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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)      ISCR Case No. 14-01056
)
)
Applicant for Security Clearance
Appearances
For Government: Julie Mendez, Esq., Department Counsel
For Applicant: Brian M. Barke, Esq.
                                                                            
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Decision
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LYNCH, Noreen, A., Administrative Judge:
On May 29, 2014, the Department of Defense (DOD)  issued a Statement of
Reasons (SOR) alleging security concerns arising under 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 requested a hearing before an
administrative judge. The case was assigned to me on March 4, 2015. A notice of
hearing was issued on March 17, 2015, scheduling the case for May 8, 2015. The case
was postponed for good cause and rescheduled for May 15, 2015, with appropriate
notice. Government Exhibits (GX) 1-5 were admitted into evidence without objection.
Applicant testified and presented eight documents for the record (AX A-H). The
transcript was received on May 21, 2015.  Based on a review of the case file, eligibility
for access to classified information is denied.
Applicant acknowledged that he received a disciplinary action in 1991 concerning wrongful appropriation      1
of government property, but he explained he had receipts for the tool kits. (GX 4 and 5)
Applicant produced the birth certificate for his son and explained that he was legally authorized to get      2
benefits for him. His ex-wife told him during the divorce that the son might not be his. 
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Findings of Fact
In his answer to the SOR, Applicant denied the majority of the factual allegations
under  Guideline  E (Personal Conduct) with explanations. 
Applicant is a 58-year-old engineering manager for a defense contractor. He
served in the military from 1974 until 1994, receiving an honorable discharge.  Applicant1
obtained his undergraduate degree in 2005. He is divorced and has one son and one
daughter. (AX E and F). Applicant has worked for his current employer for
approximately a year and a half, but he has worked in the area of defense contracting
for many years. He submitted an application for a security clearance on December 13,
2011. He has held a security clearance since 1975 and has gone through various
security clearance reviews. (GX ).
In 2008, Applicant underwent a series of three polygraphs for another agency.
During the polygraphs he discussed various matters ranging from work situations to
personal matters, such as inappropriate touching of his daughter in 1985.  In a letter
dated June 5, 2009, Applicant was “disapproved for access to classified information.”
The letter detailed the reasons why his security clearance was denied to include the
following: admitting to taking items and tools from 1997 to the present; inappropriately
touching his daughter in 1985; withholding information during a 1997 security
processing; and collecting benefits from the military on his son, who was not his
biological son.  (GX 3)2
The 2009 decision letter states that Applicant admitted that from 1997 through
current security processing, he took the various tools and items listed in SOR 1.a. In
Applicant’s appeal letter, he noted that “during my first Life-Style Polygraph in 1997 I
told the personnel what I have done that (sic) and was very truthful about it. This
appears to be inconsistent with a denial.” (GX 30
Applicant appealed the 2009 decision to grant him access to sensitive
compartmented information (SCI). In his appeal letter he denied taking any tools or
equipment from employers. He stated that it was standard procedure to ask the
customer if they wanted the various items described in SOR. If the customer said, “No”,
the contractor could keep the parts and materials. (Tr. 37) He explained that they were
unique tools (crimping tools, punch tools, fiber optic tools) and the company did not
want them. (GX 3) Applicant was adamant that he never took anything that belonged to
any government agency while he was working in the military or as a contractor. (Answer
to SOR)
Applicant disclosed the fact on his SF 86 that he was denied by the CIA in 2009.      3
3
In that same 2009 appeal letter, Applicant stated that the incident with his
daughter is very disturbing. He said that he did not remember it in his 1997 interview
and that he had been drunk and pushed it out of his mind until he was going through
the 2008 polygraphs. He wrote in his appeal letter that his comment to the tester was
taken out of context. Applicant stated that if he remembered it he might not have said
something because it was embarrassing enough to tell a man and the person giving the
lifestyle polygraph was a woman.  (GX 3)
In January 2012, Applicant was interviewed by an investigator from OPM. He lied
to the investigator in that he stated that he did not know the reasons why he was denied
a full-scope polygraph clearance.  He acknowledged that he did not have the 20093
denial letter with him but it is not plausible that he could not remember the reasons why
he was denied, especially given the fact that he appealed the decision and addressed
each issue. 
As to the issue of the inappropriate touching of Applicant’s daughter in 1985,
Applicant neither admitted nor denied the allegation. He stated that this was a memory
that came back to him when taking the polygraph. He said that he did not know if it was
true; it came back to him one night after sleeping; and that he was drunk at the time of
the possible incident. He added that to his knowledge there was no investigator from
any agency who contacted his daughter to learn more about the allegation. At the
hearing, Applicant denied the allegation as to his daughter. (Tr. 70)
At the hearing, Applicant stated that his daughter (4 years old) was in his bed;
he got into the bed; and he took her underwear off and touched her. He still believes
that it was a dream. (Tr. 58) Applicant reiterated that he told the investigator that he “did
not remember” whether or not he inappropriately touched her.
Applicant submitted six letters of recommendation from people who have known
him for many years. Each letter attests to Applicant’s trustworthiness and ability to
safeguard classified information.  He is described by his employers as a gentleman who
is honest. His current employer describes him as a hardworking, loyal, and trustworthy
person. (AX A)
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.
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      4
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).      5
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      6
 See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive      7
information), and EO 10865 § 7.
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      8
 Id.      9
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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 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 a preponderance4
of evidence.  The ultimate burden of persuasion is on the applicant.  5 6
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 clearance7
determinations should err, if they must, on the side of denials.”  Any reasonable doubt8
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 a9
security clearance does not necessarily reflect badly on an applicant’s character. It is
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merely an indication that the applicant has not met the strict guidelines the President
and the Secretary of Defense established for issuing a clearance.
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.
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,
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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 received a disciplinary action in 1991 for wrongful appropriation of
government property while in the military. A 2009 decision letter bases its denial of a
security clearance on the fact that Applicant reported that he stole tools and equipment
from various employers. Another reason for denial listed in the letter cites Applicant’s
admission that he had inappropriately touched his daughter in 1985, and that he
withheld that information in a 1997 security clearance processing about inappropriately
touching his daughter in 1985. In Applicant’s 2009 appeal letter, he admitted during a
series of polygraphs in 2008 that in 1997, he told the personnel what he had done and
was truthful concerning taking tools and equipment from various employers. He denied
taking anything after  another life-style polygraph. In his appeal letter of 2009 to another
government agency, he did not deny inappropriately touching his daughter, but claimed
that he  thought it was a dream.
In January 2012, when interviewed by an investigator for DOD, Applicant lied to
the investigator when he denied that he knew the reasons why he was denied a full
scope polygraph security clearance in 2008. He acknowledged that he received a letter
of denial but did not have it with him. In his appeal of the 2008 denial of his security
clearance, he discussed each of the allegations in detail. Thus, it is not reasonable to
accept his claim that he forgot the reasons why his clearance was denied, especially the
allegation relating to his daughter. He now denies the allegations and presents an
inconsistent explanation.  AG ¶ 16(b), (c) and (e) apply.
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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;
(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.
As to the 1991 disciplinary action, Applicant has mitigated the allegation that he
accepted army benefits on behalf of his son to which he was not entitled due to the fact
that it occurred so long ago. Also, Applicant presented documentation that he has the
birth certificate for his son who received benefits from the military. This allegation has
not been substantiated.  As to mitigation for the 1985 inappropriate touching, there is no
corroboration. As to the taking of government tools from 1997, Applicant admitted to this
during his polygraph.  Applicant deliberately misled the government during his 2012
interview  when he did not provide the reasons why his security clearance was denied in
2008. None of the mitigating factors apply to his falsification under 1.c. As to SOR 1.b,
there is unsubstantiated information, and I find for Applicant as to 1.d.  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 1.c. 
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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 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
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 served in the military for 20 years and received an honorable discharge. He
presented six letters of recommendation. He has worked in the defense field and has
held a security clearance for a long time.
As to the personal conduct concerns, Applicant deliberately falsified his 2012
security clearance interview with respect to the deliberate omission of the reasons why
he was denied the security clearance in 2008.  I am not persuaded by latest explanation
about why he did not falsely deny knowing the reasons the other government agency
refused to grant him a security clearance during his  interview 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 the personal conduct guideline. 
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 E: AGAINST APPLICANT
Subparagraph 1.a: For Applicant
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Subparagraph 1.b: For Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d; 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 a security clearance.
Clearance is denied. 
                                                     
NOREEN A. LYNCH.
Administrative Judge