1 
    DEPARTMENT OF DEFENSE 
 DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
) 
)       ISCR Case No. 14-05922 
) 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Ray T. Blank, Esquire, Department Counsel 
For Applicant: Pro se 
October 18, 2016 
______________ 
Decision 
______________ 
GOLDSTEIN, Jennifer I., Administrative Judge: 
On March 28, 2014, Applicant submitted his Electronic Questionnaires for 
Investigations Processing (e-QIP). On December 4, 2015, the Department of Defense 
Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of 
Reasons (SOR) detailing security concerns under Guidelines J (Criminal Conduct), M 
(Use of Information Technology Systems), and 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) effective within the 
Department of Defense on September 1, 2006.  
Applicant answered the SOR in writing on December 28, 2015 (Answer). 
Applicant requested his case be decided on the written record in lieu of a hearing.  
 
 
 
 
 
2 
A complete copy of the file of relevant material (FORM), consisting of Items 1 to 
7, was provided to Applicant on February 18, 2016. He was given the opportunity to file 
objections and submit material in refutation, extenuation, or mitigation. Applicant 
received the file on February 23, 2016. Applicant filed a Response to the FORM dated 
March 15, 2016 (Response).  
 
Department Counsel submitted seven Items in support of the SOR allegations. 
Item 7 is inadmissible. It will not be considered or cited as evidence in this case. It is the 
summary of an unsworn interview of Applicant conducted by an interviewer from the 
Office of Personnel Management in April 2014. Applicant did not adopt it as his own 
statement, or otherwise certify it to be accurate. Under Directive ¶ E3.1.20, this Report 
of Investigation summary is inadmissible in the absence of an authenticating witness. In 
light of Applicant’s admissions, it is also cumulative. 
 
I received the case assignment on July 19, 2016. Based upon a review of the 
pleadings and exhibits, eligibility for access to classified information is granted. 
 
Findings of Fact 
 
 Applicant is 26 years old. He is a high school graduate. He has been employed 
with a Federal Contractor since February 2014. He has never been married and has no 
children. (Item 4.) 
 
Under Paragraph 1, Criminal Conduct, Applicant admitted that in May 2010 he 
was arrested and charged with Assault Menacing with a Deadly Weapon and Making 
False Report Explosives, both felonies. The charges were reduced to Petty Offence 
Disturbing the Peace in September 2011. He was found guilty and sentenced to 75 
hours of community service, court costs, one year of unsupervised probation, and to 
write letters of apology. In April 2012, the deferred charges were dismissed. This 
criminal activity was cross alleged as a security concern under Guideline E, Personal 
Conduct. (Item 2; Item 5; Item 6; Answer.)  
 
 Under “Section 22-Police Record” on his e-QIP, Applicant disclosed: 
 
I was helping a friend with a photography contest held by a local 
photography group in which the subject needed to involve a mailbox in 
some way. My friend wanted to take a satirical photo by having me wear a 
costume including a scarf and a gasmask. I stood by a mailbox and 
poured powdered sugar into an envelope while my friend took a few 
pictures. My friend and I then continued with our day and had lunch and 
went to develop the photos. We were contacted by the police a short time 
later and were alerted that they were searching for us. We told them 
where we were and they picked us up to ask questions and eventually 
take us into custody. We were interviewed by the FBI because of the 
nature of the event and they deemed that we were not attempting to do 
 
 
 
 
 
3 
anything malicious and left us to the local authorities. We were placed in 
custody for the night and released the following day with orders to go to 
court. Our court dates continued getting pushed back for nearly a year, we 
eventually started taking care of business at the court dates and the last 
court date occurred in 04/2012. We were able to show the court that we 
did not intend any harm and regretted our decision. The court lowered the 
charge to a deferred sentence Petty Offense of Disturbing the Peace 
because of the trouble the event had caused. We completed 75 hours of 
community service and continued to write letters of apology to the FBI 
inspector, Police Chief, Fire Chief, and Postmaster that had been 
involved. I have deeply regretted this decision since the event occurred, it 
was a stupid mistake, as you will see during my background check there 
are no other events on my record. I have done my best to be [a] 
responsible, positive and productive member of my community and I hope 
that I will not be denied this clearance based on a single mistake. (Item 4.) 
 
 In his Answer and Response, Applicant indicated that there has been no 
subsequent conduct of a similar nature. He also stated that such conduct is unlikely to 
recur. He expressed sincere remorse. His Response included copies of the sincere 
apology letters he wrote to the police and fire department involved. He also included his 
log of community service to show it was completed. (Answer; Response.) 
 
 Under Paragraph 2, Use of Information Technology Systems, Applicant admitted 
that he received four reprimands while employed at a credit union for misuse of 
information technology systems between December 2013 and January 2014. (Answer.) 
He worked in the information technology department at that institution. These 
reprimands were also cross alleged as a security concern under Guideline E, Personal 
Conduct. (Item 2; Answer.)  
 
From January 2013 to February 2014, Applicant worked for a credit union in its 
information technology department. Applicant explained that the job “called for more 
experience and knowledge than I had to offer at the time. While my manager knew of 
my inexperience when he hired me he hoped I would be able to be trained and grow 
into the position. Unfortunately, time did not allow for much training and I could not grow 
into the position in the time that [the employer] had hoped.” (Item 4.) As a result, he 
received two disciplinary actions in December 2013, for failure to inform management of 
potentially malicious behavior that he could not resolve; and for a security incident for 
powering off all servers without authorization and against company policy. In January 
20141 Applicant received disciplinary action twice, for failure to perform trace scans and 
removed unencrypted operating systems; and for unwillingness to follow rules, 
regulations, and procedures. Applicant decided to leave this job in February 2014, after 
he was told that if his performance did not improve, he could be terminated. He 
provided a copy of his resignation letter in his Response. (Item 4; Response.) 
                                            
1 The SOR incorrectly refers to these events as occurring in January 2013.  
 
 
 
 
 
4 
 Applicant indicated in his Response that these were isolated incidents, due to his 
improper training and the work environment at the credit union. He indicated he has a 
strong work ethic and has thrived in positions since leaving the credit union. 
(Response.) He presented 2014 and 2015 performance reviews from his employer that 
demonstrate his technical proficiency and professional conduct. He also presented a 
2010-2012 performance review from a previous employer that shows Applicant 
performed well and took responsibility for his actions, decisions, and all tasks delegated 
to him. (Response.)  
 
 Applicant presented seven character reference letters. His pastor indicated that 
he has known Applicant all his life and that the criminal incident was “out of character.” 
Another minister from his church indicated that Applicant was creative and will “learn 
more appropriate ways to express his creativity after growing from his [criminal] 
mistake.” (Response.) His two former supervisors and an associate wrote letters on 
Applicant’s behalf indicating Applicant is responsible and hard working. Applicant’s 
facility security officer wrote a letter to “personally attest to [Applicant’s] 
conscientiousness in the workplace.” She indicated Applicant abides by all security 
guidelines and “is a man of integrity and character and that his youthful indiscretions 
were a terrible mistake.” (Response.)  
 
 Applicant is active in community service. He teaches a troop of boys “life skills, 
survival techniques, and leadership skills.” (Response.) He earned an Associate’s 
Degree in 2011 and has earned several certificates in different areas of the information 
technology field. (Response; Item 5.) 
 
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, the administrative judge applies the guidelines in 
conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The 
administrative judge=s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. According to AG & 2(c), the entire process is a conscientious 
scrutiny of a number of variables known as the Awhole-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[a]ny doubt concerning personnel being considered for access to 
classified information will be resolved in favor of national security.@ In reaching this 
 
 
 
 
 
5 
decision, I have drawn only those conclusions that are reasonable, logical and based on 
the evidence contained in the record.  
 
According to Directive & E3.1.14, the Government must present evidence to 
establish controverted facts alleged in the SOR. Under Directive & E3.1.15, an 
“applicant is responsible for presenting witnesses and other evidence to rebut, explain, 
extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, 
and has the ultimate burden of persuasion as to obtaining a favorable clearance 
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. See also EO 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information).  
 
Analysis 
 
Guideline J, Criminal Conduct 
 
AG ¶ 30 expresses the security concern pertaining to criminal conduct: 
 
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. 
 
AG ¶ 31 describes five conditions that could raise a security concern and may be 
disqualifying. One condition applies: 
 
(a) a single serious crime or multiple lesser offenses. 
 
 Applicant was convicted of Petty Offence Disturbing the Peace in September 
2011. His conduct raises security concerns under DC 31(a), and shifts the burden to 
Applicant to rebut, extenuate, or mitigate those concerns. 
 
AG ¶ 32 provides four conditions that could mitigate security concerns. Two 
conditions may apply: 
 
(a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances that it is unlikely to recur 
 
 
 
 
 
6 
and does not cast doubt on the individual's reliability, trustworthiness, or 
good judgment; and 
 
(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. 
 
 Applicant presented evidence to establish full application of the above mitigating 
conditions. Six years ago, Applicant was 20 years old. He lacked maturity and 
participated in an extremely thoughtless photoshoot, which ended in his arrest after the 
authorities were alerted to his actions. His letters of apology demonstrate sincere 
remorse for his improper conduct. He fully completed all of the court-ordered community 
service. His Answer, Response, and recommendation letters from the people that know 
him best, reflect that this instance was an aberrational event. He has learned from his 
past behavior and will not engage in such conduct again. He has not repeated such 
imprudent behavior in the past six years. The above mitigating conditions apply. 
 
Guideline M, Use of Information Technology Systems 
 
The security concern relating to the guideline for Use of Information Technology 
Systems is set out in AG ¶ 39: 
 
Noncompliance with rules, procedure, guidelines or regulations pertaining 
to information technology systems may raise security concerns about an 
individual’s reliability and trustworthiness, calling into question the 
willingness or ability to properly protect sensitive systems, networks, and 
information. Information Technology Systems include all related computer 
hardware, software, firmware, and data used for the communication, 
transmission, processing, manipulation, storage, or protection of 
information. 
 
 AG ¶ 40 describes conditions that could raise a security concern and may be 
disqualifying. The following disqualifying conditions are potentially applicable: 
 
(e) unauthorized use of a government or other information technology 
system; and 
 
(g) negligence or lax security habits in handling information technology 
that persist despite counseling by management. 
 
The above disqualifying conditions have been established.  
 
AG ¶ 41 provides conditions that could mitigate security concerns. Applicant 
admitted that in December 2013 to January 2014, he received four disciplinary actions 
 
 
 
 
 
7 
for: failure to inform management of potentially malicious behavior that he could not 
resolve; a security incident for powering off all servers without authorization and against 
company policy; failure to perform trace scans and removed unencrypted operating 
systems; and for unwillingness to follow rules, regulations, and procedures. The 
following is potentially applicable:  
 
(a) so much time has elapsed since the 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. 
 
 Applicant acknowledges his on-the-job errors from December 2013 to January 
2014. He admitted that he lacked the proper training to do his job adequately without 
errors and expressed remorse at his failings. As a result, he decided to seek other 
employment. He is successful in his current position. His infractions occurred under 
circumstances that are unlikely to be repeated. He has not had any security issues at 
his new job, which he has successfully held for two years. Similar circumstances are 
unlikely to recur and his past conduct does not cast doubt on his current reliability, 
trustworthiness, and good judgment. The above mitigating condition applies.  
 
Guideline E, Personal Conduct  
 
The security concern for the Personal Conduct 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. 
 
 AG ¶ 16 describes conditions that could raise a security concern and may be 
disqualifying. Department Counsel argued the following disqualifying condition is 
applicable: 
 
(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. 
 
 Department Counsel argued that Applicant engaged in a course of unacceptable 
behavior over a several year span from 2010 to 2014. His 2010 arrest and his 2013 to 
 
 
 
 
 
8 
2014 employment misconduct are isolated events, but when considered as a whole, 
may indicate a history of exercising questionable judgment. AG ¶16(c) is applicable.  
 
AG ¶ 17 provides conditions that could mitigate security concerns. The following 
are potentially applicable:  
(c) the offense is so minor, or so much time has passed, or the behavior is 
so infrequent, or it happened under such unique circumstances that it is 
unlikely to recur and does not cast doubt on the individual’s reliability, 
trustworthiness, or good judgment; 
(d) the individual has 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  
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress. 
 Applicant met his burden to establish mitigation. As noted above, he presented 
evidence including letters expressing remorse, and letters from his current employer to 
show how his past actions no longer cast doubt on his reliability, trustworthiness, and 
judgment. He has matured and has technical proficiency at his current job. He 
completed the court ordered community service. He demonstrated positive performance 
reviews since January 2014. He has taken steps to alleviate the stressors, 
circumstances, or factors that caused his untrustworthy, unreliable, and inappropriate 
behavior including obtaining additional certificates of training. He acts as a role model to 
youth in his community. The above mitigating conditions fully apply.  
 
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.  
 
 
 
 
 
 
9 
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 
facts and circumstances surrounding this case. Applicant committed a criminal offense 
at the age of 20 and was reprimanded four times between December 2013 and January 
2014. He is now 26 years old. He has matured and is unlikely to engage in criminal 
conduct in the future. He has obtained additional job training and is successful in his 
current occupation. Overall, the record evidence leaves me without questions or doubts 
as to Applicant=s eligibility and suitability for a security clearance. For all these reasons, 
I conclude Applicant mitigated the security concerns arising under the guidelines for 
Criminal Conduct, Use of Information Technology Systems, and Personal Conduct.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: 
 
Paragraph 1, Guideline J:   FOR APPLICANT 
 
  Subparagraph 1.a:    For Applicant 
 
Paragraph 2, Guideline M:   FOR APPLICANT 
 
  Subparagraph 2.a:    For Applicant 
 
Paragraph 3, Guideline E:   FOR APPLICANT 
 
  Subparagraph 3.a:    For Applicant 
 
 
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is granted. 
 
 
                                                   
_________________ 
Jennifer I. Goldstein 
Administrative Judge