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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-07745
)
Applicant for Security Clearance )
Appearances
For Government: Raashid Williams, Esquire, Department Counsel
For Applicant: Leslie McAdoo Gordon, Esq.
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Decision
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CURRY, Marc E., Administrative Judge:
Applicant’s misconduct in the 1990s was mitigated by the passage of time and
significant evidence of rehabilitation. Clearance is granted. 
Statement of the Case
On April 29, 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. 
Applicant answered the SOR on April 29, 2011, admitting subparagraphs 1.a and
1.b, and denying subparagraph 1.c. He requested a hearing, and the case was
assigned to me on July 5, 2011. The hearing was initially scheduled for September 9,
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2011. On August 31, 2011, counsel for Applicant moved, via teleconference, for a
continuance. I granted the motion and rescheduled the hearing for October 28, 2011.
Two weeks before the hearing, Applicant’s counsel informed me that a witness would
not be available to testify on the hearing date, and requested that I schedule another
time to accommodate this witness. Department counsel did not object, and I scheduled
this witness’ testimony for November 21, 2011. 
The hearing was held over two days. On October 28, 2011, I received five
Government exhibits marked as Government Exhibits (GE) 1-5, and ten Applicant
exhibits marked as Applicant’s Exhibits (AE) A-J. I also considered Applicant’s
testimony. On November 21, 2011, I received the testimony of Applicant’s witness, and
considered closing arguments. The record closed on November 21, 2011. The transcript
from the first part of the hearing was received on November 7, 2011. The transcript of
part two of the hearing was received on November 29, 2011.
Findings of Fact
Applicant is a 40-year-old married man with two children, ages 11 and 7, and one
stepson, age 22. He has some college education. He has been working for a
telecommunications company for the past 13 years. He has held a clearance during this
entire time. (Tr. 22) Applicant’s duties include overseeing telecommunications
equipment. Specifically, he controls the routers, the circuitry going to the routers, and
the switches behind the routers. (Tr. 21)
From 1988 to approximately 1991, while working as a department store security
supervisor, Applicant took merchandise without authorization, and undercharged his
friends for their purchases on several occasions. His embezzlement collectively totalled
approximately several hundred dollars. (Tr. 52)
In approximately 1994, Applicant’s next door neighbor backed his car out of the
driveway and hit Applicant’s car that was parked on the street. Applicant filed a false
claim with his car insurance, reporting the accident as a hit and run. His neighbor paid
him $250. (Tr. 25)  Applicant used $200 of this money to pay the deductible, and he
pocketed the remainder.  (Tr. 25, 63)     
The SOR alleges Applicant engaged in time sheet fraud from approximately
January 2005 to November 2005, by reporting hours that he did not actually work.
Applicant denies this allegation, asserting that he left work daily approximately 15
minutes early, but he typically arrived 15 minutes early each day. (Tr. 29) Applicant did
this to avoid evening rush hour traffic. Specifically, if he left at 5:00 p.m., the time he
was required to work, rather than 4:45 p.m., the time he typically left, his commute
would be approximately one hour longer. Because he worked the required 10-hour daily
shift, he “figured it [was] all [a] wash.” (Tr. 60)
Applicant was working for his current employer during the period of the alleged
time sheet fraud. According to his second-line supervisor at the time, employees’ work
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time did not have to correspond exactly to their employment contract, so long as they
worked a full 40-hour-per-week schedule. (Tr. Part II at 10) Moreover, he was aware of
Applicant’s lengthy commute during the time at issue and allowed him to arrive early
and leave early. (Tr., Part II, at 12)
Applicant’s second-line supervisor currently works with Applicant. He considers
Applicant “a very upstanding individual,” who always reported when he was going to be
out of the office even when family emergencies occurred. (Tr., Part II, at 11)
Applicant’s second-line supervisor’s opinion of Applicant is consistent with
Applicant’s immediate supervisor’s opinion. According to his immediate supervisor,
Applicant is “one of the most impressive workers that [he] has ever been associated
with,” and the “type of person every manager would want to have on his team.” (AE F)
 
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
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)
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Applicant did not commit time sheet fraud, as alleged in the SOR. On the days he
left work early, he arrived early. In sum, he worked the requisite hours. I resolve SOR
subparagraph 1.c in his favor.
Applicant’s misappropriation of store merchandise while employed at a
department store in 1990, and his insurance claim fraud committed in 1994 trigger the
application of AG ¶ 16(d)(3), “a pattern of dishonesty or rule violations,” and AG ¶ 16(e),
“personal conduct, or concealment of information about one’s conduct, that creates a
vulnerability to exploitation, manipulation, or duress . . .”
Applicant’s misconduct was not minor. As a store security guard, Applicant was
vested with the authority to safeguard the store’s merchandise. He abused this authority
by misappropriating the merchandise. Similarly, in 1994, he falsely reported an
insurance claim for personal gain. 
Nevertheless, Applicant’s first episode of misconduct occurred when he was in
his late teens to early twenties, and the false insurance claim occurred more than 15
years ago. Applicant is now a family man who is highly respected on the job that he has
held for 13 years.  AG ¶ 17(c ), “the offense is so minor, or so much time has passed, or
the behavior is so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness,
or good judgment,” applies.
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.
The seriousness of Applicant’s misconduct is outweighed by the amount of time
that has elapsed since the last episode of misconduct, his maturity, and his strong job
performance over the past 13 years. The presence of significant rehabilitation renders
the possibility of recurrence highly unlikely. Applicant mitigated 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:
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Paragraph 1, Guideline E: FOR APPLICANT
Subparagraphs 1.a - 1.c: For Applicant
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.
                                             
MARC E. CURRY
Administrative Judge