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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
  
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-01999 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Carroll J. Connelley, Esq., Department Counsel 
For Applicant: Gregory F. Greiner, Esq. 
 
 
 
__________ 
 
Decision 
__________ 
 
 
RIVERA, Juan J., Administrative Judge: 
 
 Applicant charged 359 hours to a Defense agency contract that he did not work. 
His behavior demonstrated questionable judgment, dishonesty, and an unwillingness to 
comply with rules and regulations. His evidence is insufficient to mitigate the personal 
conduct security concerns. Clearance is denied. 
 
Statement of the Case 
 
Applicant submitted his most recent security clearance application (SCA) on 
December 3, 2013. After reviewing it and the information gathered during a background 
investigation, the Department of Defense (DOD) Consolidated Adjudications Facility 
(CAF) issued Applicant a Statement of Reasons (SOR) alleging security concerns under 
Guideline E (personal conduct) on October 15, 2015.1 Applicant answered the SOR on 
                                            
1 DOD 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 (Directive) (January 2, 1992), as amended; and the Adjudicative Guidelines 
for Determining Eligibility for Access to Classified Information (AG), implemented by the DOD on 
September 1, 2006. 
 
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December 3, 2015, and requested a hearing before an administrative judge from the 
Defense Office of Hearings and Appeals (DOHA).  
The case was assigned to me on April 12, 2016. DOHA issued a notice of 
hearing on April 25, 2016, scheduling a hearing for June 6, 2016. Applicant was granted 
a continuance to wait for the production of documents from other agencies requested by 
Applicant under the Freedom of Information Act and the Privacy Act. (Hearing Exhibit 1) 
The hearing was rescheduled for July 21, 2016. 
 
At the hearing, the Government presented the testimony of one witness and 
offered four exhibits (GE 1 through 4). Applicant testified and submitted one exhibit (AE 
1), comprised of Tabs A through H. All exhibits were made part of the record without 
objections. DOHA received the hearing transcript (Tr.) on July 28, 2016. 
 
Findings of Fact 
 
Applicant denied the factual allegations in SOR ¶ 1.a, with explanations. After a 
thorough review of the record evidence, and having considered Applicant’s demeanor 
while testifying, I make the following findings of fact:  
 
Applicant is a 32-year-old employee of a defense contractor. He received his 
bachelor’s degree in 2006, and completed his master’s degree in 2012. He has never 
been married and has no children.  
 
Applicant started working in 2003 in a variety of summer and temporary jobs until 
2007, when he was hired by a defense contractor. Between 2007 and November 2012, 
he worked for three different defense contractors. In 2008, Applicant was granted a 
secret level clearance. He was hired by his current employer, a defense contractor, in 
November 2013. According to Applicant, his clearance was upgraded to top secret in 
2014. 
 
In 2012, the inspector general for the federal agency (Agency) that contracted 
Applicant’s employer conducted an investigation that revealed timekeeping 
discrepancies on Applicant’s timecard reporting and his badge in-and-out readings. It 
was determined that between January 2011 and July 2012, Applicant billed 359 hours 
that he did not work. Applicant was confronted by his company supervisors with these 
discrepancies. Applicant admitted to his company supervisors that he did not work all 
the hours he recorded in his timesheet. He charged to the defense contract many hours 
he had not worked. Applicant told his supervisors during a meeting he was charging the 
contractor for time he knew it was not appropriate to charge for. 
 
After he was hired, Applicant was trained by his company’s human resources 
section and his supervisor about company policies and his responsibilities completing 
the timesheets. Applicant did not follow his employer’s timecard policies. He was also 
counseled “repeatedly” concerning his failure to comply with his employer’s timecard 
policies. (Tr. 22-23, 29-30) Applicant’s supervisors during the period in question denied 
 
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they authorized Applicant to leave work prior to completing his eight-hour work day. 
Applicant’s employer determined that he engaged in fraudulent timekeeping, and 
offered him to resign or be terminated. Applicant resigned his job. 
 
In his 2013 SCA, Applicant disclosed that he resigned from his job with a defense 
contractor in lieu of being terminated. He stated: 
 
While working on contract at the [Agency] as a terrorism analyst. 
The Agency Inspector General ran a random audit of badge-in/out times 
for the building. Their office found discrepancies between my reported 
time and those listed in the Agency system (using badge swipes). This 
was reported to my employer who gave me the option to resign (or else I 
would be fired), so I [resigned].  
I attempted to explain that many of these discrepancies were likely 
due to filling out time sheets days after the fact and having to estimate my 
hours, as well as routinely being out of the building for 
meetings/conferences at other agencies or sites. I also mentioned that it 
was never explained to me that I was to keep a to-the-minute record of my 
time in almost two years of working on site at the Agency. I always 
checked with my Agency supervisors before leaving for the day, who knew 
where I was at all times. I went on to say that the very last thing I would 
ever do is intend to deceive or defraud with regard to my time sheets. (I) 
mentioned my outstanding reputation among my coworkers and 
supervisors at the Agency, as well as a passion for my work (often beyond 
normal hours).  
I tried to impress upon my (employer) supervisors that while I had 
not followed protocol properly, this was due to a lack of training in 
company and agency time keeping policy and procedures; something that 
was not thoroughly outlined until almost two years after the fact. After 
discussing with government employees the amount of training they 
receive at the outset of their assignment to the Agency, I was shocked to 
learn how much simply was not told to me when I began. I explained that 
my dedication to the mission. as well as an absolutely flawless record. 
should be taken into account. but unfortunately this did little to change 
their minds. I was told that none of these things mattered and this was 
simply what had to happen. 
Applicant was interviewed by a government investigator in March 2014. He told 
the investigator that prior to being confronted with his timesheet discrepancies, he had 
received remedial training on how to complete his timecards. Applicant told the 
investigator that he was not trying to falsify his timecards or defraud the government or 
his employer. He attributed his discrepancies to sloppy timekeeping, completing his 
timecards days after working and estimating his times. 
 
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In his SOR response and at his hearing, Applicant claimed that some of his time 
discrepancies were explained by approved meetings outside of his office and while 
completing unapproved work outside of the office. Applicant further claimed he was 
unaware of his employer’s expectations associated with his work hours and location, 
and that he did not receive any training from his employer about completing his 
timesheet. He contended that some hourly omissions were partially caused by 
inadequate training and incomplete understanding of the contract requirements. 
Applicant’s claims were not supported by the record evidence. 
 
At his hearing, Applicant denied that he admitted to committing timesheet fraud. 
He admitted that he was “too relaxed and not in compliance with the timekeeping policy 
. . . . (he) did not understand the degree of accuracy to which he was supposed to be 
recording (his) time, and no one had ever remediated (him) on the degree of accuracy.” 
(Tr. 77) 
 
Applicant noted that he has no other disciplinary infractions or problems during 
his eight years working for defense contractors. His clearance was increased to a top 
secret level after the concerns alleged in the SOR surfaced, and he currently works in 
an important planning and training position. Applicant believes that the passage of time, 
his good performance, and his honesty show that his misconduct is not likely to recur, 
and that he is reliable, trustworthy, and uses good judgment. Applicant further believes 
that he has matured substantially since 2012. He believes he has demonstrated 
professional growth, and continued handling classified information appropriately.  
 
Applicant’s supervisor during the time in question considered him to be a great 
employee. His performance review for the period February 2015 to January 2016, 
indicates Applicant exceeded expectations and is considered to be a great asset to his 
employer. (AE 1, Tab B) Applicant submitted a letter of commendation and two 
reference letters indicating that he has demonstrated a high-level of competency, 
professionalism, and knowledge.  
 
Policies 
 
Eligibility for access to classified information may be granted “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. 
The U.S. Supreme Court has recognized the substantial discretion of the Executive 
Branch in regulating access to information pertaining to national security, emphasizing 
that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 
U.S. 518, 528 (1988). 
 
The AG list disqualifying and mitigating conditions for evaluating a person’s 
suitability for access to classified information. Any one disqualifying or mitigating 
condition is not, by itself, conclusive. However, the AG should be followed where a case 
can be measured against them, as they represent policy guidance governing access to 
 
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classified information. Each decision must reflect a fair, impartial, and commonsense 
consideration of the whole person and the factors listed in AG ¶ 2(a). All available, 
reliable information about the person, past and present, favorable and unfavorable, 
must be considered.  
 
Security clearance decisions resolve whether it is clearly consistent with the 
national interest to grant or continue an applicant’s security clearance. The Government 
must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, 
the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The 
applicant bears the heavy burden of demonstrating that it is clearly consistent with the 
national interest to grant or continue his or her security clearance.  
 
Persons with access to classified information enter into a fiduciary relationship 
with the Government based on trust and confidence. Thus, the Government has a 
compelling interest in ensuring each applicant possesses the requisite judgment, 
reliability, and trustworthiness of those who must protect national interest as their own. 
The “clearly consistent with the national interest” standard compels resolution of any 
reasonable doubt about an applicant’s suitability for access in favor of the Government. 
“[S]ecurity clearance determinations should err, if they must, on the side of denials.” 
Egan, 484 U.S. at 531; AG ¶ 2(b). Clearance decisions are not a determination of the 
loyalty of the applicant concerned. They are merely an indication that the applicant has 
or has not met the strict guidelines the Government has established for issuing a 
clearance. 
 
Analysis 
 
Guideline E, Personal Conduct 
 
  AG ¶ 15 articulates the security concern for personal conduct: 
 
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. 
 
  Between January 2011 and July 2012, Applicant billed a Defense agency for 359 
hours that he did not work. (SOR ¶ 1.a) Applicant admitted to his supervisors that he did 
not work all the hours he recorded in his timesheet, and that he knew it was not 
appropriate to charge for hours he did not work. 
 
  Applicant’s behavior triggers the applicability the following disqualifying 
conditions under AG ¶ 16: 
 
 
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(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; 
 
(4) evidence of significant misuse of Government or other employer's time 
or resources; and 
 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a vulnerability to exploitation, manipulation, or duress, such 
as (1) engaging in activities which, if known, may affect the person's 
personal, professional, or community standing . . . .  
 
 AG ¶ 17 lists six conditions that could potentially mitigate the personal conduct 
security concerns: 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; 
(b) the refusal or failure to cooperate, omission, or concealment was 
caused or significantly contributed to by improper or inadequate advice of 
authorized personnel or legal counsel advising or instructing the individual 
specifically concerning the security clearance process. Upon being made 
aware of the requirement to cooperate or provide the information, the 
individual cooperated fully and truthfully; 
(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 
 
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stressors, circumstances, or factors that caused untrustworthy, unreliable, 
or other inappropriate behavior, and such behavior is unlikely to recur; 
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress; and 
(f) the information was unsubstantiated or from a source of questionable 
reliability.  
 Considering the evidence as a whole, including Applicant’s age, education, 
experience working for government contractors while possessing a clearance, and the 
circumstances surrounding his questionable behavior, I find that Applicant’s evidence is 
insufficient to mitigate the Guideline E security concerns.  
 In light of his work experience and education, I do not accept Applicant’s claims 
of not knowing how to accurately complete a timesheet. His claims of checking with his 
Agency supervisors before leaving for the day are not supported by the record 
evidence. Additionally, the evidence shows Applicant was trained when he was hired on 
his company’s policies and about his timesheet responsibilities. He was later counseled 
many times for his failure to comply with those policies. In sum, Applicant’s conflicting 
testimony, in light of the evidence as a whole, is not credible and undermines his 
explanations and otherwise favorable or mitigating evidence.  
Whole-Person Concept 
 
 I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case, and under the whole-person 
concept. AG ¶ 2(c). I have incorporated my comments under Guideline E in my whole-
person analysis.  
 
 Applicant receives credit for his eight years working for defense contractors. He 
is considered to be a great employee, exceeded expectations, and demonstrated a 
high-level of competency, professionalism, and knowledge. I considered that Applicant’s 
questionable behavior occurred about four years ago, and that he has positives reviews 
with his current employer. 
 
 On the other hand, Applicant charged to a federal agency 359 hours that he did 
not work. Regardless of whether he engaged in fraud, Applicant engaged in clearly 
inappropriate behavior that demonstrated questionable judgment, dishonesty, and his 
unwillingness to comply with rules and regulations.  
 
 Applicant’s testimony concerning his lack of training (lack of understanding about 
his company’s policies, and his timesheet responsibilities) lacks credibility when 
analyzed in light of the evidence as a whole. I find that Applicant continues to minimize 
and deny his questionable behavior. His lack of credibility adversely impacts on his 
 
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claims of increased level of maturity, changed circumstances, and overall mitigating 
evidence. He failed to mitigate the Guideline E 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 E:    AGAINST APPLICANT 
 
Subparagraph 1.a:     Against Applicant 
 
Conclusion 
 
In light of all the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant eligibility for a security clearance to 
Applicant. Clearance is denied. 
 
 
 
____________________________ 
JUAN J. RIVERA 
Administrative Judge