1 
 
                                                              
                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
[Name Redacted]  )  ISCR Case No. 14-06221 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Andre Gregorian, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
On February 20, 2015, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns under Guideline E, Personal 
Conduct. 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) 
implemented within DOD on September 1, 2006.  
  
 On March 31, 2015, Applicant answered the SOR and requested a hearing 
before an administrative judge from the Defense Office of Hearings and Appeals 
(DOHA). On January 4, 2016, Department Counsel was ready to proceed. On March 3, 
2016, the case was assigned to another administrative judge who issued a Notice of 
Hearing scheduling the hearing on May 4, 2016.  Applicant did not appear at this 
hearing. Applicant was granted another opportunity to schedule a hearing as a result of 
a scheduling misunderstanding between Applicant and his previously retained counsel. 
The case was transferred to me and a Notice of Hearing was issued on June 9, 2016, 
scheduling the hearing for June 22, 2016. The hearing was held on that date. DOHA 
received the transcript on June 29, 2016.  Based upon a review of the case file, 
2 
 
pleadings, exhibits, and testimony, eligibility for access to classified information is 
denied. 
 
Findings of Fact 
   
Applicant is a 44-year-old employee of a DOD contractor. He has worked for the 
DOD contractor since December 2014. He has held a security clearance since 1995. 
For over 20 years, he has worked for various contractors supporting several 
government agencies. He is a high school graduate and has some college credits. He is 
married and has a son, age 22. (Tr. 19, Gov 1; Gov 3)  Applicant denies the allegations 
in the SOR. (Answer to SOR) 
 
Applicant worked full-time for Contractor A since 2007. His hours were Monday 
through Friday from 3pm-11pm. (Tr. 20-22).  In September 2012, Applicant obtained a 
second full-time job with Contractor B. His goal was to buy a home. His work hours at 
Contractor B were from 6:30 am to 2:30 pm from Monday through Friday. The locations 
of Contractor A and Contractor B were about 20 minutes from each other. Applicant 
testified that he did not get much sleep, but he had a specific goal in mind. In July 2013, 
Applicant and his wife purchased a home. (Tr. 22-23, 26-31) 
 
In September 2013, Contractor A discovered Applicant falsified his time cards. 
Specifically, Applicant went out of town for a long weekend. He left town without  
completing his time report. He was contacted by management on a Friday and advised 
to complete his time report. He proceeded to complete the time report using the 
internet-based system that his company used. Applicant claims that he completed the 
time card in a rush and indicated that he worked a full week. He did not annotate that he 
was on leave two days, August 28-29, 2013. (Gov 2, Tr. 31-33)  
 
On September 9, 2013, Contractor C, a company who subcontracted with 
Contractor A, sent Contractor A notice that Applicant had over-reported hours on the 
contract and requested Applicant’s immediate removal. Contractor C had compared the 
number of hours Applicant actually worked as recorded by the shift leads to the hours 
recorded by Applicant in the internet-reporting program. They discovered Applicant 
billed for hours he did not work. Contractor C requested Contractor A to review and 
confirm the data and to reimburse Contractor C for hours billed, but not worked under 
the subcontract. Contractor C also informed Contractor A that Applicant’s last day in 
support of the program would be September 12, 2013. (Gov 2 at 2-3) 
 
On September 12, 2013, one of Applicant’s managers from Contractor A 
confronted Applicant with the fact that he claimed he worked full days on August 28-29, 
2013, but he did not show up for work. Applicant said that both entries were a mistake 
and asked if he could change both entries. The manager confronted Applicant with 
three more dates that Applicant had claimed he worked, but did not show up for work, 
July 17, 2013, August 9, 2013, and August 20, 2013. Applicant claimed that these dates 
were inputted incorrectly as well. Between May 14, 2013, to August 31, 2013, 
Contractor A management discovered 23 issues with Applicant’s time card entries. He 
3 
 
charged for 58.5 hours that he did not work. Applicant claims that his computation was 
incorrect, and that it must have been a mistake. (Gov 2) 
 
On September 19, 2013, Contractor A filed an incident report in the Joint 
Personnel Adjudication System (JPAS) indicating Applicant was released from his 
position due to timecard misconduct. (Gov 4)  On September 24, 2013, the facility 
security officer for Contractor B logged into JPAS. She discovered the incident report 
that Contractor A had filed about Applicant. She informed the owners of Contractor B 
about the incident report. The owner contacted Applicant. Applicant informed them there 
had been an issue about his timekeeping when he worked for Contractor A. He said he 
was fired for a timekeeping issue and that his time was off by “30 minutes here or 
there.” Applicant was asked when this happened. Applicant said that he had been 
working for Contractor A before being hired by Contractor B. He took the position with 
Contractor B so he could save money for a house he recently purchased. Applicant was 
advised by upper management that it is against company policy to work for another 
contractor while working for Contractor B and that being fired from a job was a 
reportable offense. Applicant told them he was not aware of these requirements. (Gov 3 
at 2)  
 
  When Applicant was hired by Contractor B, he was required to read the 
Employee Handbook. He signed a document acknowledging receipt of the employee 
handbook on September 17, 2012. In the acknowledgement, Applicant agreed to read 
the entire handbook during his “first three days of employment or within three days of 
receiving it.” The Employee Handbook states that an employee cannot work for another 
company that is a competitor of the company. Specifically: 
 
You were hired and continue in [Contractor B’s] employ with the 
understanding that [Contractor B] is your primary employer and that other 
employment or commercial involvement, which is in conflict with the 
business interests of [Contractor B] is prohibited. Simultaneous 
employment of any kind with a competitor or customer of [Contractor B] is 
expressly prohibited.  
 
If you wish to obtain employment outside of [Contractor B] in an area that 
does not conflict with the company’s business interests, you must obtain 
written acknowledgement from a Company Officer prior to engaging such 
employment. To request this acknowledgement, please submit a written 
request to your [Contractor B] Manager for an acknowledgement of 
outside employment. Your request should state the position you anticipate 
having, your anticipated work schedule, the name and address of the 
prospective employer, the reason for seeking the outside employment, 
and the basis for concluding that the prospective employment will not 
present a conflict of interest. Once your [Contractor B] Manager has 
approved the request, it will then be submitted to the President for 
approval. 
(Gov 3 at 5-10)  
4 
 
On September 30, 2013, Applicant was fired by Contractor B for violating 
company policy of being simultaneously employed by one of Contractor B’s competitors. 
(Gov 5) Applicant did not mention that he worked for Contractor A when he applied for 
his position with Contractor B.   
 
Applicant maintains that his incorrect timecard inputs at Contractor A were a 
mistake. He had the vacation available, but Contractor A would not allow him to change 
his time sheets to indicate vacation hours. He also offered to make up the time. During 
his over 20 years of contracting, he never purposefully made a mistake of that 
magnitude. He never had issues with timecard entries before. (Gov 3 at 11-12; Gov 5) 
 
Applicant states he had no intent to enter his time fraudulently. It was a mistake. 
When the mistake was brought to his attention, Contractor A had already submitted the 
time to Company C, the prime contractor. It was too late for him to correct the error. 
Applicant claims that he had listed his scheduled days off on a calendar shared with all 
employees. Applicant claims he listed the time off on those dates. He also sent out 
calendar reminders to his co-workers that he would not be in the office. Applicant 
regrets this incident occurred and claims it was an isolated incident and will not recur in 
the future. (Response to SOR) 
 
With regard to the allegation in SOR ¶ 1.b, Applicant claims that he was unaware 
of Contractor B’s policy prohibiting their employees from working for their competitors. 
He claims that he has never read or signed any documents that made him aware of this 
policy. He was not aware that Contractor A was a competitor of Contractor B.  Each 
company’s contracts were for different jobs on different contracts for different federal 
agencies. From April 2008 to April 2009, Applicant worked for two different contractors 
in the same building. He was never questioned about it and never thought working on 
contracts for two different agencies would be an issue. He worked two jobs to support 
his family. (Response to SOR) 
 
In past contracting positions, Applicant worked in Afghanistan. He worked in 
Kenya and Tanzania shortly after the bombings of the U.S. embassies, and he worked 
in Yemen after the bombing of the U.S.S. Cole. He voluntarily went places that a lot of 
people did not want to go because the job needed to get done. He unintentionally made 
some mistakes, but he was never given the opportunity to fix anything. He has never 
had a security incident during his over 20 years of possessing a security clearance. (Tr. 
60-61)  
  
Whole-person Factors  
 
 Applicant provided several awards and certificates to show that he is a valued 
employee. (AE B) In May 2014, he received a special award in recognition of 
outstanding performance to his company. This was the company that hired him after his   
termination. (AE B at 3-5) He provided a copy of his performance evaluation from 2010-
2011 with Contractor A. He received the highest ratings in his evaluation. (AE C) 
 
5 
 
 Applicant provided several reference letters. All attest to Applicants’ knowledge, 
work ethic, and commitment to excellence. One senior government official states, “He is 
one of the most technically skilled IT professionals I have worked with in 30 years with 
the [Government Agency].” He goes on to say, “I would trust [Applicant] with any 
position of trust or responsibility in my organization and would hire him for any job within 
my purview.” (AE D at 1) One of Applicant’s former supervisors at Contractor A 
described Applicant as “…one of my star employees who served as a subject matter 
expert and possessed “above and beyond” customer service/support.” He would not 
hesitate to work with Applicant in any capacity and says that the revocation of 
Applicant’s security clearance would be a great blow to the DOD community.” (AE D at 
4) 
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the 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.  
 
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 
6 
 
classified information. Decisions include, by necessity, consideration of the possible risk 
that 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).   
 
The Government’s substantial evidence and Applicant’s own admissions raise 
security concerns under Guideline H, Drug Involvement. The burden shifted to Applicant 
to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. 
(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. September 22, 2005))  
  
Guideline E – Personal Conduct 
 
 The security concern relating to the guideline for Personal Conduct 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 following disqualifying conditions potentially apply to Applicant’s case: 
 
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: 
 
(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; 
(2) Disruptive, violent, or other inappropriate behavior in the workplace; 
(3) A pattern of dishonesty or rule violations; 
7 
 
(4) Evidence of significant misuse of Government or other employer’s time 
or resources; and 
 
 AG ¶ 16(f) violation of a written or recorded commitment made by the 
individual to the employer as a condition of employment.  
 
 
 AG ¶ 16(d)(3) applies because Applicant’s conduct consisted of a pattern of 
dishonesty and rules violations.  Time card fraud is a serious offense which raises 
questions about an individual’s integrity. Applicant’s claim that his failure to indicate that 
he was on leave on his time card report was an unintentional mistake is not plausible. 
Initially, Applicant’s explanation as to why he did not take leave on August 28 and 
August 29 when he was out of town, seemed plausible. However, it does not explain 
Applicant’s absence on the other three days (July 17, 2013, August 9, 2013, and August 
20, 2013) when Applicant did not show for work, but claimed that he worked the full 
days. It also does not explain the days he left early without reporting leave. Between 
May 14, 2013, and August 31, 2013, Applicant claimed 58.5 hours for work that he did 
not do. He has been a government contractor for over 20 years. He is aware that  
employees must provide accurate records of the number of hours worked.  
   
AG ¶ 16(d)(3) and ¶ 16(f) apply with respect to Applicant’s failure to inform 
Contractor B about his employment with Contractor A. Contractor B’s Employee 
Handbook clearly states that its employees are prohibited from working with a 
competitor. In addition, Contractor B requires approval for any additional employment. 
Applicant was provided a copy of the Employee Handbook when he was first hired and 
agreed to read the handbook in three days.  Applicant testified that he was unaware that 
Contractor A was a competitor of Contractor B.  Admittedly this could be true, 
regardless, he had a duty to tell Contractor B that he was employed by Contractor A 
and he did not do so. Applicant’s failure to read Contractor B’s Employee Handbook  
raises further concerns about Applicant’s ability to follow rules and regulations and 
ultimately protect classified information.  For example, if Applicant claimed he did not 
read the requirements and procedures for protecting classified information, it would not 
excuse a security violation.  
 
The Government’s substantial evidence and Applicant’s own admissions raise 
security concerns under Guideline E, Personal Conduct. The burden shifted to Applicant 
to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. 
(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. September 22, 2005))  
 
The following mitigating conditions have the potential to apply under personal conduct: 
 
AG ¶ 16(c) the offense is so minor, or so much time has passed, or the 
behavior is so infrequent, or it happened under such unique 
8 
 
circumstances that it is unlikely to recur and does not cast doubt on the 
individual’s reliability, trustworthiness, or good judgment; and 
 
AG ¶ 16(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. 
 
 None of the mitigating conditions apply.  Falsifying time cards is a serious 
offense that raises questions about an individual’s integrity. Over a three-month period, 
Applicant claimed 58 hours that he did not work. He has not accepted responsibility for 
his actions, claiming it was a mistake. His claims that he was unaware of Contractor B’s 
policies about having second jobs because he never read the Employee Handbook 
raise further questions about Applicant’s ability to follow security policies and 
procedures. Even if Applicant’s conduct was not intentional, his inaccurate time-keeping 
and failure to request permission to have a second job, indicates an inattention to detail 
which raises concerns about his ability to protect classified information.    
   
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 relevant 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.  
 
 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. Applicant is highly respected by 
current and former co-workers.  He is a family man who decided to work two full-time 
jobs to provide for his family in order to purchase a dream home.  He did not disclose 
his full-time job with Contractor A to Contractor B when he was hired and did not read 
the Employee Handbook even though he agreed to read it within three days.  Working 
9 
 
two full-time jobs took a toll on Applicant eventually causing him to miss work. Where he 
went wrong is that he did not take these hours as leave, but completed his time cards 
indicating he worked a full eight-hour day.  Questions remain about Applicant’s 
judgment and ability to protect classified information. 
 
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 2, Guideline E:    AGAINST APPLICANT 
 
  Subparagraph 2.a:    Against Applicant  
  Subparagraph 2.b:    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. 
 
                                                
_________________ 
ERIN C. HOGAN 
Administrative Judge