicant to submit additional documents. Within the time allotted, he submitted nine
additional documents that I received as AE F through N. The transcript was received on
September 29, 2011. 
Findings of Fact
Applicant is a 40-year-old married man with three children, ages 19, 6, and 4.
The oldest child is from a previous marriage. Applicant is a veteran of the U.S. Marine
Corps where he served from 1990 to 1993. He was discharged honorably. (Tr. 20)
Applicant earned an associate’s degree in 2009 in information technology and database
administration, and is currently working toward a bachelor’s degree in these fields. (Tr.
19)
Currently, Applicant works as a computer technician for a defense contractor. His
duties including hardware and software maintenance. Applicant has worked in this field
for the past 15 years. (Tr. 15) According to his supervisor, he is “an outstanding
employee” who is “always willing to go out of his way to help.” (Tr. 60)
Applicant and his wife have been married since 2001. For the majority of their
marriage, they have had “a very troubled relationship.” (Tr. 27) They have repeatedly
separated and reconciled. Since 2006, they have been together only two months,
collectively. Currently, they are estranged, but have not formally filed for a divorce. (Tr.
50) Applicant’s wife has physical custody of the children. (Tr. 37) 
In December 2005, Applicant was arrested and charged with second degree
assault after a domestic dispute. The court dismissed the case in April 2006 after
Applicant’s wife declined to testify against him. (GE 3 at 2)
Applicant voluntarily attended individual counseling from 2006 to 2008 to help
him deal with his marital issues. (Tr. 32) In approximately 2008, Applicant and his wife
voluntarily began attending marriage counseling together. They stopped after three or
four sessions. (Tr. 30) 
In July 2010 while at work, Applicant received a call from his wife informing him
that she was throwing all of his belongings into the street and kicking him out of the
house. (Tr. 33) Applicant then obtained permission from his supervisor to leave work
early. When he arrived home, he began to put his belongings, which were strewn over
the front yard and driveway, into baskets and storage bins. (GE 2 at 10) 
What happened next is inconclusive. Applicant contends that while carrying a
basket to his car, he tripped over the curb and fell into his wife, whereupon they both hit
the ground. However, he provided no corroborating evidence. 
Restitution covered medical bills. (GE 2 at 11)1
Applicant submitted evidence post-hearing indicating that the balance due on his wife’s hospital bill after their2
insurance co-pay was only $927.00, not $9,082, the amount the court had originally ordered him to repay. (AE
L)
3
Applicant admits that his wife called the police, who then arrived to arrest and
charge him with second degree assault. Also, he testified that she went to the local
emergency room where an examination revealed that she had bleeding on the brain.
She spent the next two days in the shock trauma unit of the hospital. (GE 2 at 11)
While Applicant’s wife was incapacitated, her brother filed, on her behalf, a
motion for a restraining order against Applicant. (GE 2 at 12) Approximately two weeks
later, at a hearing, the court granted the restraining order, ordering Applicant to have no
contact with his wife and not enter their home or her place of employment. (GE 4 at 3). 
In November 2010, Applicant received probation before judgment. (Id. at 1)
Applicant was ordered to pay his wife $9,082 in restitution in $500 monthly increments.1
(Id.; Tr. 42-43) Also, he was assigned a probation officer with whom he was required to
meet once weekly, and he was ordered to attend anger management classes once
weekly for six months. (Tr. 41-42) Applicant’s probation was set to end in November
2012, but ended early. (GE 4 at 1)
Applicant complied with the court’s requirements that he attend anger
management classes and meet with his probation officer. (AE H, N) As part of
Applicant’s anger management program, he took a test at the beginning of the program
measuring, among other things, his truthfulness. (AE H) He then took the same test at
the end of the program, and the program administrator compared the scores to gauge
Applicant’s potential for recurrence. (Id.) Based on the test results, the program
administrator characterized Applicant as “being self-protective and guarded regarding
self-disclosure,” and concluded that he showed little improvement during the course of
the program.
Applicant  did not pay restitution as ordered, paying $20 monthly instead of $500
monthly. (Tr. 43) In April 2011, Applicant was arrested for failing to make the proper
restitution payments. He was required to pay $1,000 bail. At a subsequent hearing, the
bail was applied to the balance of the restitution, and the court concluded Applicant had
satisfied the restitution.  (Tr. 43-44) The court terminated the probation order on July 22,2
2011. (AE N) 
Applicant’s wife is mentally unstable and has been hospitalized in an inpatient
psychiatric hospital on at least two occasions. (AE I, K) Applicant contends her mental
instability provoked the two domestic violence episodes listed in the SOR.
4
Policies
The adjudicative guidelines are not inflexible rules of law. Instead, recognizing
the complexities of human behavior, they are applied together 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
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 security clearance.
Analysis
Guideline J, Criminal Conduct
Under this guideline, “criminal activity creates doubt about a person’s judgment,
reliability, and trustworthiness.” Moreover, “by its very nature, it calls into question a
person’s ability or willingness to comply with laws, rules, and regulations,” (AG ¶ 30) In
the past six years, Applicant has been arrested twice for domestic violence-related
criminal misconduct. Also, he was arrested for failing to comply with the most recent
court order stemming from one of the domestic violence episodes.  AG ¶¶ 31(a), “a
single serious crime or multiple lesser offenses,” applies. 
Applicant is a stellar employee who is balancing his job with his pursuit of an
undergraduate degree. There is record evidence that Applicant’s wife may have initiated
one, if not both, of the domestic violence-related episodes that led to his arrests.
Regardless of whether they both share responsibility for their marital problems,
Applicant’s most recent arrest was less than seven months ago. Also, Applicant is
separated from his wife, but has not filed for divorce. Given their history of volatile
breakups followed by reconciliations, I cannot conclude that the pressures that
contributed to Applicant’s criminal conduct will not recur.
Applicant deserves credit for finishing the court-ordered anger management
classes. However, I remain troubled by the ambiguous conclusion of the anger
management class administrator regarding Applicant’s progress. This raises doubt as to
whether Applicant is fully rehabilitated.  I conclude that AG ¶ 32(f), “there is evidence of
successful rehabilitation; including, but not limited to . . . job training or higher education,
5
[and] good employment record . . .” is partially applicable, but that none of the remaining
mitigating conditions are applicable.
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.
Applicant’s most recent domestic violence-related episode resulted in a serious
injury to his wife. Its recency and his subsequent failure to comply with the terms of
probation render him an unacceptable security risk.
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: AGAINST APPLICANT
Subparagraphs 1.a-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.
                                             
MARC E. CURRY
Administrative Judge