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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 14-04324 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Carroll J. Connelley, Esq., Department Counsel 
For Applicant: Greg D. McCormack, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guideline E (Personal 
Conduct). Eligibility for access to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on April 18, 2013. On 
October 28, 2014, the Department of Defense Consolidated Adjudications Facility (DOD 
CAF) sent him a Statement of Reasons (SOR) alleging security concerns under 
Guideline E. The DOD CAF 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 answered the SOR on December 8, 2014, and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on June 30, 
2015, and the case was assigned to me on July 13, 2015. It was tentatively scheduled 
for the week of August 24, 2015, but was postponed when Applicant retained counsel. It 
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was reassigned to another administrative judge on September 29, 2015, and then 
reassigned back to me on November 24, 2015, due to workload and scheduling 
difficulties. On November 30, 2015, the Defense Office of Hearings and Appeals 
(DOHA) notified Applicant that the hearing was scheduled for December 15, 2015. I 
convened the hearing as scheduled. Government Exhibits (GX) 1 through 9 were 
admitted in evidence without objection. Applicant testified and submitted Applicant’s 
Exhibits (AX) A through D, which were admitted without objection. DOHA received the 
transcript (Tr.) on December 23, 2015. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted all the allegations. His admissions 
in his answer and at the hearing are incorporated in my findings of fact.  
 
 Applicant is a 46-year-old director of operations for a defense contractor. He has 
worked for his current employer since December 2012. He has held a security 
clearance since January 1998. 
 
 Applicant attended high school from September 1984 to May 1987. While in high 
school, he and a friend stole car stereos and radar detectors, sold them, and used the 
money to buy cocaine and marijuana. He and his friend also stole a new luxury 
automobile and stripped it for parts to rebuild his friend’s older automobile. He was not 
arrested for these incidents. (Tr. 28.)  
 
 Applicant enlisted in the U.S. Army in July 1987. He did not disclose his criminal 
conduct and drug involvement when he enlisted. In a sworn statement submitted to a 
security investigator in September 1998, he stated that his drug use continued until May 
1991. (GX 8 at 5.) At the hearing, he testified that he did not believe that his drug use 
continued after he enlisted. (Tr. 42-43.) 
 
Applicant served on active duty in the U.S. Army until July 1989, serving primarily 
with Special Forces units. He deployed to Iraq for Operation Desert Shield and Desert 
Storm. (AX C at 2; Tr. 28.) He was honorably discharged, served in the Army National 
Guard (ARNG) for three months, and then returned to active duty in October 1989.  
 
In August 1991, Applicant was charged with raping a fellow service member, 
which whom he had a romantic relationship, grabbing her by the throat, and threatening 
to kill her. (GX 8 at 3-4.) Applicant admitted having sexual intercourse with her, but 
contended that it was consensual. A formal pretrial hearing was conducted, during 
which the alleged victim recanted her accusation and admitted that it was false. The 
charges were dismissed. (GX 7.)  
 
Applicant testified that he and the woman who accused him of rape were 
engaged to be married. (Tr. 31.) However, during a personal subject interview (PSI) with 
a security investigator in June 2013, Applicant told the investigator that his accuser was 
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angry because she found out that he was dating another woman at the same time. (GX 
2 at 4.) 
 
Applicant also was charged with another assault and battery and threatening the 
same woman about a week after the alleged rape. These charges also were dismissed. 
(GX 6.) At the hearing, Applicant testified that he had no recollection of a second 
incident. (Tr. 48.) 
 
Applicant was honorably discharged in August 1997, and served in the ARNG for 
three years. He was honorably discharged from the ARNG as a staff sergeant (E-6) in 
August 2000. During his active duty and ARNG service, Applicant was awarded the 
Army Commendation Medal (2 awards), Army Achievement Medal (5 awards), the Army 
Good Conduct Medal (3 awards), numerous service medals and badges, numerous 
certificates of achievement, and consistently outstanding performance evaluations. (AX 
C.) 
 
Applicant disclosed the rape charge when he submitted a security clearance 
application in July 1998. (GX 9 at 11.) He disclosed his criminal activity in high school 
and the rape charge in a sworn statement to a security investigator in September 1998. 
(GX 8 at 2-4; Tr. 26-27.) 
 
 Applicant worked for defense contractors from June 1998 to June 2006, when he 
was fired following allegations of sexual harassment and inappropriate behavior in the 
workplace. The accusations arose from Applicant’s romantic relationship with a 
coworker. During a personal subject interview (PSI) with a security investigator in June 
2013, Applicant stated that he and a coworker had been flirting for about six years. On a 
“few occasions,” they kissed and hugged each other in various offices. (GX 2 at 2.) 
Applicant testified that they never had sexual intercourse. (Tr. 50.) Applicant testified 
that he was angry at his coworker and felt betrayed when she disclosed their 
relationship. (Tr. 55.) After learning about with his coworker’s disclosure, he admitted 
the relationship to his supervisors and disclosed it to his wife. 
 
 Applicant was unemployed from June to August 2006. He worked for a defense 
contractor from September 2006 to September 2007. He worked for a non-DOD federal 
contractor from September 2007 to October 2011, when he was fired for sending an 
inappropriate text message to a female government employee who was collocated with 
Applicant’s employer. After Applicant and the woman exchanged text messages for two 
days about her application for another job, the woman sent him a text message telling 
him how provocatively she intended to dress for an interview. He responded with a text 
message saying, “[M]eet me in my office so that I can have my way with you.” (Answer 
to SOR.) He admitted at the hearing that the purpose of his message was to invite “a 
little show and tell.” (Tr. 57-58.) The woman printed the text message and left it on the 
printer, where someone else read it and reported it. (GX 2 at 2; Tr. 61.) 
 
 Applicant was unemployed from October 2011 to June 2012. He worked for a 
non-federal employer for six months and then began his current job in January 2013. He 
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disclosed his termination in 2011 to his current employer, but he did not disclose the 
specific facts on which it was based. 
 
 Applicant married in July 1993 and divorced in August 1997. He married his 
current spouse in July 2001. He and his current spouse have a 12-year-old son and a 
10-year-old daughter. 
 
 Applicant began taking online college courses in 2006. He received a bachelor’s 
degree in program management in 2014. (Tr. 32.) 
 
 Several colleagues, former colleagues, supervisors, and family members 
submitted letters in support of Applicant. All were familiar with the allegations in the 
SOR. 
 
 A former colleague and fellow soldier, who has known Applicant for more than 20 
years, considers Applicant competent, hardworking, devoted to his family, and 
trustworthy. (AX D at 1.) The president of the company by whom Applicant is employed 
considers him honest, trustworthy, sincere, and hardworking. The president states that 
he was aware of Applicant’s termination in 2011, spoke to his former supervisors, and 
received strong positive recommendations from them. (AX D at 2-3.) A former 
supervisor was shocked when he learned that Applicant’s security clearance was in 
jeopardy, but he believes that Applicant has atoned for his mistakes, is remorseful, and 
deserves to retain his security clearance. (AX D at 4-6.) 
 
 Applicant’s two older brothers also submitted statements supporting Applicant. 
They both consider him hardworking, trustworthy, compassionate, and devoted to his 
family. (AX D at 7-8.)  
 
 Applicant testified that he now spends more time with his wife, taking walks 
together and engaging in activities with their children. They are taking martial arts 
classes as a family. (Tr. 36.) Applicant’s spouse submitted a statement on Applicant’s 
behalf, stating that she was “very disappointed” with his behavior that caused him to be 
fired twice. She states that they have received counseling, Applicant has received 
pastoral counseling from a priest, and they are strengthening their relationship one day 
at a time. (AX D at 9.) 
 
 Applicant and his wife are volunteer coaches for youth sports. (Tr. 36.) Applicant 
also volunteers at nearby military installations to assist military veterans in making the 
transition to civilian life, helping them with interviewing techniques, connecting them with 
job fairs, and mentoring them on rewriting their resumes. (Tr. 38.) 
 
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 
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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.   
 
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).  
 
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. 
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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).  
 
Analysis 
 
Guideline E, Personal Conduct 
 
 The SOR alleges that, in 1986 or 1987, Applicant stole car stereos and radar 
detectors, sold them to buy cocaine, (SOR ¶ 1.a); and stole a luxury automobile and 
stripped it (SOR ¶¶ 1.a and 1.b). It alleges that he was accused of raping a fellow 
soldier in August 1991 (SOR ¶ 1.c). Finally, it alleges that Applicant was fired from two 
jobs, in June 2006 and October 2011, for inappropriate behavior with female coworkers 
(SOR ¶¶ 1.d and 1.e). 
 
 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 rape allegation was investigated at a 
formal hearing, during which the investigating officer had an opportunity to evaluate the 
demeanor and credibility of the participants. His accuser admitted that she made the 
accusation because she was angry. Her accusation was determined to be false. I have 
concluded that SOR ¶ 1.c is not supported by substantial evidence, and I have resolved 
it in Applicant’s favor.1 However, the remaining allegations are supported by substantial 
evidence and are sufficient to raise 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  
                                                          
1 If the rape allegation had been alleged under Guideline J, Criminal Conduct, I would conclude that it was 
mitigated under AG ¶ 32(e) (“evidence that the person did not commit the offense”).  
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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 
 
AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress. 
 
 AG ¶ 17(c) is established for the conduct alleged in SOR ¶¶ 1.a and 1.b. 
Applicant’s offenses were not minor, but they were committed almost 30 years ago, 
when he was a high school student. I conclude that they are not recent and are 
mitigated by the passage of time without recurrence of similar conduct. This mitigating 
condition is not established for the conduct alleged in SOR ¶¶ 1.d and 1.e. 
 
 AG ¶ 17(d) is partially established for SOR ¶¶ 1.d and 1.e, because Applicant 
has received marital and pastoral counseling. However, I am not convinced that similar 
behavior is unlikely to recur. Applicant has a long history of deceptive behavior. He did 
not disclose his criminal conduct or drug use when he enlisted in the Army. He 
continued his drug use after his enlistment, and he was vague when he responded to 
questions at the hearing about his continued drug use while on active duty. The rape 
allegation in 1991 was unfounded, but it was triggered by Applicant’s deceptive 
behavior with his purported fiancée, by not revealing that he was dating another woman 
at the same time. He engaged in a six-year relationship with a coworker that began 
around 2000 and was not voluntarily terminated. It ended only after it was discovered in 
2006 and he was fired. He felt betrayed by the woman for revealing the affair. The 
incident in 2011 occurred after two days of texting that ended when he invited the 
woman to his office for “a little show and tell.” Applicant did not voluntarily terminate this 
relationship; it also ended when it was discovered. In his answer to the SOR, Applicant 
admitted that he did not fully disclose the facts underlying his termination in 2001 to his 
current employer.2 
                                                          
2 Applicant’s lack of candor when he enlisted in the Army and when he applied for his current job were not 
alleged in the SOR. Conduct not alleged in the SOR may be considered to assess an applicant=s 
credibility; to decide whether a particular adjudicative guideline is applicable; to evaluate evidence of 
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 AG ¶ 17(e) is established for the conduct alleged in SOR ¶ 1.d. It is not 
established for the conduct alleged in SOR ¶ 1.e, because Applicant has been 
deliberately vague about the specific facts that led to his termination in 2011.  
 
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.  
 
 I have incorporated my comments under Guideline E in my whole-person 
analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but 
some warrant additional comment. 
 
 Applicant had a distinguished military career, including service in combat. He has 
earned a reputation as a talented, hardworking contractor employee. He has held a 
security clearance for many years, apparently without any security violations. He was 
remorseful at the hearing, but at times his testimony was deliberately vague. He 
dissembled about whether he used drugs on active duty. He felt betrayed when his 
coworker disclosed their relationship in 2006. He disclosed to his current employer that 
he had been terminated from a previous job, but did not disclose the underlying facts. 
 
 “Once a concern arises regarding an Applicant’s security clearance eligibility, 
there is a strong presumption against the grant or maintenance of a security clearance.” 
ISCR Case No. 09-01652 at 3 (App. Bd. Aug 8, 2011), citing Dorfmont v. Brown, 913 
F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After weighing the 
disqualifying and mitigating conditions under Guideline E, and evaluating all the 
evidence in the context of the whole person, I conclude Applicant has not mitigated the 
security concerns raised by his personal conduct. Accordingly, I conclude he has not 
                                                                                                                                                                                           
extenuation, mitigation, or changed circumstances; to consider whether an applicant has demonstrated 
successful rehabilitation; or as part of a whole-person analysis. ISCR Case No. 03-20327 at 4 (App. Bd. 
Oct. 26, 2006) (citations omitted). 
 
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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):  AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.c:    For Applicant 
 
  Subparagraphs 1.d-1.e:    Against Applicant 
 
Conclusion 
 
 I conclude that it is not clearly consistent with the national interest to continue 
Applicant’s eligibility for a security clearance. Eligibility for access to classified 
information is denied. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge