DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 12-05949
)
)
Applicant for Security Clearance )
Appearances
For Government: Pamela Benson, Esquire, Department Counsel
For Applicant: Pro se
June 24, 2014
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on September 26, 2011.  On December 23, 2013, the Department of Defense
(DOD) issued a Statement of Reasons (SOR) detailing the security concerns under
Guidelines J and E for Applicant.  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 after
September 1, 2006.
 
Applicant answered the SOR in writing on January 6, 2014, and requested an
Administrative Determination by an administrative judge.  Department Counsel issued a
File of Relevant Material (FORM) on February 25, 2014.  Applicant acknowledged
receipt of the FORM on March 18, 2014, but issued no response.  The case was
assigned to me on May 15, 2014.  Based upon a review of the pleadings and exhibits,
eligibility for access to classified information is denied.
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Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in all the
Subparagraphs of the SOR, without explanations.
Applicant is a 33 year-old employee of a defense contractor.  (Item 4 at pages 5
and 9.)
Guideline J - Criminal Conduct & Guideline E - Personal Conduct
1.a.~1.f. and 2.a. In October of 2005, Applicant was cited for violation of rules
governing a state park and beach, by riding a dirt bike on state property.  He was fined
$300 and assessed court costs.  Three months later, In January of 2006, Applicant was
arrested and subsequently pled nolo contendere to reckless driving.  (Item 4 at pages
19~20.)  In part, he was placed on probation for six months, and fined $300.  (Id.)  Two
months later, in March of 2006, Applicant was arrested and subsequently pled nolo
contendere to trespassing, failure to stop on oral law enforcement command, and again
for violation of rules governing a state park and beach, by riding a dirt bike on state
property.  (Item 4 at pages 20~21.)  He was placed on probation for one year, and fined
$300.  (Id.) 
In 2010, Applicant was arrested and subsequently pled nolo contendere, again,
to failure to stop on oral law enforcement command.  He was fined $500.  The following
year, in January of 2011, Applicant was cited a third time for failure to stop on oral law
enforcement command.  (Item 4 at page 21.)  More recently, in April of 2011, Applicant
was arrested and subsequently pled guilty to assault on a person over the age of 60,
and trespassing.  (Item 4 at page 23~24, and Item 5.)  In January of 2012, he was
sentenced to 20 years in prison for the assault, and to one year in prison for the
trespass.  (Item 5.)  The prison sentence was deferred for five years.  (Id.)  Applicant is
still under probation as a result of the deferred prison sentence.
Guideline E - Personal Conduct
2.b.~2.f.  In October of 2005, Applicant was issued a verbal warning by his
current employer for un-excused absenteeism.  (Item 6 at page 5.)  In June of 2008,
Applicant was issued a written warning by his current employer for a violation of safety
policy.  (Item 6 at page 5.)  In August of 2008, Applicant was suspended for three days
by his current employer for inattention to duty.  (Item 6 at page 5.)  In May of 2009,
Applicant was suspended for an additional three days by his current employer for
having a prohibited cell phone while at work.  (Item 6 at pages 4~5.)  Finally, in April of
2010, Applicant was suspended for an additional five days by his current employer for
horseplay.  (Item 6 at page 4.)
Policies
When evaluating an 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
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disqualifying conditions and mitigating conditions, which are useful in evaluating an
applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law.  Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process.  (AG Paragraph 2.)  The administrative judge’s
over-arching adjudicative goal is a fair, impartial and commonsense decision.
According to AG Paragraph 2(c), the entire process is a conscientious scrutiny of a
number of variables known as the “whole-person concept.”  The administrative judge
must consider all available, reliable information about the person, past and present,
favorable and unfavorable, in making a decision.
The protection of the national security is the paramount consideration.  AG
Paragraph 2(b) requires that “[a]ny doubt concerning personnel being considered for
access to classified information will be resolved in favor of national security.”  In
reaching this decision, I have drawn only those conclusions that are reasonable, logical
and based on the evidence contained in the record.  Likewise, I have avoided drawing
inferences grounded on mere speculation or conjecture.
Under Directive Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph E3.1.15,
the applicant is responsible for presenting “witnesses and other evidence to rebut,
explain, extenuate, or mitigate facts admitted by applicant or proven by Department
Counsel. . . .”  The applicant has the ultimate burden of persuasion as to obtaining a
favorable security decision.
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence.  This
relationship transcends normal duty hours and endures throughout off-duty hours.  The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information.  Decisions include, by necessity, consideration
of the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information.  Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.”  See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).
Analysis
Guideline J - Criminal Conduct
Paragraph 30 of the adjudicative guidelines sets out the security concern relating
to Criminal Conduct:
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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 adjudicative guidelines set out certain conditions that could raise security
concerns.  Subparagraph 31(a) provides that “a single serious crime or multiple lesser
offenses” may raise security concerns.  Under Subparagraph 31(d) when an “individual
is currently on parole or probation” that fact may raise security concerns.  Applicant has
been cited or arrested on six separate occasions.  As a result of his last arrest in April of
2011, he was convicted of a felony.  He is still under probation as a result of that
conviction.  I find no countervailing mitigating condition that is applicable here.
Subparagraph 32(a) requires that “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.”  That is not the case here, as Applicant’s last arrest, which was his fourth
arrest, was only three years ago.  The mitigating condition under Subparagraph 32(d)
requires that “there is evidence of successful rehabilitation; including but not limited to
the passage of time without recurrence of criminal activity . . . good employment record .
. . .,” That is not the case here, as Applicant is still on probation; and as will be
discussed under Personal Conduct, his employment record is less than sterling.
Guideline E - Personal Conduct
The security concern for Personal Conduct is set out in AG Paragraph 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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 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-man assessment
of questionable judgment, untrustworthiness, unreliability . . . .  This includes but is not
limited to consideration of: (2) disruptive, violent, or other inappropriate behavior in the
workplace; and (3) a pattern of . . . rule violations.” may be disqualifying.  Above and
beyond Applicant’s above-mentioned acts of criminal conduct, he has five rule violations
in the work place, for which he has been suspended from work for a total of 11 days.  I
also find no countervailing mitigating condition that is applicable here.  Subparagraph
17(c), requires that “the offense is so minor, or so much time has passed . . . or it
happened under such unique circumstances that it is unlikely to recur and does not cast
a doubt on the individual’s reliability, trustworthiness, or good judgment.”  Such is clearly
not the case here.
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
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conduct and all the circumstances.  Under AG Subparagraph 2(c), the ultimate
determination of whether to grant eligibility for a security clearance must be an overall
commonsense judgment based upon careful consideration of the guidelines and the
whole person concept.
The Administrative Judge should also consider the nine adjudicative process
factors listed at AG Subparagraph 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.
I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Overall, the record evidence leaves me
with questions and doubts as to Applicant’s eligibility and suitability for a security
clearance.  For all these reasons, I conclude Applicant has not mitigated the security
concerns arising from his admitted Criminal Conduct and Personal Conduct.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline J: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
Subparagraph 1.f: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: Against Applicant
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Subparagraph 2.d: Against Applicant
Subparagraph 2.e: Against Applicant
Subparagraph 2.f: 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.
Richard A. Cefola
Administrative Judge