1
 
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )  
)
)       ISCR Case No. 14-00179
)
Applicant for Security Clearance )
Appearances
For Government: Caroline E. Heintzelman, Esquire, Department Counsel
For Applicant: Kent Morgan, Esquire
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the pleadings, exhibits, and testimony, Applicant’s
eligibility for access to classified information is denied.
Statement of the Case
Applicant completed and certified an Electronic Questionnaire for Investigations
Processing (e-QIP) on June 20, 2013. The Department of Defense (DOD) issued
Applicant a Statement of Reasons (SOR) on April 2, 2014, detailing security concerns
under Guideline J, criminal conduct, and Guideline E, personal conduct. The action was
taken under Executive Order 10865, Safeguarding Classified Information within Industry
(February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel
Security Clearance Review Program (January 2, 1992), as amended (Directive); and the
Adjudicative Guidelines For Determining Eligibility for Access to Classified Information
(AG), implemented on September 1, 2006. 
 
W hen  SOR allegations are controverted, the Government bears the burden of producing evidence sufficient1
to prove controverted allegations. Directive, ¶ E3.1.14. “That burden has two components. First, the
Government must establish by substantial evidence that the facts and events alleged in the SOR indeed took
place. Second, the Government must establish a nexus between the existence of the established facts and
events and a legitimate security concern.” See ISCR Case No. 07-18525 at 4 (App. Bd. Feb. 18, 2009),
(concurring and dissenting, in part) (citations omitted). 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. 08-06605 at 3 (App. Bd. Feb. 4, 2010); ISCR Case No. 08-07290 at 2 (App. Bd. Nov. 17,
2009).
GE 1; Tr. 22-24, 56.2
Tr. 100-127.3
2
Applicant received the SOR on April 10, 2014, and he answered it on May 14,
2014. Applicant requested a hearing before an administrative judge with the Defense
Office of Hearings and Appeals (DOHA). Department Counsel was prepared to proceed
on July 16, 2014. DOHA assigned this case to another administrative judge on July 17,
2014. For workload considerations, DOHA reassigned the case to me on August 19,
2014. DOHA issued a Notice of Hearing on September 5, 2014, and I convened the
hearing as scheduled on September 29, 2014. The Government offered five exhibits
(GE) marked as GE 1 through GE 5, which were received and admitted into evidence
without objection. Applicant and four witnesses testified. He did not submit any exhibits
at the hearing. I held the record open until October 10, 2014, for Applicant to submit
additional matters. Applicant timely submitted one exhibit, which is marked as AE A and
has been received and admitted without objection. The record closed on October 10,
2014.  DOHA received the hearing transcript (Tr.) on October 15, 2014.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a -
1.e of the SOR. His admissions are incorporated herein as findings of fact. He denied
the factual allegations in ¶ 2.a of the SOR.  He also provided additional information to1
support his request for eligibility to retain a security clearance. After a complete and
thorough review of the evidence of record, I make the following findings of fact.  
Applicant, who is 57 years old, works as an electronic test engineer for a DOD
contractor. Applicant has worked for his employer since July 2003. There is no evidence
that he mishandled classified information or that his employer has disciplined him. He
has held a security clearance since September 2005.2
Applicant’s team leader for three years, his technical liaison, who has known him
for 15 years, and the manager for test operations testified. Each describe him as
trustworthy, dependable, and a hard worker. They verified that he had not had any
security infractions. They were aware of some of the SOR allegations, but not all of the
allegations. All recommended him for a security clearance3
GE 1; GE 2; Tr. 56-58, 130-131.4
Between December 1975 and March 1981, Applicant was arrested and charged with a number of5
misdemeanor offenses related to alcohol, marijuana, and reckless driving. None of these arrests are listed in
the SOR as a security concern. GE 5.
GE 1; GE 2; GE 5; Tr. 26-27, 46-49, 51-52, 65-69, 84.6
GE 5; Tr. 46-52, 65-68, 94-96.7
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Applicant graduated from college with an associate’s degree in 1986 and a
bachelor’s degree in 1989. Applicant and his wife married in August 1983 and divorced
in November 2006. They remarried in April 2013. They have five children, ages 30, 29,
27, 24, and 21.4
Criminal Conduct - Driving While Impaired5
In 2008, Applicant worked the late or second shift at work. He returned home at
the end of his work shift, but found it difficult to sleep during the day. His physician
prescribed Ambien, a sleeping medication. Applicant understood that he should not
drive for six to eight hours after taking this medication. On August 14, 2008, after he
woke up, Applicant drove to the grocery store. He believed he had complied with the
recommended restriction on driving. On his way to the store, he rear-ended a car. No
one was injured in this accident. The police investigated and charged him with driving
under the influence of alcohol (DUI). Applicant failed the field sobriety test, which he
believes was due to his back and knee surgeries. The breathalyzer test results were
negative for alcohol. Applicant appeared in court in February 2009 and pled guilty to a
reduced charge of driving while impaired (DWI), a class B misdemeanor. The court
sentenced him to community service, fined him $1,000, and placed him on probation.
He complied with the terms of his sentence and completed probation.6
In April 2011, while still working the second shift, Applicant continued to use
Ambien. On April 25, 2011, Applicant drove to work. He hit gravel in the center median
of a road. A police officer observed this incident and stopped him. He again failed the
field sobriety test, and the police officer charged him with a class B misdemeanor DWI
not related to alcohol. Applicant pled guilty to DWI on September 12, 2011. The court
sentenced him to 180 days in jail, which was suspended; the court fined him $1,000;
and the court placed him on probation for 12 months. He complied with the terms of his
sentence and completed probation. Applicant advised that he no longer works the
second shift and that he has moved closer to work.7
Criminal Conduct - Retail Theft
Applicant shopped at a local retail store on November 19, 2010. Store security
personnel observed him opening packages with knives and removing the knives, then
placing the packaging and knives in different parts of the store. Store security did not file
a report of this incident nor did they detain Applicant as he left the store. On November
GE 4; GE 5; Tr. 30-31, 71-72.8
GE 2; GE 5; Tr. 34-39.9
GE 5; Tr. 36-39.10
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30, 2010, Applicant returned to the same retail store. Store security again observed
Applicant select two knives, open the packaging, and conceal the packaging on a shelf
before exiting the store. He returned a short time later in slightly different clothing. Store
security saw Applicant return to the location where the open knife packaging had been
placed, put something in his hand, and conceal it on his person. Store security called
the local police department. Police officers arrived shortly thereafter. The retail store
wanted to pursue theft and damaging property charges against Applicant. After
receiving the Miranda warning, Applicant talked with the police officer and told the
officer that he had taken two knives the prior week. At the hearing, Applicant denied an
intent to shoplift, but agreed that he damaged property. He stated that he opened the
packages to check for defects because he had previously purchased defective knives
and other items at the store.8
As a result of the above incidents, the police filed two class B misdemeanor retail
theft charges against Applicant, which received two court case numbers. Applicant
failed to appear for his review hearing on December 22, 2010, and the court issued a
warrant for failure to appear. Applicant contacted the court on January 4, 2011 to
schedule a court date. The docket sheet reflects that Applicant was booked on the
warrant on January 11, 2011, which resulted in the warrant being recalled on January
12, 2011, and Applicant being released from the lockup. At the March 2011 pretrial
conference, the court dismissed the retail theft charge in one case, and Applicant pled
guilty to the retail theft charge in the second case on April 5, 2011. The court fined him.
The rest of his sentence is unknown. There is no evidence that he violated probation.9
In January 2011, Applicant again entered a retail store and opened packages. He
did not purchase these items. The police arrested and charged him with criminal
mischief. He pled guilty to damaging property, a class C misdemeanor on February 9,
2011. The court fined him $200; sentenced him to 90 days in jail, which was suspended;
and placed him on probation for 12 months. He complied with the terms of his sentence
and completed probation.10
At another retail store on June 7, 2012, Applicant took a package of fishing line
and placed it in his pocket even though he had the ability to pay for it. He was stopped
by store security after he left the store. The police charged him with two counts of retail
theft (shoplifting). Applicant pled not guilty to the charges. At trial on August 29, 2012,
the court found Applicant guilty of both class B misdemeanor charges and scheduled
sentencing for September 19, 2012. The court sentenced him to 180 days in jail for
each count to be served consecutively and placed him on 18 months of supervised
probation. Following a review hearing on September 26, 2012, the court ordered
Applicant released from jail, placed him in the work diversion program, and placed him
GE 2; GE 5; AE A; Tr. 42-45, 84-85.11
5
on GPS monitoring for six months. The court allowed Applicant to return to work during
the week and placed him on weekend home detention. The court released Applicant
from custody on January 9, 2013, and his probation ended on March 25, 2014.
Applicant’s 2012 arrest occurred more than 12 months after his February 2011
sentencing.11
When Applicant completed his e-QIP, he did not list his retail theft arrests in 2010
and 2011 and his 2011 arrest for DWI. He did list an arrest for speeding and misuse of a
prescription drug in 1998, for DWI in 2008, and for retail theft in 2012. By listing these
arrests, Applicant placed the Government on notice of an issue with criminal conduct. 
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines. In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are used in evaluating an
applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The administrative judge’s overarching
adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶
2(c), the entire process is a conscientious scrutiny of a number of variables known as
the “whole-person concept.” The administrative judge must consider all available,
reliable information about the person, past and present, favorable and unfavorable, in
making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical, and based
on the evidence contained in the record.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An
applicant has the ultimate burden of persuasion for obtaining a favorable security
decision.
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
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Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk an applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
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
AG ¶ 30 expresses the security concern pertaining to criminal conduct, “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.”
AG ¶ 31 describes conditions that could raise a security concern and may be
disqualifying:
(a) a single serious crime or multiple lesser offenses; and
(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted.
Between August 2008 and June 2012, Applicant was arrested five times, twice
for DWI and three times for retail theft or damaging store property. He completed
probation for his last arrest in March 2014. A security concern has been established
under AG ¶¶ 31(a) and 31(c).
AG ¶ 32 provides conditions that could mitigate security concerns. I have
considered all the mitigating conditions, and especially the following:
(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; and
(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.
7
Applicant’s DWI convictions are not alcohol-related, but rather occurred because
he took sleep medication to help him sleep during the day following working the late
shift. He understood that he should not drive for six to eight hours after he took the
medicine. Although he believed he had waited the required time before he drove, the
medicine had a longer impact on him. He no longer works the late shift, which allows
him to sleep on a normal schedule. He lives much closer to work. His change in his
work schedule, his sleeping habits, and his commuting patterns makes it unlikely that he
will be arrested for DWI related to sleep medication. His trustworthiness, reliability, and
judgment are not in doubt as a result of the DWIs, the last of which occurred more than
three and one-half years ago. SOR allegations 1.a and 1.d are mitigated under AG ¶¶
32(a) and 32(d).
As for the arrests for retail theft (shoplifting) and damaging store property,
Applicant showed poor judgment when he opened sealed packages of store items then
placed the open packages and goods in other sections of the store. Despite being
arrested for this conduct in November 2010, he continued to open store packages and
take items he had not purchased and was arrested twice more for his conduct. He
continued to show a lack of good judgment over several years. There are no mitigating
conditions applicable to SOR allegations 1.b, 1.c, and 1.e.
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
about an individual's reliability, trustworthiness and ability to protect
classified information. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying:
(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; 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
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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.
AG ¶ 16(c) does not apply. As indicated in the criminal conduct section, there is
sufficient information for an adverse security clearance determination without resort to
the catch-all provisions of AG ¶ 16(c). SOR ¶ 2.a simply repeats the misconduct
discussed in the previous section under the criminal conduct guideline. 
AG ¶ 16(e) and the general judgment and unwillingness to comply with rules
have some application. When Applicant engaged in the criminal conduct alleged under
the disqualifying conditions in AG ¶ 31, he engaged in conduct which showed poor
judgment and adversely affected his personal, professional, and community standing.
See ISCR Case No. 11-12202 at 4-5 (App. Bd. June 23, 2014)(noting a personal
conduct judgment and trustworthiness concern even through conduct alleged was
already covered under another guideline, and citing the collateral consequence of that
conduct as being relevant, but not dispositive).
AG ¶ 17 provides conditions that could mitigate security concerns:
(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; and
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress.
Applicant’s last DWI offense happened more than three and one-half years ago
and occurred because he suffered residual effects from a sleeping medication. He now
works a regular schedule, which allows him to return to normal sleeping patterns. There
is little likelihood that he will be arrested for a DWI because of sleeping medication. AG
¶ 17(c) applies to his DWI arrests.
Applicant has acknowledged his arrests and convictions for retail theft
(shoplifting) and damaging store property. He complied with the terms of his probation,
which concluded recently. The scope of this security-related conduct is thoroughly
addressed under Guideline J. He disclosed three arrests on his e-QIP. He addressed
his conduct in his response to the SOR and at the hearing. I do not believe Applicant
can be coerced or pressured into releasing classified information by threats of public
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disclosure of the negative information detailed under Guideline J, supra, and known by
many. SOR ¶ 2.a is found for Applicant.
Whole-Person Concept
Under the whole-person concept, the administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of an applicant’s
conduct and all relevant circumstances. The administrative judge should consider the
nine adjudicative process factors listed at AG ¶ 2(a):
(1) the nature, extent, and seriousness of the conduct; (2) the
circumstances surrounding the conduct, to include knowledgeable
participation; (3) the frequency and recency of the conduct; (4) the
individual’s age and maturity at the time of the conduct; (5) the extent to
which participation is voluntary; (6) the presence or absence of
rehabilitation and other permanent behavioral changes; (7) the motivation
for the conduct; (8) the potential for pressure, coercion, exploitation, or
duress; and (9) the likelihood of continuation or recurrence. 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a
security clearance must be an overall commonsense judgment based upon careful
consideration of the guidelines and the whole-person concept. The decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct,
but on a reasonable and careful evaluation of all the evidence of record to decide if a
nexus exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant
was more than 50 years old when he decided to open packages in retail stores to check
the contents of the packages for defects. At the time he did this, he held a security
clearance, a privilege which requires Applicant to act with the utmost integrity and
honesty. His conduct at the retail stores shows a lack of integrity and honesty which
concerns the Government. Applicant violated the trust given to him by the Government.
While his DWI arrests occurred because the effects of a sleeping medicine had not
completely worn off, his conduct in the retail stores was a conscious decision by him.
He completed the probation for his last arrest only eight months ago. He has not had
sufficient time to show that he can make good decisions and can be trusted to act in the
Government’s best interest.
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 mitigated the security concerns arising from his personal
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conduct under Guideline E, but he has not mitigated the security concerns arising from
his criminal conduct under Guideline J.
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: For Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: Against Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                                              
MARY E. HENRY
Administrative Judge