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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of:    ) 
      ) 
      )  ISCR Case No. 14-02981 
     ) 
Applicant for Security Clearance  ) 
 
 
Appearances 
 
For Government: Rhett L. Petcher, Esq., Department Counsel 
For Applicant: Christopher Graham, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, Thomas M., Administrative Judge: 
 
Based on a review of the pleadings, exhibits, and testimony, eligibility for access 
to classified information is denied. Applicant did not mitigate personal conduct security 
concerns. 
 
Statement of the Case 
 
On May 23, 2013, 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 April 1, 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 April 28, 2015. He denied in part and admitted in 
part the one allegation. He admitted that he was terminated by his employer but denied 
it was because he falsified his timesheets. Department Counsel was prepared to 
proceed on October 21, 2015, and the case was assigned to me on October 28, 2015. 
DOD issued a notice of hearing on November 24, 2015, scheduling a hearing for 
December 16, 2015. I convened the hearing as scheduled. The Government offered six 
exhibits that I marked and admitted into the record without objection as Government 
Exhibits (GX) 1 through 6. Applicant testified and submitted eight exhibits that I marked 
and admitted into the record without objection as Applicant Exhibits (AX) A through H. I 
received the transcript of the hearing (Tr.) on December 24, 2015. 
 
Findings of Fact 
 
After a thorough review of the pleadings, transcript, and exhibits, I make the 
following essential findings of fact.  
  
Applicant was born in Hong Kong in 1967 and is 48 years old. He immigrated to 
the United States in 1983 with his family at age 15, and was granted United States 
citizenship in 1988. He graduated from high school in the United States, and attended a 
college in the United States, graduating in 1991 with a bachelor’s degree in engineering 
and computer science. He has taken some courses for a master’s degree. He served in 
the Army as an aviation mechanic from June 1993 until March 1998. He was discharged 
as a sergeant (E-5) with an honorable discharge. He held a top secret security 
clearance while on active duty. Applicant first married in October 1993, and divorced in 
September 1998. He married again in 2007 and has three young children. His wife is 
employed in market research. 
 
After his discharge from the Army, Applicant was employed by a defense 
contractor from 1998 until he was laid off in May 2002. He was unemployed, but worked 
as a construction worker until September 2004, when he returned to work as an 
engineer for a defense contractor. In March 2008, he changed career fields and was a 
bank manager until August 2008. He returned to work for a defense contractor as a test 
engineer in November 2008. He was terminated from this position in March 2013. He 
has been employed by another defense contractor as an engineer since April 2013. He 
is seeking a security clearance for his employment with this defense contractor. (Tr. 22-
25; GX 1, e-QIP, dated May 23, 2013)  
 
The SOR alleges that Applicant was terminated from his employment with a 
defense contractor because he falsified his timesheets between September 2012 and 
January 2013. In support of this allegation, Department Counsel presented the 
employer’s adverse report to the DOD Consolidated Adjudications Facility (GX 2, dated 
April 15, 2013); a Joint Personnel Adjudication System (JPAS) entry concerning the 
termination (GX 3, dated April 25, 2013); transcript of the OPM personal subject 
interview (dated July 3, 2013); the employer’s Employee Corrective Action memo (GX 5, 
dated March 14, 2013); and the employer’s summary of investigation (GX 6, dated 
February 22, 2013). 
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Applicant started employment as a design and analysis test engineer with the 
employer in November 2008. Applicant had three unit managers during his first few 
years of employment. Applicant’s performance ratings were “meets expectations,” which 
was the usual rating for the overwhelming majority of the company’s employees. (Tr. 
45-46) 
 
The unit had some performance issues, so a new manager, AB, was assigned as 
the new supervisor in March 2011. AB was known in the company as a manager who 
could improve the performance of a poor performing unit. Applicant stated that AB’s 
only concern as the unit manager was to have the unit’s engineers meet the unit’s 
assigned schedule, cost, and performance goals. Applicant claims that as soon as AB 
became the supervisor, he harassed him by “nit picking” his work. Applicant did not like 
AB’s approach to supervision and management. Applicant received a very poor rating 
on his 2011 performance review. In January 2012, Applicant complained to the 
company’s Human Resources division (HR), but did not allege discrimination. HR did 
not address Applicant’s complaint but placed him on a 45-day Performance 
Improvement Program (PIP). Applicant met weekly with AB and representatives from 
HR to discuss his performance. After 45 days, he was advised that he passed all of his 
performance improvement goals. (Tr. 36-38, 41-45)    
 
In March 2012, Applicant was issued a warning for excessive and non-business 
related internet use at work. Applicant claims the harassment continued, and he 
believed AB was looking for reasons to terminate him. Applicant again contacted the HR 
about AB’s treatment. In July 2012, HR convened a meeting with Applicant, AB, and the 
functional manager of his unit. Applicant did not claim discrimination at the meeting, but 
did allege unfair and hostile treatment by AB. No action was taken by HR. The alleged 
unfair and hostile treatment continued. Applicant filed an ethics complaint with the 
company’s ethics division in August 2012. He did not allege unfair treatment based on 
race, gender, or religion. No action was taken and the harassment continued. Applicant 
received another poor performance review in December 2012.  
 
Applicant sought assistance and received counseling from a psychologist from 
the employer’s assistance program starting in January 2012. Applicant wrote the 
psychologist seeking information about his treatment from the psychologist when he 
was preparing his response to the SOR. His e-mails to the psychologist requesting 
information indicated that he was depressed during 2012 because of AB’s actions. He 
accused AB of making false statements on his performance evaluation. He claimed he 
was entrapped by the security investigator to admit the false tmesheets. Applicant’s 
medical records show that he was treated for depression in 2012. (AX A, e-mails, dated 
April/May 2015; AX D, Medical Records dated February 16, 2015)  
 
Applicant had child care issues because he had three minor children and his wife 
also worked. His children were in daycare, and the daycare closed at 6 pm, and was 
located at least an hour from his place of employment. Applicant’s wife also worked, 
and it was difficult for her at times to pick up the children on time. Applicant had been 
advised during the PIP process by AB that he had to work at his desk for the 40 hours 
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he worked in a week. Applicant was scheduled to work from 9 to 5 each day without a 
designated lunch. The company had a policy that an employee could perform part of 
their work at home at the discretion of the manager. Even though most of Applicant’s 
work had to be performed at work, he claims he could complete test plans and reports 
at home. Applicant asked to work from home, but AB did not approve the request. 
Applicant claims other engineers were permitted to work from home. (Tr. 26-37) 
 
Applicant’s company has a strict policy that employees must accurately report 
time and attendance data in the company’s Employee Timekeeping System (ETS). 
Since Applicant was a direct-charge employee, his salary was charged against a 
specific government contract. Accurate data was required to charge the government for 
his work. In addition, the company required accurate data to determine the amount of 
work needed on certain projects to assist in preparing bids for future contracts.  
 
In December 2012, AB learned that Applicant was not at his desk for the entire 
40-hour work week. AB advised HR that Applicant, on four separate occasions in 
December 2012, had entered eight hours of work in the ETS when he was only present 
for seven hours of work on those days. He knew Applicant left early because of child 
care requirements. In addition, he knew that Applicant left the work site for lunch. 
Applicant met with AB and the HR staff. Applicant admitted that he was present at work 
less time than the amount of time he recorded in the ETS. It was agreed that the 
December inaccurate timesheets would be resolved by allowing Applicant to submit four 
hours of vacation pay to cover the difference. Applicant was also instructed by HR how 
to accurately complete the ETS. In January 2013, when Applicant returned to work after 
the holidays, he continued to leave work early and to record eight hours at work in the v 
b ETS.  
 
The employer conducted a more detailed investigation of Applicant’s work 
attendance and the information on his hours worked in the ETS. An analysis was made 
of the times his company pass was swiped on entering and leaving work, and the 
logoff/shutdown times of his work computer. The analysis disclosed an average of 26-
questionable minutes per day recorded during the period October 1, 2012, to January 
16, 2013. Applicant was interviewed by a company investigator. He admitted that due to 
child care problems, he was present at work an average of approximately 7.5 hours per 
day of the 8 hours that he entered in the ETS from September 4, 2012, to February 
2013. This was consistent with the time analysis. He also admitted going off-site 12 
times during the period for 30-minute lunches. On those 12 days, he admitted working 
only seven hours per day of the eight he recorded in the ETS. The investigation 
concluded that Applicant violated company policies and procedures on attendance at 
work and timekeeping. (GX 6, Summary of Investigation, dated February 22, 2013) 
Applicant was discharged from the company on March 14, 2013. (GX 5, Employee 
Corrective Action Memo, dated March 14, 2013) 
 
Applicant admitted to the security investigator during the personal subject 
interview that he falsified his timesheets as alleged. However, he felt he was terminated 
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for complaining about his supervisor, AB. (GX 4, Personal Subject Interview, dated July 
3, 2013, at 2-3)  
 
In July 2013, Applicant wrote the commanding generals of two military 
commands with oversight over the contracts he worked. He also sent a complaint letter 
to the Inspector General (IG) at the Army post where the Army command with oversight 
over the contract with his former employer was located. He informed them of his 
accomplishment on the contracts and complained of AB’s behavior. He specifically told 
them his perception of AB’s poor communication skills and condescending manner to 
subordinates. He provided a list of short comings of his former employer’s performance 
on the contracts that the Government should investigate. He provided a list of other 
employees that faced the same treatment that he received from AB. He also provided a 
list of people who could corroborate his information concerning AB. Applicant did not 
receive a response to his allegations from the two generals or the IG. (AX G, Letter, 
dated July 3, 2013; AX H, Letter, undated)  
 
In September 2013, Applicant filed a discrimination complaint against his 
employer alleging that he was terminated because he was a minority. (AX B, Charge of 
Discrimination, dated September 19, 2013) The Equal Employment Opportunity 
Commission (EEOC) dismissed Applicant’s complaint because it was unable to 
conclude after an investigation that the information showed a violation of the equal 
employment statutes. (AX C, Dismissal and Notice or Rights, dated December 2, 2013). 
 
One of Applicant’s coworkers testified that he worked with Applicant from 2009 
until 2012. AB was also the witness’s supervisor. AB had problems with most of the 
people in the unit. The witness was one of many people who left the unit because of AB. 
He knows that before AB became the manager, Applicant received satisfactory ratings. 
AB was very critical of Applicant’s performance, and the witness is aware that AB rated 
Applicant’s performance as unsatisfactory at least one time. He was not aware that 
Applicant was placed on a PIP by AB.  
 
The coworker testified that the company tracks the hours employees worked. 
Accurate time keeping is important because the government is charged for the hours 
worked; the company used the data to determine the profit and loss from each contract; 
and the data was used as a basis for estimating future bids. Each employee’s timesheet 
is signed off at the end of the week by the supervisor. The supervisor is on-site so they 
can verify that the employee worked the hours claimed on the timesheet. The 
supervisor should sign off on the timesheet only when they are sure that the employee 
worked the hours claimed. The witness was not aware that the company accused 
Applicant of recording hours in the ETS that were not worked. He also verified that a 
supervisor had the discretion to allow an employee to work from home. The witness was 
allowed to work from home on occasions. He never observed AB discriminate against 
Applicant based on his race. He never observed Applicant arrive at work late or leave 
early. He observed that Applicant was on time for work, did his work, and accurately 
performed his assigned tests. The witness believed that AB had a “bone to pick” with 
many people and Applicant happened to be one of those people. (Tr.66-74) 
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A systems engineer testified that he worked with Applicant for approximately six 
years. He described Applicant as a very astute, intelligent, and hard-working employee. 
Applicant, the witness, and others had issues with AB. He described AB’s management 
style as abrupt. He assigned tasks to people just to see how they would do. He did not 
care about the person’s experience and knowledge before assigning a task. The 
witness, a retired military officer, feels you do not challenge people, but you groom and 
mentor them to do the job. The witness said he received his lowest performance rating 
from AB. AB was eventually transferred and a former supervisor was sent to manage 
the unit. Conditions in the unit improved with the arrival of the new supervisor.  
 
The systems engineer witness was allowed to work from home on occasion. He 
was not aware that Applicant was not permitted to work from home. The manager could 
authorize working from home and the employee recorded the work hours in the ETS. It 
was not necessary to log into a company computer and be on the company’s network to 
work from home. He knows of other employees that were not permitted to work from 
home so they left the company. He also testified that accurate recording of hours 
worked was very important for employees working on government contracts. The 
witness would recommend Applicant for a security clearance. (Tr. 74-89) 
 
Applicant presented two letters of recommendation from design and analysis 
engineers who worked with him in 2012. One worked with Applicant on the testing 
procedures for equipment being delivered to an allied nation. Applicant was always 
pleasant to deal with and always provided quality work. He would seek out other 
workers to confirm that he correctly understood the issues and his approach to testing 
was valid. (AX D, Letter, dated May 28, 2015) The other letter was from a design and 
analysis engineer who worked with Applicant for the employer for over three years. He 
wrote that Applicant was a well-rounded professional with the knowledge and 
experience to make good decisions. He is a very diligent employee and maintained the 
highest professional standards in his work. He delivered high-quality results and set an 
example for his team members. (AX E, Letter, Undated) 
 
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. 
 
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, 
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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. (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.  
 
Applicant was required to record the hours he was at work in his company’s 
employee time keeping system. From at least September 2012 until January 2013, 
Applicant recorded that he worked eight hours a day when in fact he had left work some 
days approximately a half-hour early and on some days left the workplace for an 
unauthorized lunch break. The falsification of the time worked in the company’s 
employees time system raises personal conduct disqualifying condition 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 
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rules and regulation, 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, unauthorized release of sensitive corporate or other government 
protected information… (3) a pattern of dishonesty or rules violations; (4) evidence of 
significant misuse of Government or other employer’s time or resources.  
 
I considered the following personal conduct mitigating conditions under 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:  
 
(d) the individual has acknowledge 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 
 
(f) the information was unsubstantiated or from a source of questionable 
reliability. 
 
 None of the mitigating conditions apply. Applicant deliberately provided false 
information in the company’s employee time system. The accuracy of the time worked 
information was important both to the company and the government agency that 
contracted with the company. He continuously provided false information so his actions 
were frequent and ongoing. He continued to provide inaccurate time information after 
being advised of the need for accuracy so his actions were deliberate. Applicant did 
have child care issues, but these circumstances were not so unique as to cause him to 
provide inaccurate information in a data system important to his employer. Since 
Applicant’s actions were deliberate, and he continued to provide inaccurate information 
after being counseled, it is possible that the actions would happen in the future. The 
information concerning Applicant’s actions have been substantiated by an investigation. 
Applicant admitted he provided inaccurate information on his timesheet. Applicant failed 
to provide sufficient information to conclude that we was the victim of discrimination in 
the way he was treated, rated, and dismissed by his supervisor. Applicant failed to 
provide sufficient information to mitigate the personal conduct security concern.  
 
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):  
 
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(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. I considered the complimentary 
comments of Applicant’s coworkers. Applicant admitted to deliberately continuing to 
falsify his timesheets after being counseled about the need for accuracy. The 
timesheets were important to the employer and to the government customer. Applicant’s 
deliberate falsification of his timesheets reflects adversely on his judgment, reliability, 
and trustworthiness. Overall, the record evidence leaves me with questions and doubts 
as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, 
I conclude that Applicant has not mitigated personal conduct security concerns. 
 
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 
 
 Subparagraphs 1.a:   Against 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 eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge