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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No.12-11559 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Christopher Morin, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines J (Criminal 
Conduct) and E (Personal Conduct). Eligibility for access to classified information is 
denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (SCA) on June 12, 2012. On 
February 19, 2014, the Department of Defense (DOD) sent him a Statement of Reasons 
(SOR) alleging security concerns under Guidelines J and E. The DOD acted 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 (AG) implemented by DOD on September 1, 2006.  
 
 Applicant received the SOR on February 21, 2014; answered it on March 21, 
2014; and requested a hearing before an administrative judge. Department Counsel 
was ready to proceed on April 21, 2014, and the case was assigned to me on May 1, 
2014. On the same day, the Defense Office of Hearings and Appeals (DOHA) issued a 
 
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notice of hearing, scheduling the hearing for May 13, 2014. On April 21, 2014, 
Department Counsel provided Applicant’s attorney with copies of the documents he 
intended to submit at the hearing. (Hearing Exhibit (HX) I.) He provided the documents 
to Applicant on April 29, 2014. (HX II.)1 I convened the hearing as scheduled. Applicant 
waived the 15-day notice requirement in the Directive ¶ E3.1.8. (Tr. 9-10.) Government 
Exhibits (GX) 1 through 6 were admitted in evidence without objection. Applicant 
testified and submitted Applicant’s Exhibits (AX) A through N, which were admitted 
without objection.2 DOHA received the transcript (Tr.) on May 21, 2014. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted the allegations in ¶¶ 1.a-1.d and 
1.g-1.n. There is no ¶ 1.e in the SOR. He admitted the conviction in ¶ 1.f but denied the 
underlying conduct. He admitted ¶ 2.a, which cross-alleges the allegations in ¶¶ 1.a-1.d 
and 1.f-1.n. He denied the allegations of falsification in ¶¶ 2.b-2.f, but he admitted the 
foreign contacts alleged in ¶¶ 2.e.1 and 2.e.2. His admissions in his answer and at the 
hearing are incorporated in my findings of fact.  
 
 Applicant is a 37-year-old employee of a defense contractor. He has worked for 
his current employer since June 2012. He previously worked for defense contractors in 
Afghanistan from February 2009 to February 2010 and from May 2011 to May 2012, 
and in Kyrgyzstan from June to September 2012, serving in several jobs, including 
laborer, supply specialist, truck driver, and movement control lead. (GX 1 at 13-17; GX 
3 at 1; AX C; Tr. 74-78.) He received a favorable trustworthiness determination before 
his deployment to Afghanistan in May 2011, but he has never held a security clearance. 
 
While deployed to Afghanistan, Applicant earned a reputation for dedication, hard 
work, and dependability. (AE L.) A former supervisor commented, “[Applicant] was a 
very driven and hardworking employee. If a task needed to get done, he could always 
be counted on to do the job right the first time.” (AX E at 2.) In September 2011, he 
received a certificate of appreciation from an Army field support brigade in Afghanistan. 
(AE M.) In October 2011, he received a certificate of appreciation from his employer for 
his Afghanistan service. (AE N.) A PowerPoint briefing slide prepared by his employer 
recognized him for his “incomparable initiative,” his “above and beyond drive in his 
approach to the daily tasks,” and his “can do” attitude. (AE O.)  
 
 A friend of Applicant, who has known him for seven years, considers him honest, 
hardworking, dependable, and dedicated. (AX K at 1.) Another friend, who has known 
him for six years, is aware of his overseas service and confident that he would never 
                                                          
1 Applicant was represented by an attorney when he responded to DOHA interrogatories and the SOR, 
but he chose to represent himself at the hearing. (Tr. 6-7.)  
 
2 Applicant attached 15 exhibits to his answer to the SOR, labeled as Exhibits A through O. To distinguish 
the exhibits attached to Applicant’s answer to the SOR from the exhibits submitted at the hearing, the 
exhibits attached to his answer are identified in this decision as Answer Exhibits (AE) A through O. The 
exhibits submitted at the hearing are identified as Applicant’s Exhibits (AX) A through N. 
 
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compromise classified information (AX G.) A third friend, a retired Army master 
sergeant, describes him as polite, well-mannered, and appearing to have found 
happiness in being a team player and working alongside military personnel. (AX F.) 
 
 Applicant is the youngest of three siblings. He has a 42-year-old sister and a 39-
year-old brother. He has never married and has no children. He dropped out of high 
school after completing the tenth grade. (GX 3 at 2; Tr. 116.) After dropping out of 
school, he spent his time “hanging out, going to clubs and trying to party and stuff.” (Tr. 
117.) He received his general educational development (GED) certificate in June 1995. 
He was 18 years old when he found his first job. He worked as a truck driver in the 
private sector from January 1995 to March 2005. He was unemployed from March 2005 
to October 2006. He worked as a temporary employee for an aircraft tire manufacturer 
from October 2006 to December 2008, was laid off after a strike at the company, and 
was unemployed from December 2008 to February 2009. (GX 1 at 17-20; GX 3 at 3.) At 
the hearing, he presented information from an unknown source reflecting that his home 
town is among ten towns having the lowest median incomes in the United States. (AX 
A.) 
 
 The evidence concerning the criminal conduct alleged under Guideline J is 
summarized below in chronological order and in reverse alphabetical order of the 
subparagraphs in the SOR. 
 
 SOR ¶¶ 1.m and 1.n. In February 1995, Applicant was riding in a car with an 
acquaintance after attending a night club. For reasons not reflected in the record, his 
acquaintance fired a handgun, they were stopped by police, and both were charged with 
felony use of a firearm in the commission of a felony. The police found gunpowder 
residue on his acquaintance’s hands but none on Applicant’s hands. Applicant provided 
evidence against his acquaintance. The charges against Applicant were dismissed, the 
acquaintance was released on bail, and the court ordered them to not come within 100 
feet of each other. According to Applicant, his acquaintance approached him shortly 
after being released on bail and threatened to kill him with a handgun. Applicant 
attempted to take the handgun from his acquaintance and the handgun discharged, 
wounding his acquaintance. In November 1995, Applicant was convicted of felony 
unlawful wounding. He was sentenced to prison for three years, with two years and nine 
months suspended, and placed on probation for four years. (Answer at 5-6; GX 3 at 5-6; 
GX 4 at 3; GX 5 at 3; AE A.)  
 
 SOR ¶ 1.l. In August 1996, Applicant was involved with another altercation with 
the acquaintance alleged in SOR ¶¶ 1.m and 1.n, and was charged with assault. He 
claimed that he was acting in self-defense, but he was convicted and sentenced to 30 
days in jail, suspended on condition of good behavior for 12 months.3 (Answer at 6; GX 
4 at 3; GX 5 at 3.)  
 
                                                          
3 The other party in the incidents alleged in SOR ¶¶ 1.l, 1.m, and 1.n was shot and killed in an altercation 
with another person in March 2008. (AX G.) 
 
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 SOR ¶ 1.k. In November 1998, Applicant was kicked out of the house by his 
father, was unemployed, and was angry. He was charged with destruction of property of 
a value less than $1,000, reckless driving, use of profane or threatening language over 
a public airway, and assault and battery. He was convicted of assault and battery. The 
other charges were dismissed. The record does not reflect the details of the incident or 
the sentence that was imposed. (Answer at 5; GX 4 at 4; GX 5 at 3.)  
 
 SOR ¶ 1.j. In March 1999, Applicant was arrested for stalking after he broke up 
with his girlfriend and tried to persuade her to resume their relationship. When his 
girlfriend called the police, Applicant resisted arrest. He was convicted of stalking and 
resisting arrest. The record does not reflect the sentence that was imposed. (Answer at 
5; GX 4 at 4; GX 5 at 3.)  
 
 SOR ¶¶ 1.h and 1.i. In September 1999, Applicant missed an appointment with 
his probation officer and was arrested for violating the probation that was imposed as a 
result of the conviction of unlawful wounding (alleged in SOR ¶ 1.n). In his answer to the 
SOR, he stated that he notified the probation officer that he would be unable to make 
the appointment because of a conflicting job requirement. His probation was revoked, 
and he served two years and nine months in jail. (Answer at 4; GX 4 at 4; GX 5 at 3.) In 
his answer to the SOR and at the hearing, Applicant presented evidence that his 
probation officer was convicted in 2006 of corruption and selling drugs. There is no 
evidence that the probation officer’s drug-dealing and corruption affected the decision to 
revoke Applicant’s probation, but the evidence reflects widespread corruption in the law 
enforcement community at the time of Applicant’s offenses. (AX H through N.) The 
record does not reflect whether the judge considered the charges and convictions 
alleged in SOR ¶¶ 1.j, 1.k, and 1.l before revoking Applicant’s probation.  
 
 SOR ¶ 1.g. In May 2005, Applicant was arrested for assault and battery on a 
family member after his intoxicated father attacked him and Applicant defended himself. 
The charges were dismissed. (Answer at 3-4; GX 4 at 4.) 
 
 SOR ¶ 1.f. In January 2006, Applicant was arrested for stalking. A woman ahead 
of him in grocery store checkout line left a bag in the store, and he pursued her in an 
attempt to give it to her. She drove away before he could catch up to her, and he 
followed her in his car and attempted to get her attention by honking his horn. He 
followed her into her driveway at her home. She was frightened, and she called the 
police and accused Applicant of stalking her. Applicant was arrested for stalking and 
spent two months in jail because he could not afford bail. (GX 3 at 8.) He was convicted 
and sentenced to 12 months in jail, suspended. (GX 4 at 5; GX 5 at 2.)  
 
 SOR ¶¶ 1.c and 1.d. The SOR alleges that Applicant was arrested in January 
2006 and again in February 2006 for contempt of court. In his answer to the SOR, he 
stated that there was only one contempt charge, and it occurred because he missed a 
court date due to lack of transportation. (Answer at 2-3; AE D.) Court records reflect that 
he was convicted of contempt of court in February 2006 and sentenced to 45 days in 
jail, and convicted again of contempt of court in June 2006 and sentenced to six months 
 
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in jail. (GX 4 at 5.) I conclude that SOR ¶¶ 1.c and 1.d allege the same offense, and that 
a second contempt charge in June 2006 resulted in a conviction but was not alleged in 
the SOR. 
 
 SOR ¶ 1.b. In May 2007, Applicant was charged with public intoxication and 
disorderly conduct. In his answer to the SOR, he stated that this incident was the result 
of another confrontation with the same person involved in SOR ¶¶ 1.m and 1.n, and that 
the confrontation violated a court order prohibiting both Applicant and the previous 
assailant from being within 100 feet of each other. (Answer at 2.) Applicant was fined 
$250 for disorderly conduct and $25 for public intoxication. (AE C.) 
 
 SOR ¶ 1.a. In May 2008, Applicant was charged with driving while intoxicated 
(DWI). In June 2008, he was convicted, fined $350, and sentenced to confinement for 
30 days (suspended). His driver’s license was suspended for 12 months, and he was 
required to complete an alcohol education program. (GX 4 at 5; GX 5 at 4.) When 
Applicant was hired by a defense contractor in January 2009 for service in Iraq, the 
“good behavior” requirement on which suspension of confinement was based was lifted 
for as long as he was employed by the defense contractor for service outside the United 
States. (AE B and F.) Applicant has not consumed alcohol since his arrest for DWI. (GX 
3 at 6; Tr. 33.) 
 
When Applicant submitted an application for a trustworthiness determination in 
October 2010, his application asked, “In the last 7 years, have you been arrested for, 
charged with, or convicted of any offense(s)?” He answered “Yes” and disclosed the 
arrest for DWI alleged in SOR ¶ 1.a. (GX 6 at 22.) He did not disclose the arrests and 
convictions alleged in SOR ¶¶ 1.b-1.d, 1.f, and 1.g. His application was initially denied. 
He believed that the denial was based on his felony conviction in 1995 and other 
criminal conduct. (GX 3 at 9.) In March 2011, he appealed the denial, citing the quality 
of his service in Afghanistan and supporting his appeal with letters of recommendation. 
(AX B.) His appeal was granted, and he was allowed to deploy again to Afghanistan in 
May 2011. (AX C at 4.) 
 
 At the hearing, Applicant admitted that he listed only his “last situation” on his 
October 2010 application. He testified, “I might have did lie (sic) to the Government 
here.  And I maybe didn't want to disqualify myself from the job at that time, but I did fill 
that form out.” (Tr. 81.) 
 
 When Applicant submitted his SCA in June 2012, the part of Section 22 
captioned “Police Record” asked him:  
 
Have any of the following happened? (If “Yes” you will be asked to provide 
details for each offense that pertains to the actions that are identified 
below.) 
 
 In the past seven (7) years, have you been issued a summons, 
citation, or ticket to appear in court in a criminal proceeding against 
 
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you? (Do not check if all the citations involved traffic infractions 
where the fine was less than $300 and did not include alcohol or 
drugs.)  
 
 In the past seven (7) years have you been arrested by any police 
officer, sheriff, marshal or any other type of law enforcement 
official? 
 
 In the past seven (7) years have you been charged, convicted or 
sentenced of a crime in any court? (Include all qualifying charges, 
convictions or sentences in any Federal, state, local, military, or 
non-U.S. court, even if previously listed on this form.) 
 
 In the past seven (7) years have you been or are you currently on 
probation or parole? 
 
 Are you currently on trial or awaiting a trial on criminal charges? 
 
He answered “No” and did not disclose the arrests, charges, and convictions alleged in 
SOR ¶¶ 1.a-1.d and 1.f. (GX 1 at 32.) 
 
In the part of Section 22 captioned “Police Record (EVER),” Applicant was 
asked:  
 
Other than those offenses already listed, have you EVER had the 
following happen to you? 
 
 Have you EVER been convicted in any court of the United States of 
a crime, sentenced to imprisonment for a term exceeding 1 year for 
that crime, and incarcerated as a result of that sentence for not less 
than 1 year? (Include all qualifying convictions in Federal, state, 
local, or military court, even if previously listed on this form.) 
 
 Have you EVER been charged with any felony offense? (Include 
those under the Uniform Code of Military Justice and non-
military/civilian felony offenses.) 
 
 Have you EVER been convicted of an offense involving domestic 
violence or a crime of violence (such as battery or assault) against 
your child, dependent, cohabitant, spouse, former spouse, or 
someone with whom you share a child in common? 
 
 Have you EVER been charged with an offense involving firearms or 
explosives? 
 
 
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 Have you EVER been charged with an offense involving alcohol or 
drugs? 
 
Applicant answered “Yes” to these questions and disclosed his 1995 felony conviction 
of unlawful wounding alleged in SOR ¶ 1.n, but he did not disclose the charges and 
convictions alleged in SOR ¶¶ 1.a and 1.b.4 (GX 1 at 33-34.) He testified that he did not 
know why he did not disclose the May 2008 DWI conviction alleged in SOR ¶ 1.a. (Tr. 
95.) 
 
 In the part of Section 22 captioned “Police Record (EVER)-Summary,” he was 
asked the same questions as the preceding part captioned “Police Record (EVER). He 
answered “No” and did not disclose the convictions alleged in SOR ¶¶ 1.a and 1.b. (GX 
1 at 34-35.) 
 
 During a personal subject interview in August 2012, he admitted that he 
intentionally omitted his DWI conviction from his June 2012 SCA because he was afraid 
that disclosing all of his criminal record would hurt his chance of obtaining a security 
clearance. He told the investigator that he did not think that his May 2008 DWI would be 
reflected anywhere, because Army personnel had told him that his record was “wiped 
clean” when his application for a position of public trust was granted. (GX 3 at 6-7.) 
 
 In his June 2013 response to DOHA interrogatories, Applicant stated that he was 
told by an Army representative that the lesser offenses and any other charges after his 
felony conviction had been removed from his record. He stated that, based on the 
information from the Army representative, he believed “that the charges no longer 
existed on [his] record [and he] did not need to disclose them.” He denied intending to 
mislead or to conceal or withhold information. He stated that he volunteered the 
information during his PSI “in order to be completely honest and forthcoming, and with a 
large degree of trust and belief that the interviewer would do his best to understand 
[him] and record this information in an adequate and fair manner.” (GX 2 at 4.) 
 
 At the hearing, Department Counsel asked Applicant, “[Y]ou are saying that you 
didn't list them because someone in the Army told you that you didn't have to?” 
Applicant responded, “He didn't tell me that I didn't have to, but he told me my 
background was cleared up enough to receive this overturned decision with my 
[trustworthiness determination].” Department Counsel asked, “But you understand that 
this process is completely different than that, right? Applicant responded, “Yes, sir.  And 
I lied on -- I mean, I see what you are saying.” (Tr. 90-91.) 
 
 In Applicant’s answer to the SOR, he stated that his omission of his criminal 
record was “caused significantly by improper or inadequate advice of authorized 
personnel.” However, at the hearing, he reviewed the investigator’s summary of the PSI 
reflecting that he admitted falsifying his SCA, and he acknowledged that the 
                                                          
4 Applicant did not disclose his arrest for domestic violence alleged in SOR ¶ 1.g. However, the question 
regarding domestic violence did not encompass an assault on a parent. 
 
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investigator’s summary, including his admission of intentional falsification, was accurate. 
(Tr. 103-05.) He also admitted that he did not disclose the omitted offenses until the 
investigator asked him about them. (Tr. 102-03.) 
 
 Section 19 of Applicant’s June 2012 SCA, captioned “Foreign Contacts,” asked 
him, 
 
A foreign national is defined as any person who is not a citizen or national 
of the U.S. Do you have, or have you had, close and/or continuing contact 
with a foreign national within the last seven (7) years with whom you, or 
your spouse, or cohabitant are bound by affection, influence, common 
interests, and/or obligation? Include associates as well as relatives, not 
previously listed in Section 18.  
 
Applicant answered “No,” and he did not disclose a relationship with a citizen of 
Kyrgyzstan in 2011 and 2012 and a relationship with a citizen of the Philippines in 2010 
and 2011. (GX 1 at 27.) 
 
 Applicant admitted the two relationships in his answer to the SOR, but he 
asserted that he thought the question pertained only to foreign nationals who were a 
potential threat. (Answer at 10.) In his August 2012 PSI, he told the investigator that he 
met a woman from Kyrgyzstan on the Facebook website in 2011 and they corresponded 
on Facebook weekly. He visited her in Kyrgyzstan in May 2011, while on R & R leave 
from Afghanistan, and decided to break off the relationship. During the same PSI, he 
told the investigator that he met the woman from the Philippines in 2010 on an internet 
dating site, and they emailed each other two or three times a week. Applicant knew that 
she was a very poor single mother, and he sent her $200 a month from July to 
December 2011. In December 2011, he visited her in the Philippines, decided that she 
was interested only in his money, and broke off the relationship. (GX 3 at 3.) 
 
 In Applicant’s PSI, answer to the SOR, and testimony at the hearing, he 
described in great detail how his employment by a defense contractor revealed to him a 
world that he did not know existed. It allowed him to travel to foreign countries and 
interact with contractor employees from foreign countries. For the first time in his life, he 
worked with military personnel and contractors who were dedicated, highly motivated, 
and concerned about each other. He found himself working in an environment where 
everyone wanted to do “the right thing.” He developed feelings of kinship with the 
combatants he supported, felt responsible for providing them the best possible support, 
worried about them when they were on operational missions, and was taken aback by 
their generous expressions of gratitude for his service and respect for his abilities. Last 
but not least, he was well paid for his services and was able to plan for a better life. (Tr. 
56-70.) 
 
 In early 2014, Applicant petitioned his state governor for restoration of his rights 
to vote, hold public office, serve on a jury, and serve as a notary public. He was notified 
 
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on May 1, 2014 that his application is under review. (AX D.) As of the date of his 
hearing, he had not been notified of the results of that review. (Tr. 60-61.) 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available and reliable information about the 
person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 
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 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline J, Criminal Conduct 
 
 The SOR alleges the multiple arrests, charges and convictions set out above in 
the “Findings of Fact” (SOR ¶¶ 1.a-1.d and 1.f-1.n). The concern raised by criminal 
conduct is set out 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.”  
 
 The evidence shows that the two contempt of court charges alleged in SOR ¶¶ 
1.c and 1.d were the same offense. When the same conduct is alleged twice in the SOR 
under the same guideline, one of the duplicative allegations should be resolved in 
Applicant=s favor. See ISCR Case No. 03-04704 (App. Bd. Sep. 21, 2005) at 3 (same 
debt alleged twice). Thus, I resolve SOR ¶ 1.d in Applicant’s favor.  
 
Similarly, the arrest for a probation violation alleged in SOR ¶ 1.i and the 
revocation of probation alleged in SOR ¶ 1.h are duplicative, because they are 
components of the same event. Thus, I resolve SOR ¶ 1.i in Applicant’s favor. 
 
Applicant’s admissions and the evidence presented at the hearing establish four 
disqualifying conditions under this guideline:  
 
AG ¶ 31(a): a single serious crime or multiple lesser offenses;  
 
AG ¶ 31(c): allegation or admission of criminal conduct, regardless of 
whether the person was formally charged, formally prosecuted, or 
convicted;  
 
AG ¶ 31(e): violation of parole or probation, or failure to complete a court-
mandated rehabilitation program; and 
 
 
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AG ¶ 31(f): conviction in a Federal or State court, include 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.5  
 
The following mitigating conditions under this guideline are potentially applicable: 
 
AG ¶ 32(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;  
 
AG ¶ 32(c): evidence that the person did not commit the offense; and  
 
AG ¶ 32(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 first prong of AG ¶ 32(a) focuses on whether the criminal conduct was 
recent. There are no Abright line@ rules for determining when conduct is Arecent.@ The 
determination must be based on a careful evaluation of the totality of the evidence. See 
ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows Aa 
significant period of time has passed without any evidence of misconduct,@ then an 
administrative judge must determine whether that period of time demonstrates Achanged 
circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.@ Id.  
 
 AG ¶¶ 32(a) and 32(d) are not established. Six years have passed since 
Applicant’s arrest for DWI. He stopped consuming alcohol after his arrest. Nineteen 
years have passed since his first and most serious offense, the wrongful wounding. He 
has served with distinction in a combat zone as a contractor employee. He is remorseful 
for his past criminal behavior and is determined to put his past behind him. His attitude 
and conduct changed drastically after he began working for a defense contractor in 
Afghanistan. He has discovered that there is a better life than what he was living before 
May 2008.  
 
 However, for the reasons set out in greater detail in the discussion of Guideline 
E, I conclude that Applicant’s criminal record is not mitigated by the passage of time, 
because his repeated falsifications preclude a finding that he is rehabilitated. He 
intentionally omitted most of his criminal record, including a felony conviction, from his 
                                                          
5 Even though Applicant was sentenced to incarceration for three years and was incarcerated “for not less 
than one year,” the disqualification from holding a clearance imposed by the Bond Amendment, 50 U.S.C. 
§ 435c, does not apply to this case because Applicant is not seeking eligibility for special access 
programs, restricted data, or any other information commonly referred to as “sensitive compartmented 
information.” 
 
 
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application for a public trust position in October 2010,6 intentionally omitted most of his 
criminal record from his SCA in June 2012, and falsely claimed that his omissions were 
not intentional in his June 2013 responses to DOHA interrogatories.7  
 
 AG ¶ 32(c) is established for the domestic assault alleged in SOR ¶ 1.g. The 
evidence reflects that Applicant’s father was the aggressor, and as a result the charged 
were dismissed. 
 
 AG ¶ 32(c) is not established for the felony use of a firearm in the commission of 
a felony, alleged in SOR ¶ 1.m. Although the charge was dismissed, the record does 
not reflect the extent of Applicant’s participation in the felonious conduct, whether the 
charge was dismissed for lack of evidence, or whether the charge was dismissed in 
return for Applicant’s testimony against his acquaintance. 
 
 AG ¶ 32(c) is not established for the felony unlawful wounding alleged in SOR ¶ 
1.n and the assault and battery alleged in SOR ¶ 1.l. In both instances, Applicant 
claimed that he was the victim of an assault and was acting in self-defense. However, 
the doctrine of collateral estoppel applies in both instances, because he was convicted 
by a court of competent jurisdiction after a full trial on the merits.  
 
 The doctrine of collateral estoppel generally applies in DOHA hearings and 
precludes applicants from contending that they did not engage in criminal acts for which 
they were convicted. ISCR Case No. 95-0817 at 2-3 (App. Bd. Feb. 21, 1997). There 
are exceptions to this general rule, especially with respect to misdemeanor convictions 
based on guilty pleas. Relying on federal case law, the Appeal Board has adopted a 
three-part test to determine the appropriateness of applying collateral estoppel to 
misdemeanor convictions. First, the applicant must have been afforded a full and fair 
opportunity to litigate the issue in the criminal trial. Second, the issues presented for 
collateral estoppel must be the same as those resolved against the applicant in the 
criminal trial. Third, the application of collateral estoppel must not result in “unfairness,” 
such as where the circumstances indicate lack of incentive to litigate the issues in the 
original trial. Federal courts recognize that an individual may not have an incentive to 
fully litigate a misdemeanor offense because there is less at stake or because a plea 
                                                          
6 The SOR does not allege that Applicant falsified his October 2010 application for a public trust position. 
Conduct not alleged in the SOR may be considered to assess an applicant=s credibility; to decide whether 
a particular adjudicative guideline is applicable; to evaluate evidence of extenuation, mitigation, or 
changed circumstances; to consider whether an applicant has demonstrated successful rehabilitation; or 
as part of a whole-person analysis. ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006). I have 
considered Applicant’s omissions from his application for a public trust position for these limited purposes. 
 
7 Applicant’s falsification of his June 2012 SCA was not alleged under Guideline J. It is a felony, 
punishable by a fine or imprisonment for not more than five years, or both, to knowingly and willfully make 
any materially false, fictitious, or fraudulent statement or representation in any matter within the 
jurisdiction of the executive branch of the Government of the United States. 18 U.S.C. § 1001. Security 
clearances are matters within the jurisdiction of the executive branch of the Government of the United 
States. Deliberately false answers on a security clearance application or in response to questions from 
security investigators and adjudicators are serious crimes within the meaning of Guideline J. 
 
13 
 
bargain creates a disincentive to litigate the issues. ISCR Case No. 04-05712, 2006 WL 
354122 (App. Bd. Oct. 31, 2006) (citations omitted). 
 
 AG ¶ 32(c) is not established for the two convictions of stalking alleged in SOR 
¶¶ 1.f and 1.j. Although Applicant claimed that he had innocent motives for his conduct, 
he did not contest the facts. It is not established for the conduct alleged in SOR ¶¶ 1.b-
1.d, 1.h, 1.i, and 1.k, which Applicant admitted. 
 
Guideline E, Personal Conduct 
 
 The SOR cross-alleges the criminal conduct alleged in SOR ¶ 1 under this 
guideline (SOR ¶ 2.a). It also alleges that Applicant falsified his responses to questions 
in his SCA regarding his police record and his foreign contacts (SOR¶¶ 2.b-2.e) and 
that he falsified his responses to DOHA interrogatories by denying that he falsified his 
SCA (SOR ¶ 2.f). 
 The concern under this guideline is set out in AG ¶ 15:  
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.   
 When a falsification allegation is controverted, as in this case, the Government 
has the burden of proving it. An omission, standing alone, does not prove falsification. 
An administrative judge must consider the record evidence as a whole to determine an 
applicant’s state of mind at the time of the omission.  See ISCR Case No. 03-09483 at 4 
(App. Bd. Nov. 17, 2004). An applicant’s level of education and business experience are 
relevant to determining whether a failure to disclose relevant information on a security 
clearance application was deliberate. ISCR Case No. 08-05637 (App. Bd. Sep. 9, 
2010). 
 
 The disqualifying conditions relevant to the falsifications alleged in SOR ¶¶ 2.b-
2.f are: 
 
AG ¶ 16(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; 
and 
 
14 
 
AG ¶ 16(b): deliberately providing false or misleading information 
concerning relevant facts to an employer, investigator, security official, 
competent medical authority, or other official government representative; 
 The disqualifying conditions relevant to the criminal conduct cross-alleged 
under this guideline are: 
AG ¶ 16(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; 
AG ¶ 16(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 . . . 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, such as . . . engaging in activities which, if known, may affect the 
person's personal, professional, or community standing.  
 Applicant admitted during his August 2012 PSI and at the hearing that he 
intentionally omitted most of his criminal record on his June 2012 SCA, because he was 
afraid that he would not receive a security clearance and would lose his job if he fully 
disclosed his previous record. In his response to DOHA interrogatories, he stated that 
he believed that his previous record had been “wiped out” when he received a favorable 
trustworthiness determination, but his PSI reflects that his belief extended only to a 
belief that his previous record would not be discovered during his background 
investigation. He has not plausibly or credibly explained why he disclosed the 1995 
felony conviction in his June 2012 SCA if he believed that his previous criminal record 
had been “wiped out.” I conclude that AG ¶ 16(a) is established. 
 
 In response to the June 2013 DOHA interrogatories, Applicant partially recanted 
the portion of his PSI admitting intentional falsification of his SCA. Instead, he attributed 
his omissions to inaccurate advice from Army officials, and he asserted that he did not 
intentionally omit relevant information from his SCA. At the hearing, he reverted to his 
version of the facts summarized in the PSI, and he admitted that he intentionally omitted 
 
15 
 
information from his SCA. Based on his testimony at the hearing, his admissions during 
the PSI, and the implausibility of his explanation for the omissions from his June 2012 
SCA, I conclude that he falsified his response to the DOHA interrogatories. Thus, I 
conclude that AG ¶ 16(b) is established. 
 
 Applicant fully disclosed his criminal record during his PSI, but only after he was 
confronted with the evidence by the investigator. He did not disclose his past until the 
investigator told him that his integrity was more important that any issues about his past. 
(GX 3 at 9.) 
 
 On the other hand, Applicant’s explanation for not disclosing his contacts with 
natives of Kyrgyzstan and the Philippines was credible and plausible. He had contacts 
with contractor employees from other countries and did not believe that he was required 
to report casual friendships with foreigners on his SCA. His contacts with the two 
women alleged in the SOR consisted of email correspondence and one visit to each, 
and the two relationships never progressed beyond long-distance email and one 
meeting in person. The monthly $200 sent to the woman in the Philippines was 
prompted by Applicant’s compassion for a needy person rather than a sense of affection 
or obligation. I conclude that his failure to disclose these two relationships was not an 
intentional omission within the meaning of Guideline E. 
 
 The following mitigating conditions are potentially relevant: 
 
AG ¶ 17(a): the individual made prompt, good-faith efforts to correct the 
omission, concealment, or falsification before being confronted with the 
facts; 
 
AG ¶ 17(b): the refusal or failure to cooperate, omission, or concealment 
was caused or significantly contributed to by improper or inadequate 
advice of authorized personnel or legal counsel advising or instructing the 
individual specifically concerning the security clearance process. Upon 
being made aware of the requirement to cooperate or provide the 
information, the individual cooperated fully and truthfully; 
 
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; 
 
AG ¶ 17(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; and 
 
 
16 
 
AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress. 
 
 AG ¶ 17(a) is not established. Applicant made full disclosure of his criminal 
record in August 2012, two months after he submitted his SCA, but only after being 
confronted with the evidence by a security investigator.  
 
 AG ¶ 17(b) is not established. Although Applicant asserted in his responses to 
DOHA interrogatories and his answer to the SOR that his omissions were due to 
incorrect advice from Army authorities that his criminal record was “wiped out,” he 
admitted to a security investigator during his August 2012 PSI that he intentionally 
omitted most of his criminal record because he was afraid that full disclosure would hurt 
his chance of obtaining a security clearance and keeping his overseas job. 
Notwithstanding his claim that he thought his criminal record was “wiped out,” he 
disclosed his 1995 felony conviction, thereby undercutting his assertion that he believed 
his previous convictions no longer existed and were not encompassed by the questions 
on the SCA. 
 
 AG ¶ 17(c) is not established. Applicant’s falsifications were not minor because 
they were intended to undermine the integrity of the security clearance process. His 
falsifications were repeated and did not occur under unique circumstances making them 
unlikely to recur. 
 
 AG ¶ 17(d) is partially established, because Applicant acknowledged his 
falsifications at the hearing. AG ¶ 17(e) is established, because Applicant’s full 
disclosure of his criminal record during his PSI and at the hearing reduced his 
vulnerability to exploitation, manipulation, or duress. 
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an 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. An 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 
 
17 
 
for the conduct; (8) the potential for pressure, coercion, exploitation, or 
duress; and (9) the likelihood of continuation or recurrence.  
 
 I have incorporated my comments under Guidelines J and E in my whole-person 
analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but 
some warrant additional comment. 
 
 Applicant has matured since he dropped out of high school and began 
associating with crime-oriented companions. When he was hired by a defense 
contractor in 2009, he discovered a new world that he did not know existed. He found a 
sense of purpose and responsibility, and discovered that good work is appreciated. He 
found his work as a contractor employee extremely rewarding. His desire to continue his 
new lifestyle was strong, but his lack of judgment caused him to resort to deception in 
an effort to maintain it. He has acquired skills and experience that he would not have 
but for his service in Afghanistan. It is possible that his experience with the security 
clearance process will cause him to learn the importance of integrity and candor, but 
insufficient time has passed to determine if he has learned that lesson. This is a sad 
case, because Applicant has made great progress in turning his life around, and he has 
provided valuable service under combat conditions. However, my obligation is to 
resolve close cases in favor of national security.  
 
 After weighing the disqualifying and mitigating conditions under Guidelines J and 
E, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has not mitigated the security concerns based on criminal conduct and 
personal conduct. Accordingly, I conclude he has not carried his burden of showing that 
it is clearly consistent with the national interest to grant him eligibility for access to 
classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline J (Criminal Conduct):  AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.c:    Against Applicant 
  Subparagraph 1.d:     For Applicant 
  Subparagraph 1.f:     Against Applicant 
  Subparagraph 1.g:     For Applicant 
  Subparagraph 1.h:     Against Applicant 
  Subparagraph 1.i:     For Applicant 
  Subparagraph 1.j-1.n:    Against Applicant 
 
 
18 
 
 Paragraph 2, Guideline E (Personal Conduct):  AGAINST APPLICANT 
 
  Subparagraphs 2.a-2.d:    Against Applicant 
  Subparagraph 2.e:     For Applicant 
  Subparagraph 2.f:     Against Applicant 
 
Conclusion 
 
 I conclude that 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. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge