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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 15-01545 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Rhett Petcher, Esq., Department Counsel 
For Applicant: Alan V. Edmunds, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines J (Criminal 
Conduct) and E (Personal Conduct). Eligibility for access to classified information is 
denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (SCA) on June 12, 2014. On 
October 15, 2015, the Department of Defense Consolidated Adjudications Facility (DOD 
CAF) sent him a Statement of Reasons (SOR) alleging security concerns under 
Guidelines J and 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 November 5, 2015, and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on 
December 28, 2015, and the case was assigned to me on February 17, 2016. On 
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February 26, 2016, the Defense Office of Hearings and Appeals (DOHA) notified 
Applicant that the hearing was scheduled for March 22, 2016. I convened the hearing as 
scheduled. Government Exhibits (GX) 1 through 6 were admitted in evidence without 
objection. Applicant testified and submitted Applicant’s Exhibits (AX) A through E, which 
were admitted without objection. DOHA received the transcript (Tr.) on March 30, 2016. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted all the allegations. His explanations 
in his answer and at the hearing reflect that he admitted SOR ¶¶ 2.a-2.f because he 
answered questions on his SCA in the negative as alleged, but he denied intentional 
falsification of his SCA. I have treated his answers to SOR ¶¶ 2.a-2.f as denials. His 
admissions to SOR ¶¶ 1.a-1.c are incorporated in my findings of fact.  
 
 Applicant is a 42-year-old information-technology systems analyst and project 
manager engineer employed by a federal contractor since February 2015. He has 
worked for federal contractors since October 2010. He was self-employed, operating a 
janitorial service, from October 1999 to December 2009. He worked as a computer 
technician for a state government from December 2009 until October 2010. (GX 1 at 13-
15; AX A.) He has never held a security clearance.  
 
 Applicant attended various community colleges, technical colleges, and 
universities from 1993 to 2016. (AX B.) He received an associate’s degree in computer 
and information science in March 2006 and a bachelor’s degree in computer and 
information science in October 2008. (AX C and D.) He began a master’s degree 
program in June 2015. (AX E; Tr. 19.) He paid for his associate’s and bachelor’s 
degrees with student loans totaling about $18,000, his income from the janitorial 
service, and a part-time job on an industrial assembly line. His student loan payments 
are about $240 per month, and they are current. His employer is paying for his master’s 
degree program. (GX 3 at 5; Tr. 24-25.) 
 
 Applicant has never married. He has resided with a cohabitant since October 
2006. He has a 12-year-old daughter from another relationship, for whom he pays child 
support of $196 per month. (GX 3 at 4-5.) 
 
 In November 1993, Applicant was charged with felony possession of a stolen 
firearm. During a personal subject interview (PSI) in December 2010, Applicant told the 
investigator that he drove his car to a convenience store, left the engine running while 
he went into the store, and was grabbed by two men with a pistol. He wrestled away 
from his assailants, ran away, and hid in some bushes, leaving his car at the store with 
the engine running. He later returned to the store, where the police stopped him and 
told them that a stolen pistol was found in his car. The store owner told the police that 
Applicant was a victim of an attempted robbery. Applicant was charged with possession 
of a stolen pistol and released on his own recognizance. In January 1994, he pleaded 
not guilty and the charge was dismissed. (GX 3 at 1.) 
 
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In July 1995, Applicant was charged with felony robbery by use of force. During 
the December 2010 PSI, he told the investigator that he returned to his home where he, 
his cohabitant, and her two children lived, and found another man in the children’s 
bedroom. The man said he would not leave until Applicant’s cohabitant returned to the 
home. They argued, went outside, and fought. The man threw the keys to the house on 
the ground and left. A short time later, the police arrived and charged Applicant with 
robbery. Applicant hired an attorney, and the charges were dismissed in September 
1995. (GX 3 at 2.) 
 
In April 2000, Applicant was charged with distribution of cocaine base, a felony, 
and possession of cocaine base with intent to distribute, a felony. He pleaded guilty to 
distribution of cocaine base, and the charge of possession with intent to distribute was 
dismissed. In September 2000, he was sentenced to imprisonment for 70 months 
followed by 5 years of supervised release. He was imprisoned from September 2000 to 
January 2002 and attended boot camp until June 2002, when he was released to a 
halfway house. He was released from the halfway house in January 2003 but remained 
on probation. (GX 3 at 4; Tr. 45-48.) He received counseling during boot camp. (Tr. 37.) 
In January 2008, he was discharged from supervision, and the proceedings in the case 
were terminated. (GX 5; GX 6.)  
 
 Applicant submitted an SCA in October 2010. He answered “No” to the question, 
“Have you EVER1 been charged with any felony offense?” He did not disclose his three 
felony arrests. He answered “No” to the question, “Have you EVER been charged with a 
firearms or explosives offense?” He did not disclose the November 1993 charge. He 
answered “No” to the question, “Have you EVER been charged with any offense(s) 
related to alcohol or drugs?” He did not disclose the drug-related charges in April 2000 
and his conviction and jail sentence in September 2000. (GX 1 at 29-30.)  
 
 The October 2010 SCA was Applicant’s first experience with the security-
clearance process, but he was 36 years old and well educated, having earned an 
associate’s degree and a bachelor’s degree. He had been operating a cleaning service 
franchise since his release from prison. In addition to omitting his criminal record, he 
omitted several other items from his SCA. He failed to list his daughter, his supervisor at 
his current job, his supervisor at a former job, and a job with a temporary service 
agency that he held while in school. He admitted these omissions during his December 
2010 PSI, and he attributed them to being rushed to complete the SCA by his employer. 
 
 During the December 2010 PSI, the investigator questioned Applicant 
extensively about his arrests in 1993, 1995, and 2000, and Applicant provided detailed 
information about them, as indicated above. He told the investigator he had never 
possessed, used, sold, or distributed drugs. He told the investigator that he believed the 
evidence against him was seized in a “bad bust,” but that his lawyer told him that the 
authorities would “mess” with his then cohabitant, who was a convicted felon on 
                                                          
1 “EVER” is capitalized in the SCA in each of the questions at issue in this case.  
 
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probation, if he did not plead guilty.2 (GX 3 at 3-4.) The investigator did not specifically 
ask him why he failed to disclose his arrests and conviction in his October 2010 SCA. At 
the end of the PSI summary, the investigator commented, “All other information on the 
subject’s case papers was reviewed and the subject had no further additions or 
corrections.” (GX 3 at 6.) 
 
 When Applicant submitted his most recent SCA in June 2014, he again 
answered “No” to the same three questions related to felony charges, firearms or 
explosive charges, or drug-related charges. (GX 2 at 24.) He again did not disclose his 
previous arrests and the September 2000 conviction. 
 
 In a second PSI in October 2014, Applicant told the investigator he had difficulty 
with his second SCA because much of the information about previous residences and 
employments was already entered from his previous SCA and the computer would not 
accept his changes. He told the investigator that he tried to list his daughter, but the 
computer kept deleting the information. He told the investigator about the 1993 charges, 
the 1995 charges, and his conviction in 2000. He stated that he did not list his criminal 
record because he believed that he was not required to disclose arrests, charges, or 
convictions that were more than seven years old. (GX 4 at 2-3; Answer to SOR; Tr. 31.) 
 
At the hearing, Applicant testified that he was not trying to conceal information or 
mislead security investigators. (Tr. 32.) He did not attribute his failure to disclose his 
criminal record to problems with the computer. Instead, he testified that he misread the 
questions. He admitted that when a word is written in capital letters, it means that the 
writer intends to “yell at you.” (Tr. 49.) He testified that he could not remember if he 
copied his answers in the 2010 SCA into his 2014 SCA or if he completed his 2014 SCA 
“from scratch.” (Tr. 53.) He testified that, when he completed his 2014 SCA, he believed 
that the Government already knew about his criminal record, but he adhered to his 
contention that he misread the questions. (Tr. 55.)  
 
 Applicant no longer associates with the persons who were involved in his criminal 
activity. He earns between $71,500 and $100,000 per year, depending on the amount of 
overtime he works. He has about $20,000 in his checking account and investments of 
about $50,000. He is current on his federal and state taxes. (Tr. 36-37.) 
 
 Applicant and his cohabitant were baptized in September 2013, and they 
regularly attend church. He is a pastor’s aide and also provides security for the church’s 
cameras and computers. (Tr. 29.) His pastor submitted a letter attesting to his 
character. He describes Applicant as a reliable, dedicated and hardworking individual. 
He states” [Applicant’s] character is ground in allegiance and centered on respect for all 
individuals. [Applicant] understands the importance of allegiance, duty, and service.” 
(AX A.) 
                                                          
2 At the hearing, Applicant did not repeat his exculpatory account of the arrest and conviction in 2000. 
Thus, no issue of collateral estoppel arose. See ISCR Case No. 11-00180 (App. Bd. Jun. 19, 2012); ISCR 
Case No. 04-05712 (App. Bd. Oct. 31, 2006); ISCR Case No. 95-0817 (App. Bd. Feb. 21, 1997). 
 
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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.   
 
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, 
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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. 
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 J, Criminal Conduct 
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 record of arrests, felony conviction, and jail sentence 
establish three disqualifying conditions under this guideline: 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”) and AG ¶ 31(f) (“conviction in a Federal or State court, 
including a court-martial of a crime, sentenced to imprisonment for a term exceeding 
one year and incarcerated as a result of that sentence for not less than a year”).  
The following mitigating conditions are potentially relevant: 
 
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;  
 
AG ¶ 32(c): evidence that the person did not commit the offense; and 
 
AG ¶ 32(d): there is evidence of successful rehabilitation; including but not 
limited to the passage of time without recurrence of criminal activity, 
remorse or restitution, job training or higher education, good employment 
record, or constructive community involvement.  
AG ¶ 32(e) provides that the disqualifying condition in AG ¶ 31(f) may not be 
mitigated unless, where meritorious circumstances exist, a waiver is granted by certain 
enumerated senior officials or their designees. AG ¶ 32(e) was based on the Smith 
Amendment (10 U.S.C. § 986). However, the Smith Amendment was replaced by the 
Bond Amendment in 2008 (50 U.S.C. § 435b, Sec. 3002). The Bond Amendment 
continued the disqualification and waiver provisions for persons who were sentenced to 
and served imprisonment for more than a year. However, AG ¶ 32(e) now applies only 
to eligibility for special access programs, restricted data, and sensitive compartmented 
information, which are not at issue in this case. 
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 AG ¶ 32(a) is not established. Applicant’s last criminal conviction was in 
September 2000, almost 16 years ago. However, his falsifications of his SCAs in 2010 
and 2014 were recent. A deliberately false answer on a security clearance application is 
a felony under 10 U.S.C. § 1001 and a serious crime within the meaning of Guideline J. 
Although Applicant’s falsifications were not alleged in the SOR as criminal conduct, 
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 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). I have considered the criminal nature 
of Applicant’s falsifications for these limited purposes. 
 
 AG ¶ 32(c) is established for the criminal conduct alleged in SOR ¶¶ 1.a and 1.b. 
Applicant denied committing these offenses. His descriptions of the two incidents are 
bizarre, but they not contradicted by any evidence of record, and his denials are 
corroborated by the dismissal of the charges in both cases. 
 
 AG ¶ 32(d) is not established. Applicant’s felony conviction was 16 years ago. He 
has earned an associate’s degree and a bachelor’s degree, and he is currently in a 
master’s degree program. He has been gainfully employed since his release from 
custody. He is in a committed relationship with his cohabitant and has been active in his 
church since September 2013. However, he falsified his SCAs in October 2010 and 
June 2014. In his December 2010 PSI, he tried to recant his guilty plea and blame it on 
bad legal advice. His lack of candor undermines the other evidence of rehabilitation.  
 
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. Of special interest is any failure to provide truthful 
and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process.   
 The relevant disqualifying condition in this case is AG ¶ 16(a): “deliberate 
omission, concealment, or falsification of relevant facts from any personnel security 
questionnaire . . . .” When a falsification allegation is controverted, as in this case, the 
Government has the burden of proving it. An omission, standing alone, does not prove 
falsification. An administrative judge must consider the record evidence as a whole to 
determine an applicant’s state of mind at the time of the omission. See ISCR Case No. 
03-09483 at 4 (App. Bd. Nov. 17, 2004). An applicant’s experience and level of 
education are relevant to determining whether a failure to disclose relevant information 
on a security clearance application was deliberate. ISCR Case No. 08-05637 (App. Bd. 
Sep. 9, 2010). 
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 AG ¶ 16(a) is established for both SCAs. When Applicant submitted his first SCA, 
he was a 36-year-old college graduate. He admitted at the hearing that the 
capitalization of “EVER” in each question “yells” at the reader. Even after being 
questioned at length about his criminal record in the December 2010 PSI, and 
understanding that his conduct raised serious security concerns, he again answered 
“No” to all the relevant questions about his criminal history in his June 2014 SCA, and 
he gave the same implausible excuse—that he had misread the questions.  
 
 The following mitigating conditions are potentially relevant: 
 
AG ¶ 17(a): the individual made prompt, good-faith efforts to correct the 
omission, concealment, or falsification before being confronted with the 
facts; and 
 
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(a) is not established. Applicant made no effort to correct his omissions 
from his October 2010 SCA even after he was confronted with his criminal record. To 
the contrary, he attempted to explain away his September 2000 conviction, and he 
repeated the same omissions in his June 2014 SCA. 
 
 AG ¶ 17(c) is not established. Falsification of an SCA is not minor. It is a felony 
and “strikes at the heart of the security clearance process.” ISCR Case No. 09-01652 
(App .Bd. Aug. 8, 2011.) Applicant’s falsifications were recent and did not occur under 
unique circumstances making them unlikely to recur. 
 
 An act of falsification has security significance independent of the underlying 
conduct. See ISCR Case No. 01-19278 at 7-8 (App. Bd. Apr. 22, 2003). The mitigation 
of the underlying conduct has little bearing on the security significance of the 
falsification, particularly where there are multiple falsifications. ISCR Case No. 08-11944 
at 3 (App. Bd. Aug 15, 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):  
 
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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.  
 
 I have incorporated my comments under Guidelines J and E in my whole-person 
analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but 
some warrant additional comment. 
 
 Applicant has made significant strides in turning his life around. He is now a well-
educated, talented employee. He is devoted to his cohabitant and his daughter. He is 
an active and respected member of his church. However, he has not demonstrated the 
candor required of persons entrusted with classified information. His lack of candor 
undermines the substantial evidence of rehabilitation submitted at the hearing. 
 
 After weighing the disqualifying and mitigating conditions under Guidelines J and 
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 criminal conduct and 
personal conduct. Accordingly, I conclude he has not carried his burden of showing that 
it is clearly consistent with the national interest to grant him eligibility for access to 
classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline J (Criminal Conduct):  AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.b:    For Applicant 
 
  Subparagraph 1.c:     Against Applicant 
 
 Paragraph 2, Guideline E (Personal Conduct):  AGAINST APPLICANT 
 
  Subparagraphs 2.a-2.f:    Against Applicant 
 
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Conclusion 
 
 I conclude that 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. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge