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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 14-04454 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: David F. Hayes, Esq., Department Counsel 
For Applicant: Richard W. Rataczak, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines E (Personal 
Conduct) and J (Criminal Conduct). Eligibility for access to classified information is 
granted. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on September 11, 2012. On 
October 27, 2014, the Department of Defense (DOD) sent him a Statement of Reasons 
(SOR) alleging security concerns under Guidelines E and J. The DOD acted 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 (AG) implemented by the DOD on September 1, 2006.  
 
 Applicant received the SOR on November 14, 2014; answered it on November 
28, 2014; and requested a hearing before an administrative judge. Department Counsel 
was ready to proceed on January 16, 2015. The case was assigned to me on January 
23, 2015, reassigned to another administrative judge on February 3, 2015, to balance 
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the workload, and reassigned back to me on March 4, 2015, due to the assigned 
administrative judge’s family medical situation. The Defense Office of Hearings and 
Appeals (DOHA) issued a notice of hearing on March 4, 2015, scheduling the hearing 
for March 24, 2015. An amended notice of hearing was issued on March 17, 2015, 
rescheduling the hearing for March 25, 2015. Applicant waived the 15-day notice 
requirement of Directive ¶ E3.1.8. (Tr. 6.) I convened the hearing as rescheduled. 
Government Exhibit (GX) 1 was admitted in evidence without objection. Applicant 
testified, presented the testimony of one witness, and submitted Applicant’s Exhibits 
(AX) A and B, which were admitted without objection. DOHA received the transcript (Tr.) 
on April 6, 2015. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted SOR ¶¶ 1.a, 1.b, 1.d, and 1.e. He 
denied SOR ¶ 1.c. At the hearing, SOR ¶ 1.c was withdrawn. (Tr. 9.) Applicant’s 
admissions in his answer and at the hearing are incorporated in my findings of fact.  
 
 Applicant is a 35-year-old engineering technician employed by a federal 
contractor since February 2008. He is responsible for electronic repairs on Navy vessels 
and equipment. He also is the contract team lead for detachments supporting deployed 
Navy ships. (Tr. 19.) He has worked for federal contractors since July 2003, except for a 
two-month period of unemployment in 2004, when his employer went out of business. 
He has held a security clearance since 2009. (Tr. 30-31.). 
 
 Applicant attended college from August 1998 to December 2000, but he did not 
receive a degree. He married in March 2011. He and his wife have lived together for 
about 11 years. They have three children, ages 11, 10, and 3. Applicant’s 12-year-old 
son was born during a previous relationship and does not live with him. (Tr. 65-66.) 
 
 When Applicant submitted his SCA in September 2012, he disclosed that he was 
arrested in December 2009 for driving while intoxicated (DWI), speeding, and having an 
open container of alcohol in his vehicle. The open container belonged to a passenger. 
He also disclosed that the DWI and open-container charges were dismissed but that he 
paid a fine for speeding. (GX 1 at 28-29.) This arrest and its disposition are alleged in 
SOR ¶ 1.a, but the date of the offense is alleged to have been October 2009. 
 
In the same SCA, Applicant disclosed that he was charged with speeding and 
DWI in July 2012. (GX 1 at 29-30.) At the hearing, he testified that his blood-alcohol 
level when he was arrested was .09%. He pleaded guilty to reckless driving as a lesser 
offense of DWI and was sentenced to 30 days of community service and unsupervised 
probation for 12 months. He was required to attend an alcohol and drug education 
course, which caused him to miss time at work. He found the course embarrassing 
because his children asked what kind of school he was attending. (Tr. 54.) During the 
course, he learned: “There’s a lot of messed up people out there and it made me realize 
that I didn’t want to be in that position again because they are just not the type of people 
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that I wanted to be around or hear every day.” (Tr. 44.) He testified that he now rarely 
consumes alcohol. When he does, it is at home on weekends. (Tr. 47.) 
 
 SOR ¶ 1.d alleges that Applicant was arrested in May 2002 for a hit-and-run 
resulting in injury, a felony. He testified that he rented a car for a friend, who was 
involved in an accident and ran away because he did not have a driver’s license. 
Applicant was charged because he was the registered driver on the rental contract. On 
the advice of his attorney, he pleaded guilty to a misdemeanor rather than risk a felony 
conviction. (Attachment to answer; Tr. 50-51.) 
 
 SOR ¶ 1.e alleges that Applicant was arrested in November 2001 and charged 
with possession of marijuana. In his answer, Applicant admitted the allegation and 
stated that the charge was dismissed. (Attachment to answer.) At the hearing, he 
testified that he was treated as a first offender, completed a diversion program, and the 
charge was dismissed. (Tr. 42-43.) 
 
 Applicant’s supervisor, a retired Navy officer, has known Applicant for about 
seven and one-half years. He has promoted Applicant twice during that time. He 
considers Applicant an honest, forthright, trustworthy person and an experienced, 
talented technician. Applicant voluntarily self-reported the incidents in 2009 and 2012. 
His supervisor has never observed anything about Applicant’s behavior or work 
performance that would suggest an alcohol problem. (Tr. 18-37; AX A.) 
 
 Applicant’s operations manager, who has known him for seven years, submitted 
a statement supporting continuation of Applicant’s security clearance. He states: 
“[Applicant] consistently demonstrated honesty and integrity, trustworthiness, and good 
judgment. He continually models such behavior now and enforces it amongst his 
subordinate employees.”  As a supervisor in a high-visibility activity, Applicant “has 
represented this organization in exemplary fashion.” (AX B.) 
 
 In addition to his primary job, Applicant works part time at his family-owned 
automotive service center. (AX A.) About a year ago, he was licensed as a tugboat 
captain. He testified that a blood-alcohol level of .04% while driving would jeopardize his 
tugboat license. (Tr. 47-48.) 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
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Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available and reliable information about the 
person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 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. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005). Finally, an applicant “has the ultimate burden of 
demonstrating that it is clearly consistent with the national interest to grant or continue 
his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 
“[S]ecurity clearance determinations should err, if they must, on the side of denials.” 
Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
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Analysis 
 
Guideline E, Personal Conduct 
The concern under this guideline is set out in AG ¶ 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 conduct disclosed by Applicant on his 
SCA and during his testimony at the hearing establishes the following disqualifying 
conditions under this guideline: 
AG ¶ 16(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; 
AG ¶ 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-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 . . . a pattern of dishonesty or 
rule violations; and  
AG ¶ 16(e): personal conduct, or concealment of information about one's 
conduct, that creates a vulnerability to exploitation, manipulation, or 
duress, such as . . . engaging in activities which, if known, may affect the 
person's personal, professional, or community standing.  
 The following mitigating conditions are potentially relevant: 
 
AG ¶ 17(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; 
 
AG ¶ 17(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 
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AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress. 
 
 AG ¶ 17(c) is established. Although several of the offenses for which he was 
arrested were not minor and did not occur under unique circumstances, the conduct 
alleged in the SOR is not recent. There are no Abright line@ rules for determining when 
conduct is Arecent.@ The determination must be based on a careful evaluation of the 
evidence. See ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence 
shows Aa significant period of time has passed without any evidence of misconduct,@ 
then an administrative judge must determine whether that period of time demonstrates 
Achanged circumstances or conduct sufficient to warrant a finding of reform or 
rehabilitation.@ Id. Applicant’s most recent arrest was almost three years ago. Since that 
arrest, he has turned his life around. He established himself as a valuable employee, a 
respected leader, and a devoted and responsible father. He was candid, sincere, 
remorseful, and credible at the hearing.  
 
 AG ¶ 17(d) is established. Applicant has acknowledged his behavior. Although 
his attendance at an alcohol education course was court-ordered, it opened his eyes to 
the nature and consequences of his behavior. He now consumes alcohol infrequently 
and is focused on his job and his family. 
 
 AG ¶ 17(e) is established. Applicant disclosed his behavior in his SCA. He self-
reported his two DWI arrests to his supervisor, and he was open and candid at the 
hearing.  
 
Guideline J, Criminal Conduct 
 
The SOR cross-alleges Applicant’s personal conduct under this guideline. The 
concern raised by criminal conduct is set out in AG ¶ 30: “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.” 
Applicant’s disclosures on his SCA and admissions at the hearing establish two 
disqualifying conditions: AG ¶ 31(a) (“a single serious crime or multiple lesser offenses”) 
and AG ¶ 31(c) (“allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted, or convicted”).  
 
 The relevant mitigating conditions are: 
 
AG ¶ 32(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 
 
AG ¶ 32(d): there is evidence of successful rehabilitation; including but not 
limited to the passage of time without recurrence of criminal activity, 
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remorse or restitution, job training or higher education, good employment 
record, or constructive community involvement.  
 
 Both mitigating conditions are established, for the reasons set out in the above 
discussion of Guideline E. 
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an 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. An 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.  
 
 After weighing the disqualifying and mitigating conditions under Guidelines E and 
J, considering the factors in AG ¶ 2(a), and evaluating all the evidence in the context of 
the whole person, I conclude Applicant has mitigated the security concerns raised by his 
personal conduct and criminal conduct. Accordingly, I conclude he has carried his 
burden of showing that it is clearly consistent with the national interest to continue his 
eligibility for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline E (Personal Conduct):  FOR APPLICANT 
 
  Subparagraphs 1.a, 1.b, 1.d, and 1.e:  For Applicant 
 
  Subparagraph 1.c:     Withdrawn 
 
 Paragraph 2, Guideline J (Criminal Conduct):  FOR APPLICANT 
 
  Subparagraph 2.a:     For Applicant 
 
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Conclusion 
 
 I conclude that it is clearly consistent with the national interest to continue 
Applicant’s eligibility for a security clearance. Eligibility for access to classified 
information is granted. 
 
 
 
LeRoy F. Foreman 
Administrative Judge