KEYWORD: Guideline J;Guideline G; Guideline E; Guideline F
DIGEST: The Judge’s decision failed to consider important aspects of the case and ran contrary
to the weight of the record evidence.  Favorable decision reversed.
CASENO: 10-09035.a1
DATE: 06/10/2014
DATE: June 10, 2014 
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-09035
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Braden M. Murphy, Esq., Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
March 7, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision–security concerns raised under Guideline J (Criminal Conduct), Guideline G (Alcohol
Consumption), Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On January 31, 2014, after the hearing, Defense Office of Hearings and
1Applicant testified that he had a backpack with a loaded 44 magnum handgun inside.  He placed this backpack
in a closet containing a gas heater and went to sleep on his girlfriend’s patio.  Tr. at 49-50.  His girlfriend evidently called
the police, who “put my hand up really high behind my head and was torquing it to the point of pain . . . I just spun
around to get out of the pain . . . the whole thing at that point just escalated.”  Tr. at 52.  Applicant stated that he was
charged with felony offenses, although he pled no contest to misdemeanor battery on a policeman.  Tr. at 54-55, 57.  
Appeals (DOHA) Administrative Judge Mary E. Henry granted Applicant’s request for a security
clearance.  Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: whether the Judge erred in her
application of the disqualifying and mitigating conditions; whether the Judge’s findings of fact
contained errors; and whether the Judge’s favorable decision was arbitrary, capricious, or contrary
to law.  The Judge’s favorable findings under Guideline F are not at issue in this appeal.  Consistent
with the following, we reverse the decision. 
The Judge’s Findings of Fact
 The Judge made the following findings pertinent to the issues raised on appeal:  Applicant
began working for his current employer, a Defense contractor, in 2010.  He enjoys an excellent
reputation for integrity, dependability, and honesty.  Applicant’s character references all recommend
him for a clearance.  He served in the U.S. military for three years.  He has full custody of a nine-
year-old daughter.
Applicant began consuming alcohol when he was in the military.  He did so usually at
parties.  His level of consumption increased after he left active duty, and by his early thirties he met
with friends, consuming alcohol four to five nights a week.  He last consumed alcohol in May 2010.
In 1993 Applicant was arrested and charged with felony possession of illegal drugs;
committing an offense with a firearm, another felony; and willful and unlawful use of force against
a police officer engaged in the performance of his duties, a misdemeanor.  Applicant had attempted
to sleep on the balcony of his girlfriend’s apartment and placed his gun on a storage unit on the
balcony.  Applicant was subsequently arrested and, after an officer pulled Applicant’s arm over his
head, he hit the officer and “things escalated out of control.”  Decision at 4.  The drug charge was
dropped, and the firearms charged reduced to a misdemeanor.  He pled “no contest” to possession
of a concealed weapon and to battery.1
Applicant’s SOR alleged an arrest in 1994, although Applicant has little memory of the
incident.  In a footnote, the Judge found that the source of this allegation is unknown, insofar as
there is no evidence in the record of it.  
In 1996, Applicant was arrested for DUI.  He had been operating a motorcycle with a blood
alcohol level of .08 or higher.  He pled no contest, and the court sentenced him to two days in jail,
three years probation, a fine, suspension of driving privileges, and attendance at a first offender’s
program.  Applicant completed all aspects of this sentence.
In 2000, Applicant consumed several beers at dinner and two more at a concert.  He crashed
his motorcycle, as a consequence of which he was charged with another DUI.  The court sentenced
him to a suspended term of confinement, five years probation, suspension of his drivers license,
community service, a fine, and a DUI second offender’s program.  He completed all of these
requirements.
In 2009, Applicant was awarded full custody of his daughter.  After a year of unemployment,
Applicant was offered a job.  In May 2010, he celebrated his new job and was again arrested for
DUI.  He pled no contest.  He was sentenced to 147 days of confinement, five years informal
probation, suspension of his drivers license, a fine, attendance at an 18-month alcohol program, and
attendance at a Mothers Against Drunk Driving impact panel.  Applicant participated in a home
detention program, which entailed random drug and alcohol tests.  On one occasion he tested
positive for opiates, which he attributed to his having consumed a bagel with poppyseeds.  He has
complied with all terms of his sentence except that he remains on probation.
Applicant views his last arrest as a turning point.  He realized that his drinking could
interfere with his job and could have a negative impact on his daughter.  He has not consumed
alcohol since May 2010.  His character references state that he is always sober at work and does not
show signs of alcohol consumption.  His does not attend alcoholics anonymous or associate with
drinking friends.
Applicant’s 2010 security clearance application (SCA) asked if he had “EVER been charged
with any offense related to alcohol or drugs.”  Id. at 6.  Applicant listed his 2004 and 2010 DUI
arrests, but he did not list his 1993, 1996, and 2000 arrests.  He also did not admit that he had been
charged with a felony–the firearms and drug offenses in 1993.  
Applicant denies that he intended to falsify his SCA.  He stated that his security officer told
him that he only needed to report his criminal arrests for the prior seven years.  He asked the security
officer if he should go back further when he saw the word “ever” and was again told seven years.
He disagreed with the interviewer’s summary of his clearance interview, stating that it did not
include his questions about whether he needed to disclose criminal acts over his lifetime.  He stated
that the interviewer did not answer these questions, which he interpreted to mean that he should only
go back seven years.  He stated at the hearing that he believed that he only needed to go back seven
years, though with the advantage of hindsight that belief does not make sense.
The Judge’s Analysis
Under Guideline J, the Judge found that Applicant’s four DUI arrests and the 1993 felony
arrest raised security concerns, noting, among other things, that he remained on probation at the
close of the record.  However, she found that the allegation pertaining to a 1994 arrest did not raise
concerns, due to a lack of evidence.  She found that the four DUI offense raised concerns under
Guideline G.  Regarding Guideline E, the Judge found that Applicant’s SCA omissions were not
deliberate.  She cited to his evidence that his security officer had told him only to go back seven
years for any of the questions at issue, a position that he has consistently held.  She did find that two
other omissions were deliberate.  These omissions pertained to statements that Applicant provided
2The SOR alleged that Applicant deliberately falsified material facts in a statement submitted to his interviewer
that he had not been charged with any other alcohol-related incidents, failing to disclose his 1996 DUI.  Another
allegation stated that Applicant had falsified material facts in a statement he submitted to the interviewer to the effect
that he had not been charged with any offenses other than the last three DUIs.  The Judge found that Applicant’s failure
to disclose his earlier criminal incidents to his interviewer was intentional, insofar as he “knew he had more information
to provide.”  Decision at 12.  The statements in question were made during Applicant’s clearance interview.  Clearance
Interview Summary, dated June 29, 2010, included in Government Exhibit 2, Answers to Interrogatories.
3We treat a finding as such regardless of where it appears in a Decision.  See, e.g., ISCR Case No. 10-07393
at 3, n. 4 (App. Bd. Jun. 12, 2012).  
to the OPM investigator.2  The Judge’s findings about these last two omissions are contained in her
Analysis.3  
In finding that Applicant had mitigated the concerns described above, the Judge cited to
evidence that Applicant had been sober since 2010, that he has been steadily employed, and that he
has complied with “court requirements,” although he remains on probation.  Under Guideline G, she
stated that Applicant had not been diagnosed as alcohol dependent, that he has been abstinent since
2010, and that he no longer associates with his former drinking companions.  She noted the opinions
of his character references about his dependability and sobriety.  Regarding the two falsifications
during the clearance interview, the Judge cited to evidence that the only way the Government knew
of his earlier offenses was due to his own admissions, that the investigator had failed to give
Applicant accurate guidance as to how far back he should go in disclosing his misconduct, and that
his arrests are well known and, therefore, cannot be a source of coercion.
In the whole-person analysis, the Judge stated that Applicant had accepted responsibility for
his misconduct, has exhibited behavioral changes regarding alcohol, and is a valued employee.  She
noted that he has complied with all court requirements except probation and that he successfully
completed probation following his previous DUI convictions.  She stated that he realizes the harm
that drinking can regarding his custody of his daughter.  
Discussion
The standard applicable in security clearance decisions “is that a clearance may be granted
only when ‘clearly consistent with the interests of the national security.’” Department of the Navy
v. Egan, 484 U.S. 518, 528 (1988).  “Any doubt concerning personnel being considered for access
to classified information will be resolved in favor of the national security.”  Directive, Enclosure 2
¶ 2(b).  In deciding whether the Judge's rulings or conclusions are erroneous, the Board will review
the Judge's decision to determine whether:  it does not examine relevant evidence; it fails to
articulate a satisfactory explanation for its conclusions, including a rational connection between the
facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).  
Department Counsel argues that the Judge erred in concluding that Applicant’s conduct in
1994 did not raise a security concern insofar as there was no record evidence in support of the
allegation.  This argument is persuasive. 
When an applicant controverts an allegation in the SOR, the Government bears the burden
of producing substantial evidence of the facts supporting the allegation.  Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in
light of all the contrary evidence in the same record.”  Directive ¶¶ E3.1.14; E3.1.32.1.  The
Directive presumes a nexus between proven conduct under any of the Guidelines and an applicant’s
security-worthiness.  See, e.g., ISCR Case No. 11-06925 at 4 (App. Bd. Dec. 13, 2013).  
The SOR alleged at ¶ 1.e the following: “You were arrested in March 1994 in [County,
State], and charged with disorderly conduct and public intoxication.”  In his Response to the SOR,
Applicant stated the following in regard to this allegation: “I admit, however, I was unaware of
having been charged.”  The Judge treated this as a denial, insofar as he stated “that he was unaware
of this charge.”  Decision at 2, n. 1.  However, Applicant’s response most reasonably means that he
admitted the behavior for which he was arrested but was not aware that he had been charged.  An
applicant’s admission to an SOR allegation does not necessarily certify that he has a present memory
of the conduct at issue, and it is possible for an applicant to admit conduct even if he claims no
memory of all or part of the act or that he was unaware of the legal consequences resulting
therefrom.  Applicant testified to that effect at the hearing.  “Q: . . . I think in your Answer you admit
the conduct but say that you were not aware of the charges itself; is that correct? A; That’s true.”
Tr. at 75.  Accordingly, the most reasonable interpretation of Applicant’s SOR response, one which
he himself endorsed at the hearing, was that he admitted the conduct underlying the charges, though
he was not aware that he had been charged as a formal matter.  The Judge erred in treating this as
a denial of the conduct itself.  Moreover, Applicant testified about this incident in some detail:
Q: . . . [I]n 1994 you got arrested for public intoxication and disorderly conduct?  
A: Yes . . . That would have been in [City, State] I think getting in a fight . . . outside
of a bar and getting arrested.  
Q: And how old were you then?  
A: I would have been 23.  
Q: Okay. And what happened to that arrest, do you know?  
A: I don’t think anything.  Tr. at 28.  
Therefore, even without Applicant’s SOR admission, the record contains substantial evidence of the
event described in the allegation–public intoxication and disorderly conduct–despite a lack of
evidence as to any resulting legal action.  Given the record as a whole, particularly its litany of
alcohol-related offenses, the Judge erred in concluding that Applicant’s public intoxication did not
raise security concerns.
Department Counsel argues that the Judge erred in finding that Applicant’s omissions to the
SCA were not deliberate.  In analyzing an applicant’s mens rea, a Judge must consider the
applicant’s answers in light of the entire record.  See, e.g., ISCR Case No. 11-04879 at 3 (App. Bd.
Aug. 6, 2013).  Department Counsel argues that the Judge failed to address significant contrary
record evidence, an argument that we find persuasive.  
Department Counsel cites to the clarity of the questions at issue, in that they are emphatically
not time-limited regarding alcohol and drug offenses and felonies, as the Judge herself found, the
word EVER being capitalized.  He argues that this clarity is in itself a reason to believe that
Applicant was on notice that he should divulge all of his misconduct and that his failure to do so was
knowing and deliberate.  That Applicant’s presentation at the hearing evidenced a sufficient fluency
in the English language to have enabled him to understand the questions reinforces this conclusion.
Department Counsel argues that the Judge’s analysis failed to address her own findings that
Applicant deliberately omitted material information in statements to the interviewer.  He makes a
reasonable argument that, in evaluating Applicant’s intent in his answers to the SCA, the Judge
should have considered her findings (and the underlying evidence) that he elsewhere made
deliberately false statements regarding the same subject matter.  It is a commonplace that evidence
of other wrongs may be relevant on the question of intent, knowledge, etc.  See Federal Rule of
Evidence 404(b).  See also ISCR Case No. 10-03732 at 6, n. 4 (App. Bd. Jun. 14, 2013).  The
Judge’s failure to discuss these other deliberate omissions impairs her favorable analysis of the
omissions contained in the SCA.  
Department Counsel argues that the Judge’s favorable  credibility determination regarding
Applicant’s claims about his SCA omissions is contradicted by other record evidence.  As he
contends, the deference we give a Judge’s credibility determination is not without limits.  When a
record contains a basis to question an applicant’s credibility, the Judge should address contrary
evidence explicitly, explaining why he or she finds the applicant’s version of events to be worthy
of belief.  See, e.g., ISCR Case No. 07-10158 at 5 (App. Bd. Aug. 28, 2008).   The record contains
evidence of inconsistent statements by Applicant that undermine his credibility.  For example, at one
point in the hearing he testified that the instructions regarding the time frame of the questions at
issue were in “fine print that–I don’t even think that my eyes saw it the first time around.”  Tr. at 60.
He testified that he was absolutely certain that he needed to go back only seven years for any of the
questions regarding his criminal conduct.  “I still firmly believed that I was only supposed to
disclose seven years of criminal history.”  Tr. at 43.  “. . . I was reading the [SCA] . . . truly believing
that I was only supposed to go back seven years . . .”  Tr. at 60.  “I understand the question today
as I read it, but at the time . . . it had about as much effect on me as fine print on the back of a . . .
credit card.”  Tr. at 90.   
Nevertheless, he also testified that, in fact, he was not certain about the time period, that the
questions at issue here apparently “really tripped me up . . .”  Tr. at 88.  He testified that he sought
advice from his security officer, who told him only to report offenses in the previous seven years.
Despite this purported advice, he testified that he was still not certain and inquired of the interviewer
whether he should divulge crimes involving alcohol or drugs that occurred at any time in his life,
to which he received no reply.  “I asked her, because I was still unclear . . . am I required to discuss
my entire history . . . And she sort of gave me a puzzled look and said: I don’t know.”  Tr. at 61-62.
4In addition, a reasonable person could believe and consider that Applicant had a motive to have omitted some
of his misconduct: concern over losing his job.  He testified that he was worried about the effect his last DUI might have
on his continued employment, and it is not fanciful to suppose that this concern provided him with a strong reason to
minimize the totality of his misconduct, especially his early felony arrest.  The Judge did not address this, which, under
the facts of this case, impairs her analysis.
Applicant testified that he was so uncertain about the time frame of the questions that he considered
submitting a second SCA, “thinking that it would be so much smoother because then I would know
how to do it correctly.”  Tr. at 105.  He said that his uncertainty was not finally dispelled until he
received the SOR, with its allegations of false statements.  “You know, it wasn’t until I got my
Statement of Reasons when it became crystal clear.  I thought . . . well, now it’s crystal clear . . .”
Tr. at 105-106.  
The Judge did not address the apparent inconsistency between Applicant’s claims (1) not to
have been aware of the time frame required of the questions at issue, due to the fine print in the SCA
and yet (2) to have been tripped up by the language regarding time limitations to the extent that he
repeatedly sought guidance on the matter.  Neither did the Judge address the inherent credibility of
Applicant’s claims that neither official whom he queried was able to give him a straight answer
about the obvious meaning of the language at issue here.  All in all, the Judge’s findings that
Applicant did not deliberately falsify his SCA were not founded upon consideration of significant
contrary record evidence.4  These findings are not supportable.  
Department Counsel argues that the Judge erred in her mitigation analysis, which we find
persuasive.  In the first place, her analysis did not include Applicant’s omissions to the SCA, in view
of her erroneous finding that the omissions were not deliberate.  Moreover, her mitigation analysis
of those false statements that she did find to have been deliberate is defective in significant ways.
She stated that the interviewer failed to provide Applicant with accurate guidance of the length of
time he needed to cover, which is irrelevant in light of her finding that Applicant was, in fact, aware
of his obligation to be forthcoming during his interview.  See note 1, supra.  She also stated that
Applicant’s DUI arrests cannot be a source of manipulation or duress, insofar as his employer and
friends are aware of them.  However, this does not on its face mitigate concerns about Applicant’s
deliberate falsifications during his clearance interview, including his failure to disclose a felony
arrest.  The Judge’s Guideline E mitigation analysis addresses little that is genuinely relevant to her
findings of deliberate omissions and is not sustainable.  
Under Guideline J, her analysis does not address all of Applicant’s misconduct–the 1994
arrest for public drunkenness or his recent falsifications, which were cross-alleged as criminal
allegations.  Because of this, and in view of evidence that Applicant remained on probation as of the
close of the record and that he had violated the terms of his home detention by means of a positive
urinalysis, the Judge’s favorable conclusions under Guideline J are not sustainable.  In light of the
foregoing, we do not need to address the sufficiency of the Judge’s favorable conclusions under
Guideline G or the sufficiency of her favorable conclusions under a Guideline E allegation that
incorporated Applicant’s alcohol-related criminal offenses, except to note that the same conduct can
be alleged under different Guidelines and given independent weight.  See, e.g., ISCR Case No. 03-
08257 at 3 (App. Bd. May 16, 2008).  The Judge’s Decision failed to consider important aspects of
the case and ran contrary to the weight of the record evidence.  The favorable findings under
Guidelines J and E are not sustainable in view of the Egan standard.
Order
The Decision is REVERSED.     
Signed: Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett               
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody               
James E. Moody
Administrative Judge
Member, Appeal Board