1 
                                            DEPARTMENT OF DEFENSE  
DEFENSE OFFICE OF HEARINGS AND APPEALS 
 
           
             
 
 
In the matter of: ) 
 ) 
  ) ISCR Case: 10-09746 
  ) 
 ) 
Applicant for Security Clearance ) 
  
  
Appearances  
 
For Government: Pamela Benson, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
DAM, Shari, Administrative Judge: 
 
 Based upon a review of the pleadings, testimony, and exhibits, eligibility for 
access to classified information is denied 
 
On May 13, 2010, Applicant submitted an Electronic Questionnaires for 
Investigations Processing (e-QIP). On January 18, 2012, the Defense Office of 
Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) 
detailing security concerns under the guideline for 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 effective within the Department of 
Defense after September 1, 2006.  
  
 
 
 
 
2 
 Applicant answered the SOR in writing on February 9, 2012, and waived his right 
to a hearing before an administrative judge. On March 7, 2012, he reversed that 
decision and requested one. On March 15, 2012, DOHA assigned the case to me. 
DOHA issued a Notice of Hearing on March 23, 2012. The case was heard on April 18, 
2012, as scheduled. Department Counsel offered Government Exhibits (GE) 1 through 
3 into evidence without objection. Applicant testified and submitted Applicant Exhibits 
(AE) A through V into evidence without objection. On May 3, 2012, DOHA received the 
hearing transcript (Tr.)                                                           
 
Findings of Fact 
 
 In his Answer to the SOR, Applicant admitted the factual allegations contained in 
¶¶ 1.a through 1.c, and 1.e of the SOR. He denied those contained in ¶ 1.d. Those 
admissions are incorporated into the following findings of fact: 
 
 Applicant is 38 years old and married since April 2009. He and his wife have an 
eighteen-month-old child. He graduated from high school in 1991. After graduation he 
worked at a car dealership and attended college part-time, earning some college 
credits. When he was 18 years old, he began associating with local gang members. 
 
 On February 1, 1993, Applicant and two gang members broke into four cars and 
stole radios and other items. They were arrested and charged with four felony counts of 
theft.  On November 12, 1993, Applicant pleaded guilty to conversion, a misdemeanor, 
and the felony counts were dismissed. The court sentenced him to one year in jail, 
suspended, placed him on probation for one year, and ordered him to pay restitution. 
(Answer.) Applicant was 20 years old. (Tr. 36-37; GE 2.) 
   
 On July 31, 1994, Applicant and two gang members broke into a commercial 
building to steal money and handguns. Applicant was armed and assigned to be the 
“lookout” man. One man, also armed, shot a security guard. All three men immediately 
left the building. The security guard died later. (Tr. 44-45.)  The following day, Applicant 
and the two men were arrested and charged with murder. On May 11, 1995, Applicant 
pleaded guilty to burglary and received a sentence of 20 years in jail. The court 
dismissed the murder charge. He was on probation for the 1993 offense at the time of 
the crime. He was 22 years old when convicted. Applicant apologized to the victim’s 
wife during his sentencing. (Tr. 46-48.)  
 
 While in prison, Applicant completed the necessary credits for an Associate 
Degree in Arts in December 1999 and a Bachelor of General Studies in June 2001. (AE 
A, B.) At the age of 28, Applicant was released from prison in July 2001 after serving 
seven years. He received a sentence reduction of ten years for good behavior and three 
years for earning an associate’s and bachelor’s degree. (Tr. 66.) After leaving prison, he 
was on parole for two years. His parole terminated three months early because of his 
good behavior. (Tr. 49-50.) 
 
 
 
 
 
3 
 On September 3, 2003, Applicant attended a bachelor party with other friends 
from college. After they left a parking lot in early morning, a policeman stopped them 
and questioned them about criminal damage done to overhead lights in the parking 
garage. Applicant was unaware of any damage. The driver was charged with operating 
while intoxicated (OWI). His other friend owned a handgun and had left it in the back of 
the truck, unbeknownst to Applicant. The friend received a citation for improperly 
stowing a handgun. Applicant received a citation for criminal mischief. His case was 
dismissed because the policeman did not appear in court for the trial. (Tr. 53-54.)  
 
 In June 2004 Applicant lived in a student complex while attending college. One of 
his friends had a friend who visited and offered them marijuana. Applicant experimented 
with it six times that week. He never used it before then, and did not use it after that. (Tr. 
54.) Applicant disclosed this illegal substance abuse in his e-QIP. (GE 1.) He no longer 
associates with people who use illegal drugs. He does not intend to use marijuana or 
illegal substances in the future. (GE 3 at 112.) 
 
  On November 12, 2005, Applicant went to a bar with his brother and a Marine 
friend where they consumed alcohol over a period of time. After leaving the bar, all 
three got into his car to go home. He lost control of his vehicle and struck a tree. The 
car was totaled and his brother was seriously injured. He then left the scene of the 
accident because he was scared, confused, and intoxicated. He was soon arrested and 
charged with OWI, OWI involving endangerment, and leaving the scene of an accident. 
(GE 3.) 
 
 In January 2006 Applicant pleaded guilty to OWI involving endangerment. The 
court suspended his driver’s license for 90 days, assessed a fine and court costs, and 
ordered him to complete an alcohol education course. (Tr. 55-56.) He was placed on 
one year of probation and order not to use alcohol. (GE 3 at 109.) Applicant 
successfully completed the alcohol education course in May 2006. He found the course 
to be an “eye opener” in regard to the potential damage that abusing alcohol could have 
in his life. He was not diagnosed with an alcohol problem. (Tr. 61-62.) He does not have 
an alcohol problem and consumes a couple beers once every couple weeks or a month. 
(Tr. 63.) He has not been intoxicated since November 12, 2005. (GE 3 at 109.) 
 
 After leaving prison in 2001, Applicant began a business as a floor installer to 
support himself. He did that until August 2005 when he obtained a position as a co-
operative education engineer with a company that worked within a university. He left 
that position in January 2006. He then worked at a restaurant for six months. In July 
2006 he found a position with his current employer through a staffing agency. During his 
first year of employment he was a contractor and not an employee. In 2007 or 2008, his 
employer hired him as an entry level electrical engineer. (GE 1 at 25.) He worked his 
way through college and in May 2007 earned his second degree, a Bachelor of Science 
in Electrical Engineering. (Tr. 57; AE C.) He was on the Honors List his last two 
semesters, having earned an “A” grade in seven of the nine courses he completed. 
(Answer; AE B.)  
  
 
 
 
 
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 Since working for his employer, Applicant has received excellent work 
performance evaluations. In the 2008 evaluation, his supervisor noted that Applicant 
“has had an excellent year. . . [He] can handle whatever task is given to him, and is 
showing excellent leadership skills.” (AE L.) In the 2009 evaluation, his supervisor again 
stated that Applicant “is doing an excellent work for the company. . . [Applicant] is 
showing some strong leadership potential as well as his solid technical skill base.” The 
mid-level manager indicated that Applicant’s team had “requested a long term 
commitment of [Applicant].” (AE M.) In the 2010 evaluation, Applicant’s supervisor noted 
that Applicant “is working at a very high level. He has the respect of all of those that 
work with him. He can think through problems well, and meet customer needs and 
commitments.” (AE N.) In the 2011 evaluation, Applicant’s supervisor again mentioned 
his excellent performance. He stated that Applicant “is well liked by his peers. He has a 
good attitude, and maintains an even keel.” (AE O.) 
 
 During his employment as an electrical engineer between 2008 and 2010, 
Applicant completed four certificate courses, in the area of system design, specific ITT 
training, and leadership. (AE D-G.) He received four awards for his achievements, team 
work, excellence, and service. (AE H-K.) 
 
 Applicant submitted six letters of recommendation. A colonel in the U.S. Army 
wrote a letter in June 2009 complimenting Applicant for his work on a project that 
provided technical and operational support to the troops. He referred to Applicant as “a 
valued member of the . . . team.” (AE P.) A senior staff engineer, who has worked with 
Applicant for five years, wrote a letter. He has “grown to trust [Applicant] with more and 
more responsibility. [Applicant] has proven to be reliable, trustworthy and efficient in the 
execution of his assignment.” (AE R.) Another senior staff engineer stated that 
[Applicant] is well respected by his peers and fellow co-workers. He is honest, forthright, 
and sincere in his interactions with co-workers and is a positive contributor to [the 
company.]” (AE Q.) A retired engineer for the company, whose position Applicant 
assumed, has known Applicant for five years and is his friend. He stated that he “had 
many opportunities to observe [Applicant] in various situations and I have seen that he 
can be counted on to do the right thing, always.” (AE T.) Applicant’s mother wrote a 
supportive letter. (AE U.) In a letter dated March 25, 2012, Applicant’s supervisor wrote:  
 
I have no reservations in working with [Applicant], and recommending him 
for a Secret clearance. He has been open with me on the fact that there 
has been an ongoing investigation on his clearance eligibility. He has not 
tried to hide this issue, and I am confident that he is a trustworthy person 
that has matured, and is solidly moving forward in this next stage of his 
life. (AE S.) 
 
 Applicant stated that his supervisor and colleagues are aware of his 
incarceration, but not the underlying crime. His family and friends know the 
circumstances involved. (Tr. 78.)  
 
 
 
 
 
5 
 A government investigator interviewed Applicant between June and August 2010 
regarding his criminal past. In his summary of that interview, the investigator noted that 
Applicant was “deeply remorseful of his past criminal conduct. [Applicant] has no future 
intention of committing criminal conduct. . . [He] regrets his past actions and has 
attempted to better himself by earning his degrees and working hard at his jobs.’’(GE 3 
at 113.) The investigator said Applicant was “completely cooperative.” (Id.)  
 
 While testifying, Applicant expressed deep remorse over his criminal conduct and 
indicated that he has not been arrested or charged with any criminal incident since 
November 2005. (Tr. 33, 82.) He has changed over the last six years and his life now 
consists of his family and work. The negative factors previously in his life are no longer 
present and his education has taught him to think differently. (Tr. 64.) In his closing 
argument, he stated that “I’m not the same person I was when I committed those 
crimes. I am a dedicated husband and father and want to create a better life for my 
family.” (Tr. 83.) He has “the courage to speak to either groups of individuals or even 
individuals one-on-one so they can learn from my mistakes.” (Tr. 83.) He candidly 
answered questions. He spent time preparing his case and assembling exhibits.  
   
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the Adjudicative Guidelines. In addition to brief 
introductory explanations for each guideline, the Adjudicative Guidelines (AG) list 
potentially disqualifying conditions and mitigating conditions, which are useful 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. The administrative judge’s overarching 
adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶¶ 
2(a) and 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. Likewise, I have avoided drawing inferences 
grounded on mere speculation or conjecture. 
 
Directive ¶ E3.1.14 requires the Government present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, “[t]he 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, and has the 
 
 
 
 
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ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7 
of Executive Order 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.”  
 
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. 
 
Analysis 
 
Guideline J, Criminal Conduct 
The security concerns regarding criminal conduct are set forth 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 six conditions that could raise a security concern, four of 
which may be disqualifying in this case: 
(a) a single serious crime or multiple lesser offenses; 
(c) allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted; 
(e) violation of parole or probation, or failure to complete a court-mandated 
rehabilitation program; and, 
 
(f) conviction in a Federal or State court, including a court-martial of a 
crime, sentenced to imprisonment for a term exceeding one year and 
incarcerated as a result of that sentence for not less than a year.1  
 
                                            
1 Effective January 1, 2008, The Bond Amendment repealed the Smith Amendment that disqualified all 
persons working for the DoD from holding a security clearance if they had been incarcerated for one year 
or more. Under The Bond Amendment, said restriction applies only to applicants seeking clearances that 
provide access to Special Access Programs (SAP), Restricted Data (RD), or Sensitive Compartmented 
Information (SCI).   
 
 
 
 
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Applicant has a history of criminal conduct. He was convicted of serious crimes in 
1994 and 2005, and a lesser offense in 1993. He admitted using marijuana, an illegal 
substance, in 2004, and being arrested for criminal mischief in 2003. When he was 
arrested for murder in 1994, he was still on probation for the 1993 offense. He was 
sentenced to prison for 20 years, and served seven. The Government established the 
four disqualifying conditions.  
 
 After the Government raised disqualifying conditions, the burden shifted to 
Applicant to provide evidence to rebut or to prove mitigation. AG ¶ 32 provides 
conditions that could mitigate security concerns: 
(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; 
(b) the person was pressured or coerced into committing the act and those 
pressures are no longer present in the person's life; 
(c) evidence that the person did not commit the offense; 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. 
 The record evidence supports the application of AG ¶ 32(d). In July 1994 
Applicant committed a serious crime, resulting in his incarceration for seven years. That 
crime occurred about 18 years ago. Four and a half years after being released from 
prison early for good behavior in July 2001, he committed another serious offense, OWI 
involving endangerment, in November 2005. Since that time Applicant completed his 
sentence and continued rehabilitating himself. In July 2006 he began working for his 
employer as a contractor. In May 2007 he finished his second bachelor’s degree and 
received honors his last two semesters. In 2007 or 2008 his employer hired him as a 
fulltime electrical engineer. In 2009 he married his wife. His 2008, 2009, 2010, and 2011 
performance evaluations document his successful employment. Four colleagues attest 
to his competency. His supervisor considers him to be trustworthy and reliable. The 
2003 criminal mischief charge was dismissed. There is no evidence that Applicant has 
used illegal substances since June 2004.  
 
 Applicant is visibly remorseful and embarrassed by his past. He spoke candidly 
of his criminal conduct and expressed the changes he has made in his personal and 
professional life. He has new friends, a good job, and focuses on his wife and child. 
 
 The evidence does not support the application of the other three mitigating 
conditions under AG ¶ 32. 
 
 
 
 
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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). They include the following:  
 
(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.  
 
 According to AG ¶ 2(c), the ultimate determination of whether to grant eligibility 
for a security clearance must include an overall commonsense judgment based upon 
careful consideration of the guidelines and the whole-person concept.        
 
I considered potentially disqualifying and mitigating conditions in light of all facts 
and circumstances in this case. Applicant is a 38-year-old man, who has a history of 
significant criminal conduct. Several mitigating facts weigh in favor of granting Applicant 
a security clearance. Applicant served seven years on a 20-year sentence for the 1994 
murder/burglary. He was released from prison 13 years early as a consequence of good 
behavior and earning a college degree. He successfully completed his sentence for the 
2005 OWI involving endangerment, and has not been involved in any other criminal 
conduct. There is no other derogatory evidence in the record of alcohol-related 
offenses, or of illegal-drug-related misconduct since the June 2004 use of marijuana.  
 
Since July 2006, when Applicant began a position with his current employer, he 
has demonstrated professional growth and personal maturity. He earned a second 
bachelor’s degree that, in all probability, propelled him into his current role as an 
electrical engineer.  
 
A colonel, who worked with Applicant in 2009, complimented him on his 
participation and work on a military project. His supervisor gave him excellent 
performance evaluations for his work as an engineer for the last four years and 
expressed confidence in his abilities and trustworthiness.  
 
Applicant presented exhibits pertaining to his continued pursuit of education and 
documenting his accomplishments. His successful employment for the last six years 
attests to a dedication to his job and overall change in his character. Colleagues 
positively address his reliability and work ethic. They are aware of his previous 
incarceration, decreasing the potential for coercion or exploitation. His family and 
friends are also aware of his criminal history.  
 
 
 
 
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Of significance are Applicant’s candid remorse and humility regarding his criminal 
history. He recognizes his mistakes and takes complete responsibility for his behavior. 
All of his rehabilitative efforts, during prison and since November 2005, make evident 
his commitment to change.  
 
Substantial evidence, however, weighs against granting Applicant a security 
clearance. In February 1993 he was arrested for theft and later convicted of property 
conversion. In July 1994, while on probation, he was arrested for murder and 
subsequently spent seven years in prison for a reduced charge of burglary. Although he 
was released early from a 20-year sentence, he remained on parole for about 21 
months or until approximately April 2003.  In September 2003 he was arrested for a 
misdemeanor charge that was later dismissed. About a year later, he experimented with 
marijuana, an illegal substance, for one week in June 2004. In November 2005 he used 
extremely bad judgment when he decided to drive after becoming intoxicated. He 
crashed his car and left the scene of the accident and his brother, who was seriously 
injured in that accident. As a consequence, sometime in early 2006 he was placed on 
probation for another year, or until sometime in early 2007.  
 
While Applicant’s record of rehabilitation and accomplishments continues to be 
impressive and encouraging, it does not outweigh the seriousness of the 1994 crime 
and the fact that about four years after leaving prison he consumed alcohol and drove a 
car, resulting in another serious crime. At this time the length of successful rehabilitative 
efforts does not outweigh the approximately 14 years that he has spent in the criminal 
justice system, on and off. 
 
Overall, the record evidence leaves me with questions as to Applicant’s eligibility 
and suitability for a security clearance at this time. For all these reasons, I conclude 
Applicant did not sufficiently mitigate the security concerns arising under criminal 
conduct. 
  
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.e:    Against Applicant 
  
 
 
 
 
 
 
 
 
 
 
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Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the interests of national security to grant Applicant eligibility for a 
security clearance.  Eligibility for access to classified information is denied. 
 
                                                 
     
_________________ 
SHARI DAM 
Administrative Judge