KEYWORD: Guideline J; Guideline E
DIGEST: Applicant’s descriptions of his felony arrests are neither consistent with the conduct of
a reasonable person nor are they credible.  Also, Applicant failed to notify his employer of the
most recent misconduct, as he was required to do.  The Judge’s analysis does not address these
incidents as a cumulative whole.  The record, viewed as a whole, does not support the Judge’s
favorable decision.  Favorable decision reversed.
CASENO: 12-04813.a1
DATE: 07/31/2015
DATE: July 31, 2015
In Re:
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Applicant for Security Clearance
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ISCR Case No. 12-04813
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On   
March 13, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision–security concerns raised under Guideline J (Criminal Conduct) and Guideline E (Personal
Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). 
Applicant requested a decision on the written record.  On April 9, 2015, after considering the record,
Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert Robinson Gales
granted Applicant’s request for a security clearance.  Department Counsel appealed pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issue on appeal: whether the Judge’s favorable
decisions was arbitrary, capricious, or contrary to law.  Consistent with the following, we reverse
the Judge’s decision.
The Judge’s Findings of Fact
Applicant works for a Defense contractor, a job he has held since 2000.  He has three
children.  He received a security clearance in late 2010.  Applicant’s SOR alleges several incidents
of criminal conduct.  In early 2008, he got into an argument with his girlfriend.  He stopped the car
he was driving, got out, and walked through an apartment complex.  At the same time, the police
were investigating a complaint of burglary.  They ordered Applicant to stay where he was, but
Applicant ignored them.  When they questioned him about the burglary, he refused to answer.  The
police arrested Applicant for burglary (a felony) and for obstructing justice.  The burglary charge
was later dropped to trespassing.  Applicant pled guilty to the charges as amended and was
sentenced to twelve months confinement (suspended), unsupervised probation to two years, and to
a fine.  
Later that year, Applicant got into another dispute with his girlfriend.  Applicant states that
he pushed her into a television, breaking it, although she reported that he had kicked the television
screen.  Applicant left, taking her car keys.  Applicant was charged with trespass, petty larceny, and
damaging property.  The charges were ultimately dismissed, Applicant paying $91 in costs.  
In late 2010, Applicant was driving with a relative to a friend’s house.  Five or six police cars
stopped them, ostensibly for a broken brake light.  Apparently a confidential informant had reported
that a large quantity of cocaine was being delivered to the house.  As the police approached the car,
the relative fled, though he was later caught.  Applicant left the car and began to walk away.  A
search of a trash can near where Applicant had been standing was found to contain two grams of
cocaine.  
Applicant did not report the 2010 incident to his employer, despite a security policy that
required him to do so.  Applicant’s employer gave him a “Final Written Warning,” stating that he
had held a clearance for several years and had completed security training which discussed, among
other things, employee responsibility concerning adverse information.  
When he had completed his security clearance application (SCA) earlier in 2010, Applicant
did not disclose his 2008 arrest for burglary.  However, Applicant did state that he had been arrested
for trespassing and, later in the year, for grand larceny and destruction of property, mischaracterizing
the larceny charge.  Applicant claimed that his failure to list the burglary charge was an honest
mistake, in that he had assumed the question was limited to convictions.
Applicant acknowledged making mistakes and in being in situations where his judgment was
not at its best.  “He is not proud of his actions, and he has made efforts to remove himself from all
volatile situations that could negatively impact him.”  Decision at 5.  He has broken up with his
girlfriend and is active in the community.  
The Judge’s Analysis
The Judge found that Applicant’s failure to notify his employer of his cocaine arrest was
deliberate.  However, he concluded that his omission of the burglary arrest was not.  He cited to
evidence that Applicant had disclosed his arrest on the date in question and identified another as a
felony, albeit erroneously.  Under the circumstances, the Judge concluded that Applicant did not
intend to deceive when he omitted the burglary.  The Judge also found that Applicant’s
circumstances raised concerns under Guideline J.  In concluding that he had mitigated the concerns
raised under Guidelines E and J, the Judge cited to the length of time that had elapsed since his last
incident of security significant conduct, evidence that he had changed his lifestyle since the time in
question, and evidence of his community involvement, which he concluded demonstrated
rehabilitation.  
Discussion
There is a strong presumption against the grant or maintenance of a security clearance.  See
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After
the Government produces evidence raising security concerns, the burden falls upon the applicant to
rebut or mitigate those concerns.  See Directive ¶ E3.1.15.  The standard applicable in security
clearance decisions “is that a clearance may be granted only when ‘clearly consistent with the
interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 
“Any doubt concerning personnel being considered for access to classified information will be
resolved in favor of the national security.”  Directive, Enclosure 2 ¶ 2(b). 
In deciding whether the Judge's rulings or conclusions are erroneous, the Board will review
the Judge's decision to determine whether:  it does not examine relevant evidence; it fails to
articulate a satisfactory explanation for its conclusions, including a rational connection between the
facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). 
Department Counsel has challenged the Judge’s finding that Applicant did not deliberately
omit his 2008 felony arrest from his subsequent SCA.  After examining this issue in light of the
record as a whole, we conclude that the Judge’s findings and analysis are sustainable.
However, we reach different conclusions regarding the other issues raised in the Appeal
Brief.  Department Counsel argues that the record, viewed as a whole, does not support the Judge’s
favorable decision.  We note findings of fact, and/or record evidence, of the following: (1) Applicant
was arrested for felony burglary and was ultimately convicted of obstruction of justice by refusing
to follow police orders or answer lawful questions; (2) Applicant was convicted of larceny and
destruction of property, resulting from his having taken his girlfriend’s car keys after he shoved her 
against a television set, breaking it; (3) Applicant was arrested for possession of cocaine, soon after
his most recent security clearance was approved; (4) Applicant’s descriptions of his felony arrests
are neither consistent with the conduct of a reasonable person nor are they credible.1 and (5)
Applicant deliberately failed to notify his employer of the most recent misconduct.  As Department
Counsel contends, the Judge’s analysis does not address these incidents as a cumulative whole.  See,
e.g., ISCR Case No. 00-0628 at 6 (App. Bd. Feb. 24, 2003) for the proposition that a Judge “must
assess the totality of an applicant’s conduct and circumstances . . . not just consider [them] in a
piecemeal manner.”  In the case before us, the Judge’s analysis leaves unaddressed the extent to
which this conduct continues to cast doubt upon Applicant’s willingness to comply with rules and
regulations, matters crucial to a clearance adjudication.  See Directive, Enclosure 2 ¶ 30: Criminal
conduct “[b]y its very nature . . . calls into question a person’s ability or willingness to comply with
laws, rules and regulations.”  
Department Counsel argues that Applicant’s case for mitigation rests principally on his
uncorroborated claims of reform and rehabilitation.  Therefore, the Judge’s credibility determination
is central to a proper resolution of the issues that Department Counsel has raised.  Normally, we 
give deference to a Judge’s credibility determinations.  Directive ¶ E3.1.32.1.  However, when, as
here, an applicant has chosen a decision on the written record, the Judge’s credibility determinations
are not entitled to the same deference, insofar as the Judge had no ability to observe the applicant’s
demeanor while testifying.  See, e.g., ISCR Case No. 04-12680 at 3 (App. Bd. May 21, 2007).  In
the case before us, and as Department Counsel argues, Applicant has not presented a credible case
for mitigation with the candor expected of persons who hold security clearances.  In an earlier case,
a Hearing Office Judge stated that it was highly improbable that the applicant had been the victim
of accidental circumstances resulting in criminal charges on two separate occasions.  “It is simply
too difficult to believe that [the applicant] . . . had such bad luck, not once but twice.”  ISCR Case
No. 07-04390 at 5 (A.J. Feb. 26, 2008).  Similarly under the facts of this case, the inherent
improbabilities in Applicant’s presentation, along with evidence that Applicant has more than once
deliberately failed to comply with rules and regulations, undermine the Judge’s favorable
conclusions about Applicant’s credibility and diminish the extent to which they are entitled to even
the limited deference associated with decisions on the written record.   
Moreover, even if one were to accept, arguendo, the Judge’s apparent conclusion that
Applicant’s criminal history is less serious than it appears, a reasonable person would still conclude
that the Judge’s mitigation analysis is deficient, especially regarding Applicant’s failure to disclose
his cocaine arrest to his employer.  Willingness to advise an employer of one’s own security
significant conduct or circumstances is a signal responsibility of those with access to classified
information.  Failure to comply with his duty raises concerns about the person’s fitness for a
clearance.  See, e.g., ISCR Case No. 11-03294 at 2 (App. Bd. Oct. 24, 2012) (Failure to notify an
employer of criminal charges is a significant factor in a clearance decision).  In the case before us,
the lack of evidence of further criminal actions, accompanied by evidence of Applicant’s community
involvement, do not begin to mitigate concerns arising from what the Judge himself described as a
“clear cut” incident of malfeasance.  Decision at 9.  That is, Applicant was willing to put his own
interests ahead of the need of his employer, and the DoD, for full and complete information about
1“Applicant’s uncorroborated explanations for his arrests and the bizarre circumstances he attributes to them
(i.e. he just happened to be walking in the vicinity of a burglary and then refused to stop and was uncooperative with
police.  Or, his car just happened to be stopped by five police cars and, after he fled, cocaine just happened to be found
nearby where he was arrested) def[y] common sense and [are] unworthy of credibility.”  Appeal Brief at 9.   
matters directly relating to Applicant’s continued access to national secrets.  The evidence upon
which the Judge relied is not sufficient to show that Applicant is no longer willing to neglect this
important duty, when viewed in light of the standard set forth in Egan, supra.
To sum up, Applicant engaged in a pattern of criminal conduct that impugned his judgment
and his willingness to abide by rules and regulations; he deliberately failed to inform his employer
of his cocaine arrest, impugning his willingness to comply with security rules; and he presented his
case in a way that further undermines his credibility.  The record does not support the Judge’s
conclusion that all doubt about Applicant’s fitness for a clearance has been resolved in favor of
national security, as the Directive requires.  Directive, Enclosure 2 ¶ 2(b).  As it stands, the Judge’s
decision fails to consider important aspects of the case and offers an explanation for the decision that
runs contrary to the weight of the record evidence.  ISCR Case No. 03-22861, supra.   
Order
The Decision is REVERSED.  
Signed: Michael Ra’anan             
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett              
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody              
James E. Moody
Administrative Judge
Member, Appeal Board