The Government conceded that Applicant had no opportunity to review or authenticate the subject interview      1
(Item 9) prior to the SOR. Applicant objected to the admissibility.
1
                                                             
                           
                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)      ISCR Case No. 12-06414
)
Applicant for Security Clearance
Appearances
For Government: Braden M. Murphy, Esq., Department Counsel
For Applicant: Pro se
                                                                            
______________
Decision
______________
LYNCH, Noreen, A., Administrative Judge:
On August 25, 2014, the Department of Defense (DOD)  issued a Statement of
Reasons (SOR) alleging security concerns arising under Guideline J (Criminal Conduct)
and Guideline E (Personal Conduct). DOD Directive 5220.6, Defense Industrial
Personnel Security Clearance Review Program (January 2, 1992), as amended
(Directive); and the Adjudicative Guidelines (AG) implemented in September 2006. 
Applicant timely answered the SOR and elected to have his decision based on
the written record in lieu of a hearing. Department Counsel submitted a File of Relevant
Material (FORM) on January 21, 2015.  Applicant received the (FORM) on January 30,
2015, and was provided an opportunity to file objections and submit material to refute,
extenuate, or mitigate the Government’s case.  Applicant submitted additional1
information for the record (Applicant EX 1). The case was assigned to me on March 27,
2015. Based on a review of the case file, eligibility for access to classified information is
denied.
2
Findings of Fact
In his answer to the SOR, Applicant admitted the factual allegations under
Guideline J (Criminal Conduct) and under Guideline E (Personal Conduct). (Item 3)
Applicant is a 41-year-old employee of a defense contractor. He graduated form
high school in 1992. Applicant obtained his undergraduate degree in 1996. In 2001,
Applicant obtained a master’s degree. He attends post-graduate courses. He is married
and has six children. Applicant has worked for his current employer since 2009. He
submitted an application for a security clearance on January 4, 2012. (Item 5)
Criminal Conduct
Applicant has two criminal arrests for domestic violence in August and October
2001. (Item 6) The victim was his first wife, from whom he is now divorced. He admits to
the domestic violence arrests. Applicant pled guilty to the first misdemeanor domestic
violence charge. He was fined, placed on probation for one year, and ordered to attend
counseling.  (Item 7)
Applicant’s explanation for his August 15, 2001, arrest is based on the fact that
he and his wife were in the process of a divorce, but still living together. They had two
young children. He admits that he had been drinking and an argument ensued when he
returned home. Applicant grabbed her wrists trying to obtain car keys. He attended
court-ordered counseling classes and paid fines. He completed all probationary
requirements.
As to the October 21, 2001, charge for Felony criminal sexual conduct. Applicant
pled guilty to domestic violence and sentenced to 93 days in jail-deferred probation for
18 months, ordered to continue outpatient counseling, not consume drugs or alcohol,
subject to random drug tests, and have no contact with the victim except for exchange
of minor children. (Item 6)
Applicant denied charges of felony sexual conduct. He and his wife were
intoxicated upon returning from a party. The police report revealed that according to the
victim, Applicant was holding her down and demanding sex. She left the house with the
two children. Applicant recalls the incident in a different manner, but realizes that the
allegations are clouded in his memory due to his mental condition and the length of
time. He also acknowledged that he was alcohol dependent at the time. (Item 3)  
Rehabilitation
Applicant has been divorced from his first wife since 2002. He remarried and has
four children. He has worked as an engineer for many years. There are no other
criminal incidents in the record. Applicant continued his education and has received
numerous awards and certificates of recognition from his company. In 2014, Applicant
received a performance cash award. He also has received certificates for courses in
3
leadership. He submitted a 2014 performance review which rates him as “consistently
exceeds expectations.” He is regarded as a valuable member of the organization.
(Response to FORM)
Applicant also noted that he has recently “informally” been diagnosed with
Asperger’s Syndrome, which may in retrospect explain his earlier behavior. 
Personal Conduct
Applicant admitted the information that was raised under Criminal Conduct. The
SOR bases the Personal Conduct allegations in ¶¶ 2.a and 2.b on the two criminal
allegations to which Applicant admitted. His arrests and convictions in 2001, are not in
dispute.
Applicant completed a security clearance application on January 4, 2012. In
response to Section 22-Police Record, Applicant reported a 2001 DUI, but he did not
disclose either domestic violence arrests that occurred in the same year. 
In his Answer to the SOR, Applicant admitted to not truthfully answering Section
22-Police Record: HAVE YOU EVER been convicted of an offense involving domestic
violence or a crime of violence.  He answered no to this question regarding the
domestic disputes. He explained that another person with a clearance advised him that
he did not need to offer information or events that would be damaging to his character.
He regrets that he did not list the information. He emphasizes that the events in 2001
were isolated incidents.
In his Response to FORM, Applicant elaborated on his failure to disclose the full
extent of his criminal history. He denied doing such in a deliberate or willful way. It was
the result of poor judgment and failure to read the questions closely as to HAVE YOU
EVER?. He noted that he believed he only had to go back ten years and should not
divulge encounters that may lead to a denial of his security clearance. Now he realizes
that the advice was not only false but damaging to him. In his 2015 response to FORM,
he changed his answer to state that he answered to the best of his knowledge. I find
that he deliberately omitted relevant information on his January 4, 2012 security
clearance application. 
Policies
When evaluating an applicant’s suitability for a security clearance, an
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. These guidelines are not inflexible
rules of law. Instead, recognizing the complexities of human behavior, they are applied
in conjunction with the factors listed in the adjudicative process. An administrative
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision.
Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables
known as the “whole-person concept.” An administrative judge must consider all
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      2
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).      3
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      4
 See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive      5
information), and EO 10865 § 7.
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      6
 Id.      7
4
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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
The Government must present evidence to establish controverted facts alleged
in the SOR. 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. . . .”  The burden of proof is something less than a2
preponderance of evidence.  The ultimate burden of persuasion is on the applicant.  3 4
A person seeking access to classified information enters into a fiduciary
relationship with the Government based on 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 classified information. Such
decisions entail a certain degree of legally permissible extrapolation of 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.”  “The clearly consistent standard indicates that security clearance5
determinations should err, if they must, on the side of denials.”  Any reasonable doubt6
about whether an applicant should be allowed access to sensitive information must be
resolved in favor of protecting such information.  The decision to deny an individual a7
security clearance does not necessarily reflect badly on an applicant’s character. It is
merely an indication that the applicant has not met the strict guidelines the President
and the Secretary of Defense established for issuing a clearance.
5
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;
(b) discharge or dismissal from the Armed Forces under dishonorable
conditions;
(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted;
(d) individual is currently on parole or probation; and
(e) violation of parole or probation, or failure to complete a court-
mandated rehabilitation program.
Applicant’s admissions and the evidence of arrests in 2001 for domestic violence
are sufficient to raise AG ¶¶ 31(a) and (c). 
AG ¶ 32 provides four conditions that could mitigate security concerns:
(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;
(b) the person was pressured or coerced into committing the act and
those pressures are no longer present in the person's life;
(c) evidence that the person did not commit the offense; 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.
After reviewing the mitigating conditions, I find that due to the passage of time
and the absence of any other criminal incidents, AG ¶ 32(a) applies. He has nothing in
6
his record after 2001. It was isolated with respect to his ex-wife. He is now remarried.
Also, Applicant has produced evidence of rehabilitation, including good employment,
higher education, and no recurrence of criminal activity since 2001.  I find that he has
mitigated the security concern under criminal conduct.  
 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.
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;
(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,
7
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.
(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;
(f) violation of a written or recorded commitment made by the individual to
the employer as a condition of employment; and
(g) association with persons involved in criminal activity. 
Applicant admitted in his answer to the SOR that he did not truthfully answer the
question concerning having ever had any domestic arrests (Police Record) Section 22.
However, he relied on a colleague who told him not to put anything that might look
negative. He did remember to list a DUI arrest from the same year, 2001. Thus, it is not
reasonable to assume that he forgot to list the information about the domestic violence
arrests and charges the same year. He has since changed his answer.  AG ¶ 16(a)
applies.  There is not sufficient evidence to conclude Applicant falsified his 2012
interview. SOR ¶ 1.c found for Applicant.
AG ¶ 17 provides conditions that could mitigate security concerns:
(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;
8
(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.
Applicant acknowledged his criminal behavior in his answer. Thus SOR 2a. Is
found in his favor. However, as to SOR 2.b, Applicant deliberately misled the
government on his 2012 security clearance application. None of the mitigating factors
apply to his falsification under 2.b. As to SOR 2.c, there is unsubstantiated information,
and I find for Applicant as to 2.c.  I have doubts about his judgment and reliability. After
considering the mitigating conditions outlined in AG ¶ 17, I conclude Applicant has not
mitigated the security concern under personal conduct for SOR 2.b. 
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 the 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
9
consideration of the guidelines and the whole-person concept. As noted above, the
ultimate burden of persuasion is on the applicant seeking a security clearance. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the whole-person factors.
Applicant has rehabilitated himself with respect to the 2001 domestic violence incidents.
He is remarried and has a good job. He has had no other criminal incidents since 2001.
He has received recommendations from his job. He mitigated the criminal conduct
concerns.
As to the personal conduct concerns, Applicant deliberately falsified his 2012
security clearance application with respect to the deliberate omission of the two 2001
domestic violence convictions. He relied on bad advice and then later stated that he just
misunderstood. I am not persuaded by his change of answer that he did not falsify his
security clearance application in 2012. 
I have doubts about his judgment and reliability. Any doubts must be resolved in
favor of the Government. Applicant has not met his burden in this case. He has not
mitigated the security concerns under personal conduct. Clearance is denied.
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: FOR APPLICANT
Subparagraphs 1.a-1.b: For Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: For Applicant
10
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 a security clearance.
Clearance is denied. 
                                                     
NOREEN A. LYNCH.
Administrative Judge