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    DEPARTMENT OF DEFENSE 
            DEFENSE OFFICE OF HEARINGS AND APPEALS 
          
             
 
 
 
In the matter of: ) 
) 
----------------------------- )       ISCR Case No. 12-00740 
 ) 
) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Braden C. Murphy, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
       ______________ 
 
Decision 
______________ 
 
 
HOWE, Philip S., Administrative Judge: 
 
On May 8, 2011, Applicant submitted his electronic version of the Security 
Clearance Application (e-QIP). On August 26, 2013, the Department of Defense issued 
to Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline 
E. The action was taken under Executive Order 10865, Safeguarding Classified 
Information within Industry (February 20, 1960), as amended; Department of Defense 
Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program 
(January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) 
effective within the Department of Defense on September 1, 2006.  
 
Applicant answered the SOR in writing on September 30, 2013. Applicant 
requested his case be decided on the written record in lieu of a hearing.  
 
 
 
 
 
 
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On December 18, 2013, Department Counsel submitted the Department=s written 
case. A complete copy of the file of relevant material (FORM) was provided to the 
Applicant on December 30, 2013. He was given the opportunity to file objections and 
submit material in refutation, extenuation, or mitigation. Applicant received the file on 
January 8, 2014. Applicant filed a Response to the FORM within the 30-day time 
allowed that would have expired on February 7, 2014. I received the case assignment 
on May 12, 2014. Based upon a review of the complete case file, pleadings, and 
exhibits, eligibility for access to classified information is denied. 
 
Findings of Fact 
 
Applicant denied the allegations in Subparagraphs 1.b, 1.g, 1.h., 1.i, and 1.j. He 
admitted the allegations in Subparagraphs 1.a, 1.c to 1.f, and 1.k. (Items 1-3)  
 
 Applicant tested positive on a urinalysis test before his entry into the U.S. Army in 
September, 2005. He claims the Army discounted the test results because other new 
recruits also tested positive, including some of the recruiters. Applicant admitted this 
allegation in Subparagraph 1.a. of the SOR. Applicant enlisted in 2006 in the Army and 
served in the Reserves up to and including the present time. His command approved an 
exception as noted in his records. Applicant denied on his enlistment papers any prior 
use of a controlled substance. He currently serves as a military policeman. (Items 4-7) 
 
 Applicant denied the allegation in Subparagraph 1.b. that he received non-judicial 
punishment for a violation of Article 134 of the UCMJ by communicating a threat on July 
6, 2006 when he stated, “If I could bring a round back from the range, I would kill Drill 
Sergeant ----” The punishment imposed by his commander was 45 days extra duty, a 
reduction in rank to E-2 from E-3, and 45 days restriction. Applicant contends he made 
a silly remark at the range one day to other trainees and a few days after that comment 
a live round was found in the company area while he was away. He asserts the round 
was not his and he had nothing to do with it. In the personal subject interview in 
September 2011 for his security clearance Applicant was vague about the details of the 
incident and attributed his comment to his sarcastic nature. The evidence in the file 
shows the allegation to be true. (Items 3-7) 
 
 Applicant admits he was terminated from employment in May 2007 from one 
department store (Subparagraph 1.c), and in June 2008 and February 2009 from 
another store (Subparagraph 1.d), for disciplinary reasons. Applicant worked as a 
security investigator against store theft for both businesses. The first termination 
occurred allegedly because Applicant was not the type of person the company wanted 
in that position at the age of 19. The second and third terminations happened after 
 
 
 
 
 
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Applicant followed a shoplifter into the parking lot without calling for support, contrary to 
company policy. (Items 3-9, Answer) 
 
 Applicant had several disciplinary issues while working for another employer from 
November 2009 to June 2011. Those problems included verbal and written warnings for 
speed alerts, attendance issues, displaying an attitude, not following instructions, and 
not clocking out on time (Subparagraph 1.e). He admitted this allegation as it pertains to 
attendance and failure to follow instructions. When interviewed on October 20, 2011, 
Applicant initially denied having employment issues with this employer. The government 
investigator then confronted Applicant with the information from the company about his 
employment. Applicant told the investigator that someone at that employer told him 
nothing would be in his employment file (Subparagraph 1.g). Applicant denied this 
allegation as it pertains to receiving a written warning for failure to clock out of work 
properly. The evidence in the file shows this allegation to be true. (Items 3-9) 
 
 Applicant had several disciplinary issues at a company that provided security 
services to businesses. Applicant walked past one store and saw people in it on April 
19, 2011, at about 1:30 in the morning. He continued on his rounds and did not report 
their presence because he thought they worked there and were rearranging the 
inventory. Later it was discovered by the owner that those persons were burglarizing the 
store. Applicant also provided unacceptable services to a client. He was also counseled 
for attendance and tardiness (Subparagraph 1.f). Applicant admitted this allegation. 
(Items 3-9, Answer) 
 
 Applicant’s interview with a government investigator on October 20, 2011, also 
concerned any employment issues he had with other employers. Applicant claimed he 
only had a few tardiness issues with the employer discussed in Subparagraph 1.e 
above and possibly the Army Reserves when he served on duty. However, he failed to 
disclose all the employment issues with the companies for whom he worked as set forth 
in Subparagraphs 1.e and 1.f previously. Applicant denied this allegation. The evidence 
in the file shows the allegations to be true. (Items 3-9) 
 
 During the same October 20, 2011 interview, Applicant admitted to the 
government investigator and security clearance adjudicator that he was making 
statements he thought they wanted to hear (Subparagraph 1.i). He also told the 
investigator that he told his employers things he thought they wanted to hear to help him 
get through any unpleasantness that occurred at that time whether he meant the 
statements or not (Subparagraph 1.j). Applicant denied both of these allegations. 
However, the evidence in the file shows the SOR allegations to be accurate. (Items 3-9) 
 
 
 
 
 
 
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 Applicant certified as true and accurate on his SF-86 form on August 5, 2011, his 
negative answer to Question 13C, “Have you received a written warning, been officially 
reprimanded, suspended, or disciplined for misconduct in the workplace?” Applicant 
failed to disclose his employment disciplinary actions with the two employers set forth in 
Subparagraphs 1.e and 1.f. Applicant admitted this SOR allegation. (Items 3-9, Answer) 
 
Policies 
 
When evaluating the applicant=s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines (AG). In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are useful in evaluating the 
applicant=s eligibility for access to classified information. 
These guidelines are not inflexible rules of law. Instead, recognizing the 
complexities of human behavior, the administrative judge applies the guidelines in 
conjunction with the factors listed in AG ¶ 2 describing 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 Awhole-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[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.  
 
According to 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 the applicant or proven by Department Counsel, 
and has the ultimate burden of persuasion as to obtaining a favorable clearance 
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 the applicant may deliberately or inadvertently fail to protect or 
 
 
 
 
 
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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. 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. 
 The following will normally result in an unfavorable clearance action or 
administrative termination of further processing for clearance eligibility: 
 
(a) refusal, or failure without reasonable cause, to undergo or 
cooperate with security processing, including but not limited to meeting 
with a security investigator for subject interview, completing security forms 
or releases, and cooperation with medical or psychological evaluation; and 
 
(b) refusal to provide full, frank and truthful answers to lawful 
questions of investigators, security officials, or other official 
representatives in connection with a personnel security or trustworthiness 
determination. 
 
AG ¶ 16 describes conditions that could raise a security concern and may be 
disqualifying: 
 
(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; 
 
 
 
 
 
 
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(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: 
 
(1) untrustworthy or unreliable behavior to include breach of client 
confidentiality, release of proprietary information, unauthorized release of 
sensitive corporate or other government protected information: 
 
(2) disruptive, violent, or other inappropriate behavior in the 
workplace;  
 
(3) a pattern of dishonesty or rule violations; and, 
 
(4) evidence of significant misuse of Government or other 
employer's time or resources; and 
 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a vulnerability to exploitation, manipulation, or duress, such 
as (1) engaging in activities which, if known, may affect the person's 
personal, professional, or community standing, or (2) while in another 
country, engaging in any activity that is illegal in that country or that is 
legal in that country but illegal in the United States and may serve as a 
basis for exploitation or pressure by the foreign security or intelligence 
service or other group. 
 
 
 
 
 
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 Applicant had various performance issues with his four private employers while 
working for them as a security and loss prevention investigator from 2007 to 2011. 
Three employers terminated Applicant because he did not meet performance standards, 
failed to follow warnings for various employment related violations, and for not stopping 
a burglary at a store on his security route.  
 
 Applicant also had two security concerns when he joined and was in basic 
training for the Army. He tested positive on an enlistment drug test, but it was excused 
by the induction center commander because there may have been a bad batch of 
testing materials. While in basic training, Applicant accepted non-judicial punishment for 
communicating a threat on July 6, 2006. Applicant allegedly stated that, if he could bring 
back a round of ammunition from the firing range, he would use it to kill his drill 
instructor.  
 
 All of these events satisfy the requirements under AG ¶ 16(c), 16(d), and 16(e) 
as disqualifying security concerns. They are credible adverse information under the 
drug involvement, personal conduct, psychological conditions, and criminal conduct 
guidelines. Considered as a whole they support a whole-person assessment of 
questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to 
comply with rules and regulations, and other characteristics showing the Applicant may 
not properly safeguard protected information under AG ¶ 16(c). The same facts apply to 
AG ¶ 16(d) with the same determination because of Applicant’s inappropriate behavior 
in the workplace, a pattern of rule violations, and misuse of the employer’s time or 
resources. Finally, Applicant’s personal conduct between 2005 and 2011 creates a 
vulnerability to exploitation, manipulation, or duress because it affects his community 
standing along with his personal and professional reputation.   
 
Next, Applicant failed to disclose on his SF-86 his employment issues with two 
former employers, did not inform the government investigator of the accurate 
information regarding his employers until confronted by that person during an interview 
on October 20, 2011, and admitted he told the investigator and his former employers 
what they wanted to hear to avoid unpleasantness. All these allegations as set forth in 
SOR allegations Subparagraphs 1.g to 1.k support the disqualifying conditions of AG ¶¶ 
16(a) and 16(b) because of the deliberate omissions of relevant facts on the personal 
security questionnaire and deliberately providing false information to a government 
investigator.  
 
AG ¶ 17 provides conditions that could mitigate security concerns: 
 
 
 
 
 
 
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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; 
 
(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. 
 
(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. 
 None of these mitigating conditions apply. Applicant did not attempt at any time 
to make prompt efforts to correct any and all omissions or falsifications in the relevant 
documents or to the government investigator. No authorized personnel told Applicant 
what to answer on the SF-86 nor did he cooperate fully and truthfully. The offenses and 
incidents are not minor or infrequent. There is a pattern of this type of conduct. 
Applicant has not obtained any counseling to correct his past behavior. He has not 
taken positive steps to reduce or eliminate his vulnerability to coercion or exploitation. 
The information about Applicant is substantiated and he admitted most of it. Association 
with criminals is not relevant in this case. Consequently, there is no mitigation to alter 
the outcome of this security determination.  
 
 
 
 
 
 
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Whole-Person Concept 
 
Under the whole-person concept, the administrative judge must evaluate an 
applicant=s eligibility for a security clearance by considering the totality of the applicant=s 
conduct and all relevant circumstances. The administrative judge should consider the 
nine adjudicative process factors listed at AG & 2(a): 
 
(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.      
 
I considered the potentially disqualifying and mitigating conditions in light of all 
facts and circumstances surrounding this case. Applicant demonstrated a pattern of 
inappropriate and questionable conduct from 2005 to 2011 that calls into question his 
ability to safeguard classified information. He could not confine his conduct to accepted 
employment norms or complete his work assignments in accordance with his 
employer’s requirements. Applicant also could not fully disclose accurately and honestly 
information the government sought upon which to make an informed judgment about his 
security eligibility. The government had to investigate Applicant to find the truth and 
expose the serious discrepancies between the information he disclosed and what 
actually occurred.  
 
Overall, the record evidence leaves me with serious questions or substantial 
doubts as to Applicant=s eligibility and suitability for a security clearance. For all these 
reasons, I conclude Applicant did not mitigate the security concerns under the guideline 
for Personal Conduct. I conclude the whole-person concept against Applicant.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: 
 
 
 
 
 
 
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Paragraph 1, Guideline E:   AGAINST APPLICANT 
 
          Subparagraphs 1.a to 1.k:   Against 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.    
 
 
                  
_________________ 
PHILIP S. HOWE 
Administrative Judge