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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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--------------------- )       ISCR Case No. 14-05467
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Applicant for Security Clearance )
Appearances
For Government: Andrew H. Henderson, Esquire, Department Counsel
For Applicant: Ryan C. Nerney, Esquire 
August 24, 2016
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Decision
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MOGUL, Martin H., Administrative Judge:
On June 16, 2015, the Department of Defense (DoD)Office of Hearings issued a
Statement of Reasons (SOR) detailing the security concerns under Guidelines J and E
for Applicant. The action was taken under Executive Order 10865, Safeguarding
Classified Information within Industry (February 20, 1960), as amended; Department of
Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review
Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines
(AG) effective after September 1, 2006. 
 
On July 20, 2015, Applicant replied to the SOR (RSOR) in writing, and he
requested a hearing before an Administrative Judge. The case was assigned to this
Administrative Judge on November 16, 2015. The Defense Office of Hearings and
Appeals (DOHA) issued a notice of hearing on December 9, 2015, and I convened the
hearing as scheduled on January 27, 2016. The Government offered Exhibits 1 through
5, which were received without objection. Applicant testified on his own behalf and
submitted Exhibit A, which was also entered into evidence without objection. One
additional witness testified on behalf of Applicant. DOHA received the transcript of the
hearing (Tr) on February 4, 2016. I granted Applicant’s request to keep the record open,
and the record remained open until February 5, 2016, to allow Applicant to submit
additional documents, but no documents were received.  Based upon a review of the
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pleadings, exhibits, and the testimony of Applicant and the additional witness, eligibility
for access to classified information is denied.
Findings of Fact
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant and his
witness, and upon due consideration of that evidence, I make the following findings of
fact: 
Applicant is 35 years old. He is married, and he has three children. He received
his high school graduate equivalency in 2010. Applicant is employed as an Onsite
Supervisor by a defense contractor, and he seeks a DoD security clearance in
connection with his employment in the defense sector.
Paragraph 1 (Guideline J - Criminal Conduct) 
          The SOR alleges that Applicant has engaged in criminal acts, which create doubt
about his judgement, reliability, and trustworthiness. The SOR alleges that Applicant
was involved in or committed 27 criminal acts or rules violations, which are listed in the
SOR as 1.a. through 1.aa., and take place over a period from 1997 to 2012. 
The allegations included: receiving tickets for violations such as Failure to
Register Vehicle, Parking in a No Parking Zone, Driving Without Insurance, Driving With
an Expired License Plate, and Driving Without a Properly Adjusted Seatbelt. Applicant
was also arrested for several criminal violations, including, but not limited to:
Possession of Marijuana and Drug Paraphernalia, Driving without a Proper Muffler,
Operating a Moving Vehicle with a Suspended License, five instances of Failure to
Appear, and Fugitive Arrest.  He was fined for all of them.  Applicant also was found
Guilty for Pulling a Fire Alarm, and he was sentenced to two years supervised probation
for Stealing, a Felony Classification C. 
During his testimony, Applicant admitted most of the allegations; specifically 1.a
though 1.e., 1.j. through 1.u., 1.w. through 1.x., and 1.aa. (Tr at 42-70.) Applicant could
not recall 1.v.,which was an allegation of an arrest for Failure to Appear in Court 1998,
although Applicant did concede he failed on several occasions to appear in court when
he was required to appear.
Applicant denied SOR allegation 1.f., which was an arrest in 2010 for possession
of marijuana. He testified that his brother actually was arrested, but it was Applicant’s
vehicle so when Applicant’s brother was arrested he used Applicant’s name and social
security number. Applicant claimed that he was not aware of this arrest until he was
questioned by a Government investigator in 2013 in regard to this security clearance
process. (Tr at 62-65.) Applicant could not explain how his brother could impersonate
Applicant without having Applicant’s driver’s license, since that is usually something the
police would check if they stop someone for marijuana possession. (Tr at 91-92.)  
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Applicant denied SOR allegation 1.z., which was an arrest in 1998 for Pulling a
Fire alarm. He testified that another student at the school he was attending claimed he
saw Applicant pull the fire alarm, and even though Applicant contended he did not pull
the alarm, it was the account of the witness against Applicant. He testified that he went
to court and he was advised it was easier to pay the fine than to contest the charges so
he plead guilty, even though he did not commit the act. His mother paid a fine. (Tr at 44-
46.)  In Applicant’s RSOR, he wrote, “in high school, a classmate bet me that I would
not pull the fire alarm. Foolishly, I wanted to win the bet so I did pull the alarm. I regret
the decision to this day. As a result, I was mandated and did complete over 300 hours
of community service as punishment for my foolish act.”  At the hearing, Applicant was
asked, but could not provide a reasonable explanation for why he provided one answer
to this allegation on his RSOR, and why he gave a completely different answer during
his testimony. (Tr at 88-91.) 
Finally, during Applicant’s testimony, he testified that he had a Bachelor’s degree
in Business. Upon further questioning, Applicant conceded that he had only attended
approximately six months of business classes at a community college and he did not
have a Bachelor’s degree in Business. (Tr at 93-95.)
   
Paragraph 2 (Guideline E - Personal Conduct)
The SOR alleges in this paragraph that Applicant is ineligible for clearance
because he exhibited conduct involving questionable judgement, lack of candor,
dishonesty or unwillingness to comply with rules and regulations.
2.a. Applicant executed an Electronic Questionnaires for Investigations
Processing (e-QIP)  on August 15, 2013. The SOR alleges that Applicant falsified
material facts on the e-QIP in response to the questions under “Section 22 - Police
Record: In the past seven (7) years have you been issued a summons, citation, or ticket
to appear in court in a criminal proceeding against you?” Also, “In the past seven (7)
years have you been arrested by a police officer, sheriff, marshal or any type of law
enforcement official?” Applicant answered “Yes,” but he failed to disclose the
information listed on the SOR as 1.f., 1.h., 1.i., and 1.k., above, which included arrests
and convictions in 2010, and three in 2008. 
Applicant testified that he used a background check that had been created for
him, and a police officer, who is a family friend, ran an additional background check.
Applicant claimed to have used these to try to help him remember and answer all the e-
QIP questions correctly. Applicant claimed that if he did not properly include all of the
information he should have it was because it was not listed on these background
investigation reports, and he did not remember the events. He testified that he did not
include the marijuana arrest listed as 1.f., because that was his brother’s arrest of which
he was not aware when he complected the e-QIP. (Tr at 70-73.) 
2.b. The SOR alleges that Applicant falsified material facts on the e-QIP in
response to the question under “Section 22 - Police Record “Have you EVER been
charged with a felony offense?” (Emphasis in original.) Applicant answered , “No,” and
he failed to disclose the information listed on the SOR as 1.u., above, that he was
arrested in 1998, charged and found guilty of Stealing, a Felony Classification C.  
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Applicant testified that he had always been under the impression that he had
never been arrested or charged with a felony. (Tr at 73-75.) 
2.c. The SOR alleges that Applicant falsified material facts on the e-QIP in
response to the question under “Section 22 - Police Record, “Have you EVER been
charged with an offense involving alcohol or drugs?” (Emphasis in original.) Applicant
answered,”No,” he had never been involved with a charge involving alcohol or drugs,
when in fact he failed to disclose the information listed on the SOR as 1.f., and 1.o.,
above, which included arrests in 2010 and 2003 for possession of marijuana.  
At the hearing, Applicant testified that he did not remember the 2003 marijuana
arrest listed on the SOR as 1.o., and, as he had already testified, he claimed to not
have been aware of the 2010 marijuana arrest that was allegedly committed by
Applicant’s brother,  until he met with an investigator in 2013. 
Mitigation
As reviewed above, one witness testified for Applicant. The witness has known
Applicant since 1996, and for the last three years he has been Applicant’s supervisor.
He described Applicant as being an “outstanding” performer and a “very hard worker,
reliable” and someone with whom he has “never had any problems.” the witness was
aware of the allegations against Applicant’s in the SOR, including misrepresentations on
his e-QIP, and he stated that these allegations do not change his opinion of Applicant.
(Tr at 21-39.) Applicant also submitted two positive character letters, one from the
witness who testified and one from an additional individual. (Exhibit A.) 
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful 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 over-arching
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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
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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 as to obtaining 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 the applicant may deliberately or inadvertently fail to protect or
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.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Paragraph 1 (Guideline J - Criminal Conduct)
The Government alleged that Applicant engaged in 27 different acts of criminal
conduct, from 1997 until at least 2012. Applicant did admit most of the SOR allegation
during his testimony. However, he denied two significant allegations. While Applicant
denied the pulling of the fire alarm during his testimony, he admitted it when he was
answering the SOR. I find that Applicant’s story that his brother was the actual person
who was arrested and charged with marijuana possession does not have the ring of
truth. Applicant simply did not provide any reasonable explanation for how his brother
could impersonate him with the police if he did not have Applicant’s driver’s license. 
I find that ¶ 31(a), “a single serious crime or multiple lesser offenses,” applies in
this case. ¶ 31(c), “allegations or admissions of criminal conduct, regardless of whether
the person was formally charged,” is also applicable to this case. Because Applicant’s
conduct was carried out over more than 15 years and as recently as 2012, and because
Applicant has failed to honestly admit to all of the arrests, convictions and fines, I do not
find any Mitigating Condition under ¶ 32 is applicable. Paragraph 1, Guideline J is found
against Applicant.
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Paragraph 2 (Guideline E - Personal Conduct)
The security concern relating to the guideline for Personal Conduct is set out in
AG ¶ 15:  
      Conduct involving questionable judgement, 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 Government alleges in this paragraph that Applicant is ineligible for clearance
because he engaged in conduct that exhibited questionable judgement, lack of candor,
dishonesty, and unwillingness to comply with rules and regulations. The record is clear
that Applicant did not furnish complete answers in his e-QIP. To make a determination
as to his credibility regarding his allegation that he simply forgot to include some of his
arrests, I have considered several factors. These include the fact that Applicant supplied
a completely different version of his fire alarm incident on his RSOR than he did during
his testimony. Applicant also provided a story about the drug arrest of his brother that
simply does not ring true. Finally, I considered Applicant’s initial testimony that he had a
Bachelor’s degree in business, which he later recanted because he had only attended
six months of community college.  
In reviewing the disqualifying conditions under Guideline E, I conclude that
disqualifying condition ¶ 16(a) is applicable; there was “deliberate omission,
concealment, or falsification of relevant facts from [a] personnel security questionnaire”
by Applicant. I also find that Applicant’s conduct supports Disqualifying Condition ¶16(d)
“a whole-person assessment of questionable judgement, untrustworthiness,
unreliability” under this guideline. I do not find any mitigating condition under ¶ 17 is
applicable.  I, therefore, resolve Guideline E against Applicant.
Whole-Person Concept
Under the whole-person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances. The 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.
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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.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why the Disqualifying Conditions apply and the Mitigating Conditions do not
apply, I find that the record evidence leaves me with significant questions and doubts as
to Applicant’s eligibility and suitability for a security clearance under the whole-person
concept. For all these reasons, I conclude Applicant has not mitigated the 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 J: AGAINST APPLICANT
Subparagraph 1.a.-1.aa.: Against Applicant
Paragraph 2, Guideline E: AGAINST  APPLICANT
Subparagraph 2.a.-2.c.: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
Martin H. Mogul
Administrative Judge