1
 
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 11-10789
)
Applicant for Security Clearance )
Appearances
For Government: Robert J. Kilmartin, Department Counsel
For Applicant: Pro se  
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the pleadings and exhibits, Applicant’s eligibility for
access to classified information is denied.
Statement of the Case
Applicant completed and certified an Electronic Questionnaire for Investigations
Processing (e-QIP) on April 7, 2011. The Department of Defense (DOD) issued
Applicant a Statement of Reasons (SOR) on April 24, 2013, 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; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance
Review Program (January 2, 1992), as amended (Directive); and the Adjudicative
Guidelines For Determining Eligibility for Access to Classified Information (AG),
implemented on September 1, 2006. 
 
Item 3.1
2
Applicant received the SOR. He submitted a notarized, written response to the
SOR allegations dated June 5, 2013, and requested a decision on the written record in
lieu of a hearing. 
Department Counsel prepared a file of relevant material (FORM) and mailed
Applicant a complete copy on July 11, 2013. Applicant received the FORM on August
13, 2013. He had 30 days from receipt of the FORM to file objections and submit
material in refutation, extenuation, or mitigation. He did not submit a response. DOHA
assigned this case to me on October 17, 2013. The Government submitted 13 exhibits,
which have been marked as Items 1-13 and admitted into the record. Applicant’s
response to the SOR has been marked and admitted as Item 3, and the SOR has been
marked as Item 1.
Procedural Rulings
In his brief, Department Counsel submitted a motion requesting that the SOR ¶¶
1.a, 1.h, and 1.p be amended to conform with the evidence. SOR allegation 1.a alleges
that Applicant was arrested on June 29, 2009 for driving under the influence of
intoxicants (DUII). In his response, Applicant stated that this arrest occurred on June 29,
2007. The police arrested Applicant on June 29, 2007 on a bench warrant issued after
he failed to appear in court following his June 8, 2007 DUI arrest. SOR allegation 1.a is
amended to reflect the correct date of arrest as June 29, 2007. SOR allegations 1.h and
1.p state that Applicant provided false information on his December 23, 2012 sworn
affidavit. The actual date of the sworn affidavit is December 13, 2012. SOR allegations
1.h and 1.p are amended to reflect December 13, 2012 as the correct date of the sworn
affidavit.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a,
1.c, 1.f, 1.g, 1.j - 1.q, and 1.s of the SOR. He admitted with explanation the factual
allegations in ¶¶ 1.b and 1.r. His admissions are incorporated herein as findings of fact.
He denied the general security concern in ¶ 1 of the SOR. He neither admitted nor
denied the factual allegations in SOR ¶¶ 1.d, 1.e, 1.h, and 1.i. These allegations are
deemed denied. After a complete and thorough review of the evidence of record, I make
the following findings of fact.  
Applicant, who is 52 years old, works as an instructor for a DOD contractor. He
began his current employment in August 2006. He previously worked as a mail carrier
for four years and in the automobile industry for 12 years.1
Applicant graduated from high school in 1979. He attended college for one
semester after high school. Applicant served in the United States Army from 1981 until
1984. He received an honorable discharge from the Army in 1984. Applicant married in
Item 4; Item 5; Item 6.2
Department Counsel submitted two copies of the January 1992 and the March 1992 court records. Item 9.3
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1985 and divorced in 2009. Applicant has a son, who is an adult. Applicant moved
across country in 2006, leaving his home of many years.2
Criminal Allegations
SOR allegation 1.s alleges that Applicant has been charged or cited for at least
29 criminal or motor vehicle violations. In support of this allegation as well as the
allegations in SOR ¶¶ 1.a, 1.d, 1.e, and 1.g, the Government submitted documentation
which is marked as Items 8-13.
The Government’s documentation shows an arrest in April 1987 for possession
of cocaine after police conducted a search of Applicant’s home. The court results of this
arrest and the charges are not in the record. (Item 11). The police arrested Applicant in
January 1992 on four charges related to menacing, resisting arrest, disorderly conduct,
and criminal trespass, all misdemeanor offenses. (Item 9) The court dismissed the first
two charges and consolidated the remaining charges with another case (no
information), then dismissed this case. (Item 9) In March 1992, the police again arrested
him for theft, and the court convicted him on a misdemeanor theft charge. (Item 9)   3
While away on vacation and business travel in July 1998, Applicant asked a
friend to watch his house. During the first week of Applicant’s trip, the police conducted
a search of Applicant’s home with a valid search warrant. The search revealed nine
marijuana plants growing in Applicant’s basement. The police arrested his friend and
charged the friend with growing marijuana. Applicant denied any knowledge of or
involvement in this activity. The record lacks any evidence that Applicant was arrested
by the police and charged with growing marijuana. Applicant does not associate with
this friend anymore. (Items 5, 6, 12)
The police arrested and charged Applicant on three misdemeanor harassment
counts on May 27, 1999. The court convicted him on one misdemeanor charge and
dismissed the two remaining charges.(Item 9) Applicant sponsored a barbecue for his
family and friends at his house on July 4, 1999. He heard his neighbors yelling racial
slurs at his wife, children, and friends. He and his neighbor argued. Their argument
escalated to the neighbor spraying him with a hose, and Applicant throwing firewood in
the neighbor’s yard. The police were called. Both were arrested and charged with
disorderly conduct. A few days later, the police issued Applicant a second summons,
charging him with possession of less than 1 gram of marijuana, a misdemeanor offense,
following a July 6, 1999 lab report showing that the substance found in a plastic bag in
the back seat of the patrol car where he was placed after his arrest contained 2.3 grams
of marijuana. Applicant denied that the marijuana was his and that he placed it in the
police car. The record does not contain the court disposition of this summons. (Items 5,
6, 9, 10) However, the court convicted Applicant of the disorderly conduct misdemeanor
Department Counsel submitted two copies of the May 27, 1999 and July 4, 1999 court records. Item 9.4
The report does not define this term, which also relates to prescription drugs.5
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offense, then deferred his sentence. The court dismissed the judgment in 2003. (Items
5, 6, 9)4
 Applicant received a motor vehicle violation notice in September 2000 for
exceeding the maximum speed and failure to display insurance. He paid the fine. (Item
8) In January 2003, he received a motor vehicle violation notice for failure to obey a
traffic control device. He paid the fine. (Item 8) Applicant received a second motor
vehicle violation notice for failure to obey a traffic device in May 2006, and the court
found him guilty of this infraction when he failed to appear for his court hearing. He paid
the fine and received a refund. (Item 8)
On June 8, 2007 and over the course of the day, Applicant took one and one-half
tablets of vicodin for pain after a root canal. Later that day, he consumed alcohol at a
club with friends. After he left the club, the police stopped him because he was driving
erratically. The police officer smelled alcohol and noticed cup with liquid in his car.
Applicant failed a field sobriety test ,and the police arrested him for DUI. The
breathalyzer test results registered a .06%, which the reports indicate was below the
legal limit. The report to the Department of Motor Vehicle indicates that Applicant did not
fail the breathalyzer test or refuse to take the test. The police took a urine sample for
testing. Because Applicant failed the field sobriety test, because of his appearance, and
because he tested under the legal limit, the police requested a drug influence evaluation
by a drug recognition expert. The drug expert knew Applicant used vicodin and
consumed alcohol on this date. The drug expert concluded that Applicant was under the
influence of alcohol and a narcotic analgesic.   During his detention, Applicant told the5
police officer that his urine test would be positive for the marijuana he smoked two
weeks earlier. The report on Applicant’s urine analysis showed 9-Carboxy-THC, which
is a marijuana metabolite. (Item 13) The arresting police officer charged Applicant with
DUI and having an open container in his car. Applicant was convicted of having an open
container in his vehicle.
The Government offered Item 7 as proof of multiple infractions and arrests for
Applicant. Item 7 is a local police department personal information sheet on Applicant.
The sheet identifies an incident number, a date, an involvement type, and an incident
type. On page one, the involvement type indicates parent, other, victim, involved,
arrested, and driver. This page shows one arrest on June 8, 2007 for DUI and lists
Applicant as the driver on this date. The other information does not explain Applicant’s
role in the incidents. The “parent” reference suggests that his child was involved in the
theft incident, and the “victim” reference suggests that he was the victim of theft. The
“other” reference concerns a house fire and a theft. The remaining two pages of this
document list 24 incidents between 1985 and 2001, which involve Applicant. The listing
does not  clearly explain Applicant’s role, such as victim, doer, or reporter, in these
incidents. On the left of each incident, the letters “V, O, and S” are noted without more
As a general rule, the IRS must prepare and file an assessment of income tax it believes due within three6
years after the return is filed. See 26 U.S.C. § 6501(a). Once an assessment is complete, it has 60 days to
give notice and a demand for payment of the tax due to the person liable. See 26 U.S.C. § 6303(a). Once the
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information. On the very right column of each incident, the status is noted with the
letters “ EN, O, D, A, or U” without any explanation of their meaning. Of the 24 incidents
listed, only the July 4, 1999 arrest is listed. The first item listed on page two appears to
reference a motor vehicle accident with no injury and the left column has the letter ”V”
which may mean victim. This report is insufficient on its face to establish 24 separate
incidents of criminal arrests or motor vehicle violations because it lacks clarity.
The documentary evidence submitted by the Government establishes that
Applicant was arrested on six separate occasions, which resulted in 12 misdemeanor
charges and four convictions, and that he received three motor vehicle violations.
Except for his 2007 DUI arrest, Applicant’s arrests occurred between 1987 and 1999.
His motor vehicle violations occurred between 2000 and 2006.
Employment
Applicant worked for an automobile company from 1989 until 2001. When he met
with the Office of Personnel Management (OPM) investigator in December 2012, the
OPM investigator asked why he left his position with this company. Applicant advised
that his company began random drug testing in 2000 and that he failed the drug test the
first time he took the test. He explained that his supervisor offered to continue his
employment if he attended drug counseling or took vocational training in another state
many miles from his home. Applicant did not wish to move, and he believed the
company to be in financial trouble. He decided to voluntarily quit. He emphatically stated
that he was not involuntarily terminated from his job. His sworn affidavit and the
summary of his interview do not indicate that the OPM investigator presented him with a
document showing he was involuntarily terminated from this job, and the record
contains no such evidence. (Items 5, 6)
Financial
During his second interview with the OPM investigator, Applicant acknowledged
that he filed for bankruptcy in the 1980s or 1990s and that he had not had any financial
problems since that time. In his answer to the SOR, Applicant admitted filing bankruptcy
in 1991, but denied any knowledge about the case being reopened or terminated.
Information related to his 1991 bankruptcy and the 2004 reopening followed by a
termination of the case is not in the record. (Items 5, 6)
Applicant provided information to the OPM investigator about owing taxes to the
Internal Revenue Service (IRS) in the past. Applicant always filed his tax returns. After
he filed his tax return in 2008, the IRS determined that he owed an additional $2,442
because of the sale of his house after he moved in 2006. He paid these taxes to the IRS
over a few months in 2008 by way of a deduction from his salary.  Applicant recalls that6
notice and demand are made, a lien in favor of the United States automatically arises. See 26 U.S.C. § 6321.
The IRS must file a levy or institute court proceedings within 10 years after the tax assessment to collect the
tax lien. See 26 U.S.C. § 2602(a)(1); United States v. Galletti, 541 U.S. 114, 119 (2004). The running of the
statute of limitations is tolled during a bankruptcy proceeding, see United States v. Doe, 438 F.Supp.2d (S.D.
Ohio 2006), by agreements (made before Dec. 20, 2000), see United States v. Ryals, 480 F.3d 1101,
1106(11th Cir. 2007), or while an offer in compromise (made on or after Dec. 31, 1999) is pending. 26 U.S.C.
§ 6404(a) provides for abatement of an assessment when it is uncollectible. The state law also generally
follows the 3-year and 10-year statute of limitations used by the IRS. See Code § 12-54-85.
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he voluntarily returned a truck to the car dealer on the advice of the finance company
after he fell behind in his payments in 2006. Applicant did not consider the voluntary
return of his truck a repossession nor did he consider the payment of his additional
taxes owed a garnishment. Applicant’s statement is the only evidence on these issues.
(Items 5, 6)
Drugs
Applicant told the OPM investigator that he smoked marijuana two to three times
a year with friends from 1984 until 2002. He denied purchasing marijuana at any time,
and he denied using marijuana after 2002. As previously discussed, Applicant denied
that he had marijuana when he was arrested on June 8, 2007. He also denied that he
he had possession of marijuana when he was arrested in July 1999 and that he placed
it in the back of the patrol car. The police summary of the events connected to his June
8, 2007 arrest reflect that he told the police that he would probably test positive for
marijuana because he had smoked marijuana about two weeks earlier. (Item 13)
Falsification
Section 22 of the e-QIP requests information about Applicant’s police record. The
directions advise that an applicant need only respond to questions 22a and 22b in the
time frame of the last  seven years. Questions 22c, 22d, and 22e specifically request an
applicant to answer affirmatively or negatively if the applicant had “EVER” been charged
with a felony, firearms or explosives offense, or alcohol or drug offense. Section 23
requests specific information about illegal use of drugs or drug activity. Questions 23a,
23c, and 23d limit an applicant’s answer to the last seven years while question 23b asks
if an applicant has “EVER” used an illegal drug when holding a security clearance.
Finally, Section 26 asks multiple questions about an applicant’s finances. Applicant
completed his e-QIP on April 6, 2011 and signed it on April 7, 2011. (Item 4)
SOR ¶¶ 1.b, 1.c, 1.f, and 1.j - 1.n, allege that Applicant deliberately provided
false information on his e-QIP about his police record, his drug activity, and his financial
record. SOR ¶¶ 1.h, 1.I, 1.p, and 1.q allege that Applicant deliberately provided false
information on his December 2012 sworn affidavit and in his December 2012 personal
subject interview. During his December 2012 interviews and in his sworn affidavit signed
on December 13, 2012, Applicant states that he was not fired from his job with the
automobile company and that he did not list his drug and alcohol arrests because he
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thought he needed to go back only seven years. He also said that he could not recall all
of the incidents and that he did not have access to the records of his arrests. (Item 1)
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 list potentially
disqualifying conditions and mitigating conditions, which are 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, 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(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, an applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An
applicant has the ultimate burden of persuasion for obtaining 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 an 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 Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
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applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.
AG ¶ 16 describes the disqualifying conditions that could raise security concerns.
I have considered all the conditions, and the following are potentially applicable: 
(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or
similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities;
(b) deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent
medical authority, or other official government representative;
(c) credible adverse information in several adjudicative issue areas that is
not sufficient for an adverse determination under any other single
guideline, but which, when considered as a whole, supports a whole-
person assessment of questionable judgment, untrustworthiness,
unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the person may not
properly safeguard protected information;
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the
person may not properly safeguard protected information. This includes
but is not limited to consideration of:
* * * 
See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-231337
at 5 (App. Bd. Jun. 9, 2004)).
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(3) a pattern of dishonesty or rule violations.
For AG ¶ 16(a) to apply, Applicant’s omission must be deliberate. The
Government established that Applicant omitted material facts from his April 2011 e-QIP
when he failed to acknowledge his past drug use, his criminal record, and his negative
financial information. This information is material to the evaluation of Applicant’s
trustworthiness and honesty. In his personal subject interview, he denied that he
intentionally withheld this information; however, in his answers to the SOR he admits to
intentional falsification with the explanation in his response to SOR allegation 1.f of
“Why? I referenced (in the Past 7 years).” He denies an intent to deceive the
Government. When the allegation of falsification is controverted, the Government has
the burden of proving it. Proof of an omission, standing alone, does not establish or
prove an applicant’s intent or state of mind when the omission occurred. An
administrative judge must consider the record evidence as a whole to determine
whether there is direct or circumstantial evidence concerning an applicant’s intent or
state of mind at the time the omission occurred.7
Applicant admits that he falsified his answer on the e-QIP when he failed to list
his DUI arrest in June 2007, which was about four years prior to his completion of his e-
QIP. SOR allegations 1.b and 1.c raise security concerns under AG ¶ 16(a). Section 22,
question e (SOR allegation 1.e) requests Applicant to disclose any alcohol or drug
arrests. Applicant qualified his answer to this allegation when he said he referenced the
last seven years. Even if he only considered his arrests for the seven years prior to April
2011, he needed to list his 2007 DUI arrest. Given his acknowledgment that he
deliberately failed to list this arrest in his answer to SOR ¶¶ 1.b and 1.c, I find that he
deliberately failed to list the 2007 DUI arrest in response to question e in Section 22 and
a security concern is raised by SOR allegation 1.f. His failure to list the arrests
mentioned in SOR allegations 1.d and 1.e, which date back many years beyond seven
years was not intentional.
The police report and the citation reflect that Applicant received a summons on
June 8, 2007 for DUII and an open container. The record contains a toxicology report
dated August 1, 2007, which reflects that marijuana was found in Applicant’s urine. The
record does not indicate that Applicant received this report, and the summons does not
show that Applicant was arrested for marijuana use. Applicant admitted to the contents
of the report in his response. SOR allegation 1.g, that he was arrested for  marijuana
use on June 8, 2007 or June 29, 2007, is not supported by the police report or the
summons. However, because the toxicology report showed the presence of a marijuana
metabolite in his urine in June 2007 and in light of his statements to the arresting officer,
a finding that Applicant deliberately falsified his answer to question a in Section 23 is
supported by the evidence. SOR allegation 1.j is found against Applicant.
I take administrative notice of the generally recognized fact that creditors can only garnish a debtor’s income8
after obtaining a judgment in court then filing a writ of garnishment with the court asking that the court issue
an order of garnishment.
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Section 26 asks multiple questions about an applicant’s finances. SOR
allegations 1.k and 1.l concern Applicant’s failure to provide information about his
decision to voluntarily return his truck to the car dealer after he missed several monthly
payments. In his personal subject interview and in his sworn affidavit, Applicant stated
that he missed several payments on his truck, which led to a decision to return his truck
to the car dealer as instructed by the finance company. He further stated that he did not
consider the return of his truck by him to the car dealer a repossession. In his response
to the SOR, he admitted to these allegations, which conflicts with his previous sworn
statement.  Applicant was aware that he had missed payments on his truck in 2006.
Based on this knowledge and his admission, I find that SOR allegation 1.l establishes a
security concern under AG ¶ 16(a). Applicant’s statement that he did not believe that his
return of his truck to the car dealer was a repossession is reasonable. Thus, at the time
he completed his e-QIP, he did not intentionally falsify his answer to SOR allegation 1.k,
which is found in favor of Applicant.
SOR allegations 1.m and 1.n relate to the taxes Applicant owed to the IRS in
2008 following the sale of his house. Section 26, question c states : “Have you failed to
pay Federal, state, or other taxes, or to file a tax return, when required by law or
ordinance?” Applicant filed his taxes each year. In 2008, the IRS determined that he
owed additional taxes following the sale of his house. When he received this information
from the IRS, he made arrangements to pay the taxes owed. He did not falsify his
answer to this question at the time he completed his e-QIP. Federal law requires the
IRS to give Applicant notice of taxes owed and make a demand for payment, which the
IRS did according to Applicant’s statement. Once this step is taken, an automatic lien
attaches to Applicant. To legally collect the taxes owed, federal law requires the IRS to
file a levy or institute court proceedings to collect the taxes owed within 10 years. There
is no evidence that the IRS filed a levy or instituted court proceedings to collect the
taxes owed.  Rather, Applicant reached an agreement with the IRS to pay the taxes8
owed through a deduction from his paycheck. While such a deduction may be
characterized as a garnishment on his check, because he agreed to the deduction, it is
more like an allotment. Applicant did not falsify his e-QIP answers as alleged in SOR ¶¶
1.m and 1.n. These allegations are found in favor of Applicant.
Given that Applicant told the arresting police officer in June 2007 that marijuana
would probably be found in the urine analysis test because he had smoked marijuana
two weeks earlier, Applicant intentionally falsified his sworn affidavit and intentionally
provided false information during his personal subject interview when he said that he
had not used marijuana since 2002. SOR ¶¶ 1.h and 1.i establish a security concern
under AG ¶16(b). The record does not reflect that he received a copy of the August 1,
2007 toxicology report.
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SOR ¶¶ 1.p and 1.q allege that Applicant was involuntarily terminated from his
employment in the automobile industry and that he provided false information about his
termination in his sworn statement and personal subject interview. The summary of his
personal subject interview shows that “when asked about previous employments,”
Applicant discussed his employment and reasons for leaving his job in the automobile
industry. The summary does not indicate that Applicant was presented with any
information reflecting that he had been involuntarily terminated from his employment nor
does the record contain such documentation. Applicant admitted these allegations in his
response to the SOR; however, he made it very clear in his meeting with the OPM
investigator and in his sworn affidavit that he was not fired. His SOR answer conflicts
with his statements to the investigator and in his sworn statement. In weighing this
information, I find that Applicant’s sworn affidavit and personal subject interview are
more persuasive. SOR ¶¶ 1.p and 1.q are found in favor of Applicant. 
As shown by the evidence, Applicant was arrested in April 1987 on drug charges
and in 1999 for disorderly conduct. In 2007, the police arrested him and charged him
with DUII and an open container violation. The August 1, 2007 toxicology report showed
marijuana in his urine. The records lacks any evidence of a 1982 arrest. SOR ¶¶ 1.a,
1.d, 1.e, and 1.g establish a security concern under AG ¶ 16(c) because these events
would be mitigated by the passage of time under the alcohol consumption and criminal
conduct guidelines, but raise questions about Applicant’s judgment and reliability under
a whole-person analysis. 
The record establishes that between 1987 and 1999 Applicant was arrested six
times for criminal conduct such as theft, disorderly conduct, and harassment. These
arrests included a total of 12 different criminal charges. Between 2000 and 2006, he
received three motor vehicle violations and in 2007, the police arrested and charged
him with DUII and an open container. The record evidence establishes seven arrests
with a total of 14 charges and three motor vehicle violations, which is significantly under
the “at least” 29 incidents alleged in SOR ¶ 1.s. While Applicant admitted this allegation,
he admitted to incorrect information in the allegation making his admission invalid. SOR
¶ 1.s is found in favor of Applicant.
Finally, SOR ¶ 1.o asserts that Applicant was involuntarily terminated from his job
in the automobile industry. Even though he admitted this allegation in his response to
the SOR, Applicant clearly stated in his personal subject interview and in his sworn
statement that he decided to leave his employment and that he was not fired. Since
there is no evidence that Applicant was involuntarily terminated (fired) from this job, his
previous statements are credible and accorded determinative weight. This allegation is
found in favor of Applicant. SOR allegation 1.r raises no security concern due to age
and the lack of information about the reopening of the 1991 bankruptcy case in 2004.
                             
The Personal Conduct guideline also includes examples of conditions that can
mitigate security concerns. I have considered mitigating factors AG ¶ 17(a) through ¶
17(g), and the following are potentially applicable:
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(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(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;
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable
reliability; and,
(g) association with persons involved in criminal activity has ceased or
occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules
and regulations.
Applicant intentionally falsified his answers to five questions on his e-QIP, and in
his sworn statement and during his personal subject interview, he intentionally provided
false statements about his marijuana use after 2002. Applicant has not provided a
rational explanation for his conduct nor has he provided evidence which supports
mitigation of SOR ¶¶ 1.b, 1.c, 1.f, 1.h, 1.i, and 1.l under AG ¶ 17(a) through ¶17(g).
Applicant’s involvement with illegal drugs and criminal conduct extends over a
long period of time. I have considered the above mitigating conditions and conclude that
none of them apply because the Applicant has not provided evidence showing a change
in his behavior which would eliminate or reduce his vulnerability to exploitation,
manipulation, or duress or which would support the grant of a security clearance.
Applicant has not mitigated the security concerns raised by SOR ¶¶ 1.a, 1.d, 1.e, and
1.g.
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 an applicant’s
conduct and all relevant circumstances. The administrative judge should consider the
nine adjudicative process factors listed at AG ¶ 2(a):
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(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 guidelines and the whole-person concept. The decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct,
but on a reasonable and careful evaluation of all the evidence of record to decide if a
nexus exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Beginning as
a young adult, Applicant became involved in activities which brought him to the attention
of the police and courts. After many years of inappropriate conduct, Applicant started to
change his conduct. His arrests for minor criminal infractions stopped. However, he
continued to violate the rules of the road which resulted in traffic violations and
ultimately, a DUI in 2007. While it has been six years since this offense, Applicant has
not been forthcoming about this arrest and the circumstances surrounding his behavior
that day. Applicant was fully aware that his conduct in the past could create problems
for his eligibility for a security clearance. He chose not to provide the necessary
information for a full and fair evaluation of his background. His decision to hide
information from the Government reflects negatively on his trustworthiness to hold a
security clearance.
Overall, the record evidence leaves me with questions or doubts as to Applicant’s
eligibility and suitability for a security clearance. For all these reasons, I conclude
Applicant has not mitigated the security concerns arising from his personal conduct
under Guideline E.
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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 E: AGAINST APPLICANT
Subparagraphs 1.a-1.j: Against Applicant
Subparagraph 1.k : For Applicant
Subparagraph 1.l: Against Applicant
Subparagraphs 1.m-1.s: For 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.
                                                              
MARY E. HENRY
Administrative Judge