KEYWORD: Common Access Card
DIGEST: The two convictions at issue–DUI and domestic violence–entail risk of harm to
persons or property and could forseeably result in an unfavorable employment decision.  The
Judge recognized this. The subject matter of Applicant’s omissions is material.  Applicant’s
failure to have disclosed these offenses raises a concern that he is lacking in honesty,
trustworthiness, and reliability such that, were he granted access to Federal installations, he
poses a foreseeable risk of harm to persons, property, and/or information.  
Instruction, Enclosure 4, Appendix 2 ¶ 3(c)  sets forth criteria to assist in determining
whether that risk is unacceptable:
(1) The misstated or omitted information was so long ago, was minor, or
happened under such unusual circumstances that it is unlikely to recur.
(2) The misstatement or omission was unintentional or inadvertent and was
followed by a prompt, good-faith effort to correct the situation.
Given his findings about Applicant’s experience in completing OF 306s, and given that the
question at issue specifically includes misdemeanor offenses among those that must be disclosed,
the Judge’s conclusion that the omission was deliberate is sustainable.  Adverse decision
affirmed.
CASENO: 15-00898.a1
DATE: 12/09/2016
DATE: December 9, 2016
In Re:
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Applicant for CAC Eligibility
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CAC Case No. 15-00898
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Maryam Khajavi, Esq.
The Department of Defense (DoD) declined to grant Applicant eligibility for Common
Access Card (CAC) credentialing.  On May 22, 2015, DoD issued a statement of reasons (SOR)
advising Applicant of the basis for that decision–criminal or dishonest conduct concerns; material,
intentional false statement concerns; and alcohol abuse concerns, raised under the adjudicative
standards in the appendices of DoD Instruction 5200.46 (Sep. 9, 2014) (Instruction).  Applicant
requested a hearing.  On August 29, 2016, after the hearing, Defense Office of Hearings and Appeals
(DOHA) Administrative Judge Mark Harvey denied Applicant’s request for CAC eligibility. 
Applicant appealed pursuant to Instruction, Enclosure 4 ¶ 6.
Applicant raised the following issue on appeal: whether the Judge erred in finding that his
false statements were deliberate.  The Judge’s favorable findings regarding the criminal conduct and
alcohol abuse concerns are not at issue in this appeal.  Consistent with the following, we affirm.
The Judge’s Findings of Fact
The Judge made the following findings pertinent to the issue raised on appeal: In 2010
Applicant was convicted of DUI and sentenced to 13 days community service, a fine, and five years
probation.  Later that year he was convicted of battery upon his spouse and sentenced to a fine.  He
was also required to attend a domestic violence course.  
In November 2013, Applicant completed an OF 306.1  He answered “no” to a question about
whether, within the prior seven years, he had been convicted or on probation, which was false, given
his criminal history.  He claimed that at the time he completed the form he believed that seven years
had passed since his last offense.  He is familiar with the OF 306, having completed them in 2001,
1Optional Form 306, Declaration for Federal Employment.  Government Exhibit (GE) 2.
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2003, 2007, and 2008 or 2009.  He did not list his convictions in 2010 because he did not think the
government would check on misdemeanor offenses.2  
The Judge’s Analysis
The Judge cleared Applicant of all concerns except the failure to disclose his two convictions
and his probation status.  He stated that the falsification is recent, intentional, and serious and
concluded that none of the mitigating conditions merit full application on the facts of this case.
Discussion
Applicant contends that the Judge erred in concluding that he posed an unacceptable risk. 
He cites to his testimony that he was confused about the amount of time that had elapsed since his
last conviction and that, in any event, he understood the question to be limited to felonies.    
In a CAC adjudication, “the overriding factor . . . is unacceptable risk.”  Instruction,
Enclosure 4 ¶ 1(b).  The Supplemental Adjudicative Standards, which apply in this case, are
designed to ensure that the issuance of a CAC does not pose such a risk.3  The concern at issue in
this appeal is found in Instruction, Enclosure 4, Appendix 2 ¶ 3: “A CAC will not be issued to a
person if there is a reasonable basis to believe, based on the individual’s material, intentional false
statement, deception, or fraud in connection with federal or contract employment, that issuance of
a CAC would pose an unacceptable risk.” (emphasis added)
The two convictions at issue–DUI and domestic violence–entail risk of harm to persons or
property and, especially in combination, could forseeably result in an unfavorable employment
decision.  The Judge appears to have recognized this in his comment that it is not good for a
mechanic to have a DUI in his record.  See footnote 2, supra.  Accordingly, the subject matter of
Applicant’s omissions is material.  Applicant’s failure to have disclosed these offenses raises a
concern that he is lacking in honesty, trustworthiness, and reliability such that, were he granted
access to Federal installations, he poses a foreseeable risk of harm to persons, property, and/or
information.  
2“[Judge]: Okay. So, why didn’t you just go ahead and put those misdemeanors on here? [Applicant]: Because
I didn’t think you guys were going to look at it . . . [Judge]: You didn’t want them to know?  I mean, why? DUIs are
pretty bad for mechanics, right?  But – [Applicant]: Well, like I seen every[body] has, almost a lot of people have them
there. [Judge]: Yes. [Applicant]: And, I don’t know. [Judge]: So, you can’t give me a reason why you put no? . . .
[Applicant]: I just–I didn’t think it was going to come out. [Judge]: You didn’t think the Government would find out
about them?  [Applicant]: Yes, I guess.”  Tr. at 87-88.  
3“In this context, an unacceptable risk refers to an unacceptable risk to the life, safety, or health of employees,
contractors, vendors, or visitors; to the Government’s physical assets or information systems; to personal property; to
records, including classified, privileged, proprietary, financial, or medical records; or to the privacy of such data
subjects.”  Instruction, Enclosure 4 ¶ 2(b).
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Instruction, Enclosure 4, Appendix 2 ¶ 3(c)  sets forth criteria to assist in determining
whether that risk is unacceptable:
(1) The misstated or omitted information was so long ago, was minor, or happened
under such unusual circumstances that it is unlikely to recur.
(2) The misstatement or omission was unintentional or inadvertent and was followed
by a prompt, good-faith effort to correct the situation.
Given his findings about Applicant’s experience in completing OF 306s, and given that the question
at issue specifically includes misdemeanor offenses among those that must be disclosed,4 the Judge’s
conclusion that the omission was deliberate is sustainable.  Moreover, his conclusion that the
mitigating conditions do not apply is consistent with the record that was before him.  In light of the
record as a whole, we conclude that the Judge examined the relevant evidence and articulated a
satisfactory explanation for the decision.  The decision is sustainable on this record.
4“During the last 7 years, have you been convicted, been imprisoned, been on probation, or been on parole? 
(Includes felonies, firearms or explosive violations, misdemeanors, and all other offenses).”  GE 2 at p. 1. (emphasis
added)
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Order
The Decision is AFFIRMED.   
Signed: Michael Y. Ra’anan      
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board
Signed; James F. Duffy                   
James F. Duffy
Administrative Judge
Member, Appeal Board
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