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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of:    ) 
      ) 
      )  ISCR Case No. 12-10636 
     ) 
Applicant for Security Clearance  ) 
 
 
Appearances 
 
For Government: Nicole A. Smith, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, Thomas M., Administrative Judge: 
 
Based on a review of the pleadings, exhibits, and testimony, eligibility for access 
to classified information is granted. Applicant presented sufficient information to mitigate 
personal conduct security concerns. 
 
Statement of the Case 
 
On June 5, 2012, Applicant submitted an Electronic Questionnaire for 
Investigations Processing (e-QIP) to obtain a security clearance required for a position 
with a defense contractor. After an investigation conducted by the Office of Personnel 
Management (OPM), the Department of Defense (DOD) could not make the affirmative 
findings required to issue a security clearance. DOD issued Applicant a Statement of 
Reasons (SOR), dated May 18, 2015, detailing security concerns for personal conduct 
under Guideline E. 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 (AG) effective in the 
DOD on September 1, 2006.  
 
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Applicant answered the SOR on June 20, 2015. He denied the two allegations of 
falsification of his security clearance application. Department Counsel was prepared to 
proceed on July 29, 2015, and the case was assigned to me on September 29, 2015. 
DOD issued a notice of hearing on October 22, 2015, scheduling a hearing for 
November 2, 2015. I convened the hearing as scheduled. The Government offered 
three exhibits that I marked and admitted into the record without objection as 
Government Exhibits (GX) 1 through 3. Applicant testified and submitted one exhibit 
that I marked and admitted into the record without objection as Applicant Exhibit (AX) A. 
I received the transcript of the hearing (Tr.) on November 16, 2015. 
 
Findings of Fact 
 
After a thorough review of the pleadings, transcript, and exhibits, I make the 
following essential findings of fact.  
  
Applicant is 40 years old and has been employed as a pipefitter in a government 
contracted shipyard since 2006. He has two years of college credit. Applicant first 
married on June 19, 1999, and divorced on July 5, 2006. He married his present wife on 
April 11, 2009. He has no children. (Tr. 11-12, 40-41; GX 1, e-QIP, dated June 4, 2012; 
GX 2, Personal Subject Interview, dated July 11, 2012) 
 
Federal Bureau of Investigations (FBI) records show that Applicant was arrested 
on September 23, 2005, and charge with possession of marijuana. The records also 
show that Applicant was arrested for possession of marijuana on November 28, 2011. 
(GX 3, FBI Identification Record, date May 3, 2012) The SOR alleges that in response 
to a police records question on the security clearance application asking if Applicant had 
been charged, convicted, or sentenced in the last seven years for a crime in any court, 
or is he currently on probation or parole, Applicant responded “no.”  He did not report 
his September 2005 and November 2011 arrests for possession of marijuana. (SOR 
1.a) The SOR also alleges that Applicant answered falsely to another question 
concerning his police record on the security clearance application when he responded 
“no” to a questions asking if he had ever been charged with a felony. Applicant was 
arrested on July 7, 1995, and charge with four counts of felony forgery and four counts 
of felony uttering. (SOR 1.b) 
 
Applicant volunteered during his interview with an OPM security investigator that 
in November 2011 he was stopped by police for driving on a suspended license. He 
admitted to the arresting officer that he had a blunt of marijuana in his pocket. Applicant 
was issued a citation for possession of marijuana and allowed to proceed to work. He 
was sentence to a fine; his driver’s license was suspended; and he was placed on 
probation for a year. He also admitted he was arrested on September 23, 2005, for 
possession of a blunt of marijuana in his car. Applicant was sentenced to a fine and six 
months of probation. He completed all requirements of both sentences. (Tr. 41-44) 
 
Applicant admitted that he was arrested on July 7, 1995, on four counts of felony 
forgery and uttering. Applicant took checks from his neighbor and wrote his own name 
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on the checks and cashed them. Applicant pled guilty to the felony charges. The 
charges were later dismissed after Applicant paid a fine and completed probation. (GX 
2, Personal Subject Interview, dated July 11, 2012; AX A, Court Documents, dated 
December 9, 1996) 
 
Applicant denied intentional falsification claiming that he made an honest mistake 
when completing his security clearance application. It was the first security clearance 
application he submitted. He was provided a paper copy of the application to complete a 
draft. He had to make phone calls to get some information he required for the form. He 
did not list his arrests for possession of marijuana on his draft copy because he did not 
believe that he had been arrested on both occasions since he was not taken to a police 
station, but merely issued a summons to appear in court. After completing the draft copy 
of the security application, Applicant discussed the application with a clerk in the 
company’s security office. Applicant informed her of the possession of marijuana 
offenses, and they discussed his reasons for not including them on the application. 
Applicant thought the clerk was making changes to his handwritten application. The 
clerk actually entered the data from the form to the electronic application. Applicant was 
provided a copy of the electronic application, but he did not read it carefully before 
signing the signature page. Applicant did not receive a paper copy of the electronic 
application until a month later. (Tr. 23-35) 
 
Applicant did not list the felony forgery and uttering offenses. His 1995 forgery 
offense came to mind when he completed the application, but he thought since it had 
been dismissed, he did not have to list the offense. He thought the offenses were no 
longer considered part of his criminal record. He read the part of the question that said 
to list charges even if dismissed. He made an honest mistake in believing that he did 
not have to list the offense. He thought the question was irrelevant since the offenses 
were dismissed. (Tr. 35-36)  
 
The security investigator asked him for details about the November 2011 
possession of marijuana charge during her interview with Applicant. He then told her 
that he was still on probation for the November 2011 offense. This line of questioning 
triggered his memory that he should tell her about both the September 2005 marijuana 
possession charge and the 1995 forgery and uttering felony. He told her about the 1995 
felony forgery charges that were dismissed. He told her the offenses were “gone” since 
it was dismissed. (Tr. 36-40) 
 
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 must be considered in 
evaluating an applicant’s eligibility for access to classified information. 
 
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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, the 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 
applicant has the ultimate burden of persuasion in seeking 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 
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 that the applicant may deliberately or inadvertently fail to 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. 
 
Analysis 
 
Personal Conduct 
 
Personal conduct is a security concern because conduct involving questionable 
judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and 
regulations can raise questions about an individual’s reliability, trustworthiness, and 
ability to protect classified and sensitive information. Of special interest is any failure to 
provide truthful and candid answers during the process to determine eligibility for 
access to classified information or any other failure to cooperate with the process (AG ¶ 
15) Personal conduct is always a security concern because it asks whether the person’s 
past conduct justifies confidence the person can be trusted to properly safeguard 
classified or sensitive information. Authorization for a security clearance depends on the 
individual providing correct and accurate information. If a person conceals relevant 
information or provides false information, the security clearance process cannot function 
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properly to ensure that granting access to classified or sensitive information is in the 
best interest of the United States Government.  
 
Applicant did not provide any derogatory criminal history information on his 
security clearance application. Applicant had two convictions for marijuana possession, 
and a felony conviction for forgery and uttering. While there is a security concern for a 
deliberate omission, concealment, or falsification of a material fact in any written 
document or oral statement to the Government when applying for a security clearance, 
not every omission, concealment or inaccurate statement is a falsification. A falsification 
must be deliberate and material. It is deliberate if it is done knowingly and willfully with 
intent to deceive. Applicant’s omission of the possession of marijuana and forgery 
offenses may raise a security concern under Personal Conduct Disqualifying Condition 
AG ¶ 16(a) (the 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 eligibility or trustworthiness, or award fiduciary 
responsibilities).  
 
For AG ¶ 16(a) to apply, Applicant’s omission must be deliberate. The 
Government established that Applicant admitted facts from his June 5, 2012 e-QIP 
when he failed to list the possession of marijuana and forgery offenses. In his response 
to the SOR and at the hearing, Applicant denied intentional falsifying information on the 
e-QIP. When the allegation of falsification is controverted, the Government has the 
burden of proving it. Prove of an omission, standing alone, does not establish or prove 
an applicant’s intent or state of mind when the omission occurred. An administrative 
judge must consider the record evidence as a whole to determine whether there is 
direct or circumstantial evidence concern an applicant’s intent or state of mind at the 
time of the omission.  
 
Applicant did not deliberately fail to provide correct and accurate information on 
the security clearance application. His testimony as to how the security clearance 
application was completed is credible. He discussed some of the information with the 
clerk assisting him in completing the application, but she did not include all of the 
information in the electronic version of the application. In spite of the guidance on the 
form for what information to include on the form, Applicant did not list the drug and 
forgery offenses. As a lay person completing the security clearance application for the 
first time, Applicant’s reasons for not listing the offenses are consistent, logical, and 
reasonable. When the general question on drug offenses was raised during the security 
interview, he voluntarily told the security investigator about the drug offenses and the 
forgery offense. He explained why he did not include the information on the application. 
In his response to the SOR and at the hearing, he provided the same explanation. He 
did not believe that he was arrested for the possession of marijuana since he was never 
taken to the police station but just issued a summons. He does now acknowledge that 
he was charged with drug possession and sentenced. Since the forgery charge had 
been dismissed, he did not believe the offense was still relevant. He had logical and 
fact-based reasons for not including the offenses on the security clearance application 
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establishing that his failure was not deliberate. Therefore, the Government has not 
established a prima facie case. Even if it did, Applicant voluntarily provided sufficient 
information to mitigate the potential failure to provide complete and accurate information 
in the security clearance process under the provisions of personal conduct mitigating 
condition A ¶ 17(b) (the refusal 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 cooperate fully and truthfully).  
 
Whole-Person Analysis 
 
Under the whole-person concept, the administrative judge must evaluate an 
applicant’s security eligibility 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. 
 
Under AG ¶ 2(c), the ultimate determination of whether to grant a security clearance 
must be an overall commonsense judgment based upon careful consideration of the 
guidelines and the whole-person concept.  
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. Applicant presented sufficient 
information to establish that he did not deliberately provide false or inaccurate 
information on his security clearance application. His reasons for not including the drug 
and forgery information are reasonable and logical. Overall, the record evidence leaves 
me without questions and doubts as to Applicant’s judgment, reliability, trustworthiness, 
and eligibility and suitability for a security clearance. For all these reasons, I conclude 
that Applicant has mitigated security concerns arising under the personal conduct 
guidelines. 
 
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:   FOR APPLICANT 
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Subparagraphs 1.a – 1.b:   For Applicant 
 
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is granted. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge