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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-02919 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Douglas Velvel, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
TUIDER, Robert J., Administrative Judge: 
 
Applicant failed to mitigate security concerns under Guideline E (personal 
conduct). Eligibility for access to classified information is denied. 
 
Statement of the Case 
 
On June 16, 2014, Applicant submitted a Questionnaire for National Security 
Positions. On November 23, 2015, the Department of Defense Consolidated 
Adjudications Facility (DOD CAF) 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) effective within the 
Department of Defense for SORs after September 1, 2006.  
 
 Subsequently, Applicant answered the SOR in an undated response. On January 
28, 2016, Department Counsel was prepared to proceed. On April 15, 2016, the case 
was assigned to me. On May 19, 2016, the Defense Office of Hearings and Appeals 
(DOHA) issued a notice of hearing scheduling the hearing for June 9, 2016. The hearing 
was held as scheduled. 
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The Government offered Government Exhibits (GE) 1 through 3, which were 
received without objection. Applicant did not offer any exhibits, testified on her own 
behalf, and called one witness. DOHA received the hearing transcript (Tr.) on June 16, 
2016.  
 
Findings of Fact 
 
 Applicant admitted SOR ¶ 1.b, and denied SOR ¶¶ 1.a, 1.c and 1.d. Her 
admission and denials were accompanied with explanations. Her admission is accepted 
as a finding of fact. 
 
Background Information 
 
 Applicant is a 36-year-old training assistant employed by a defense contractor 
since July 2011. (GE 1; Tr. 15) She seeks a secret security clearance to enhance her 
position within her company. (Tr. 15-16) 
 
 Applicant graduated from high school in June 1998. She attended a community 
college from 1998 to 1999, but did not graduate. (Tr. 17) Applicant married in 2012, and 
has no dependents. (Tr. 17-18)  She did not serve in the U.S. armed forces. (Tr. 19) 
 
Personal Conduct 
 
 The origin of this concern stems from Applicant’s June 2009 shoplifting offense 
and was subsequently compounded by her cover-up attempts.1 She falsely claimed on 
her June 2014 SF-86 that she was arrested for petit theft in June 2009 because she 
was the victim of identity theft. She repeated the same false story in July 2014, during 
an Office of Personnel Management Personal Subject Interview (OPM PSI) and in a 
subsequent December 2014 OPM PSI. However, it was during the December 2014 
OPM PSI, after being confronted by the investigator with specific information, that 
Applicant admitted that she fabricated being the victim of identity theft and that she 
actually was the person who shoplifted in June 2009. (SOR ¶¶ 1.a – 1.d; GE 1-3; Tr. 8-
11, 19-28) 
 
 Applicant testified that in June 2009, she was with her pregnant girlfriend looking 
for baby items. She stated that they did not have the $34 to purchase the items and 
decided to place them in her purse and attempt to walk out of the store without paying 
for them. She stated that she lied because she “was incredibly embarrassed.” (Tr. 12-
13, 19-20) In August 2009, Applicant was placed in a pre-trial diversion program and 
ordered to stay away from the store where the shoplifting occurred. In March 2010, after 
successfully completing her diversion program, the misdemeanor petit theft charge was 
nolle prossed. (GE 2; Tr. 20) 
 
                                                          
1
 Applicant contends that she was not “arrested” as alleged in the SOR, but rather was detained. She 
testified that after store security personnel observed her shoplifting, they escorted her to the security 
office and summoned local law enforcement personnel, who issued her a summons to appear. (Tr. 21, 
26) 
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 Applicant informed her husband as well as her immediate supervisor at the time 
of her shoplifting offense. Applicant’s husband testified that his wife is a “good person, 
good-hearted person, (and) she works hard.” Applicant’s former supervisor encouraged 
her to request a hearing. (Tr. 29-33) 
 
Policies 
 
The President of the United States has the authority to control access to 
information bearing on national security and to determine whether an individual is 
sufficiently trustworthy to have access to such information. Department of the Navy v. 
Egan, 484 U.S. 518, 527 (1988). The President has authorized the Secretary of 
Defense to grant eligibility for access to classified information “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). 
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the adjudicative guidelines. These AGs are not inflexible rules of 
law. Instead, recognizing the complexities of human behavior, these guidelines are 
applied in conjunction with an evaluation of the whole person. An administrative judge’s 
adjudicative goal is a fair, impartial, and commonsense decision. An administrative 
judge must consider all available, reliable information about the person, past and 
present, favorable and unfavorable to reach his decision.  
 
The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation of potential, rather than actual, risk of compromise of classified 
information. Clearance decisions must be “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, a 
clearance decision is merely an indication that the Applicant has or has not met the 
strict guidelines the President and the Secretary of Defense have established for issuing 
a clearance. 
 
Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
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criteria listed and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 
(App. Bd. May 2, 1996).      
 
Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it 
is clearly consistent with the national interest to grant or continue [his or her] security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of 
disproving a mitigating condition never shifts to the Government. See ISCR Case No. 
02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).   
 
Analysis 
 
Personal Conduct 
 
AG ¶ 15 articulates the security concern pertaining to 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. 
 
AG ¶ 16 describes four conditions that could raise a security concern and may be 
disqualifying in this case: 
 
(a) deliberate omission, concealment, or falsification of relevant facts from 
any personnel security questionnaire, personal history statement, or 
similar form used to conduct investigations, determine employment 
qualifications, award benefits or status, determine security clearance 
eligibility or trustworthiness, or award fiduciary responsibilities;  
 
(b) deliberately providing false or misleading information concerning 
relevant facts to an employer, investigator, security official, competent 
medical authority, or other official government representative;  
 
(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: 
 
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 (1) untrustworthy or unreliable behavior . . . ;  
 
 (3) a pattern of dishonesty or rule violations; 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 . . . . 
 
Applicant shoplifted in June 2009 and attempted to cover it up on three 
subsequent occasions when she completed her June 2014 SF-86 and during her July 
2014 and December 2014 OPM PSIs. It was only after being confronted by the 
investigator during her December 2014 OPM PSI with specific information that Applicant 
acknowledged her falsification. The Government established disqualifying conditions in 
AG ¶¶ 16(a), 16(b), 16(d), and 16(e).2 
 
AG ¶ 17 provides seven conditions that could potentially mitigate security 
concerns about his personal conduct: 
 
(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 
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;  
 
                                                          
2
 Deliberate and materially false answers on a security clearance application violate 18 U.S.C. § 1001. 
The Supreme Court defined “materiality” in United States v. Gaudin, 515 U.S. 506, 512 (1995): as a 
statement having a “natural tendency to influence, or [be] capable of influencing, the decision making 
body to which it is addressed.” See also United States v. McLaughlin, 386 F.3d 547, 553 (3d Cir. 2004). 
Making a false statement under 18 U.S.C. § 1001 is a serious crime, a felony (the maximum potential 
sentence includes confinement for five years and a $10,000 fine).  
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(f) the information was unsubstantiated or from a source of questionable 
reliability; and 
 
(g) association with persons involved in criminal activity has ceased or 
occurs under circumstances that do not cast doubt upon the individual's 
reliability, trustworthiness, judgment, or willingness to comply with rules 
and regulations. 
 
When applicants lie as Applicant repeatedly did during her background 
investigation and in her SOR answers, they seriously undermine the process as 
Applicant did in this case. None of the mitigating conditions fully apply.3  
 
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.  
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. AG ¶ 2(c).  
The comments in the Analysis section of this decision are incorporated in the 
whole-person concept analysis. Applicant has been a defense contractor employee 
since July 2011. Her husband testified that she is a good person and hard worker. 
                                                          
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 The Appeal Board has cogently explained the process for analyzing falsification cases, stating:
 
(a) when a falsification allegation is controverted, Department Counsel has the burden of 
proving falsification; (b) proof of an omission, standing alone, does not establish or prove 
an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must 
consider the record evidence as a whole to determine whether there is direct or 
circumstantial evidence concerning the applicant’s intent or state of mind at the time the 
omission occurred. [Moreover], it was legally permissible for the Judge to conclude 
Department Counsel had established a prima facie case under Guideline E and the 
burden of persuasion had shifted to the applicant to present evidence to explain the 
omission.  
 
ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9, 
2004)).  
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However, her deliberate falsifications, if relied upon, could have affected or influenced 
the security clearance adjudication process to the detriment of the Government.  
 
  Applicant’s deliberate failure to disclose information on her security clearance 
application is serious, recent, and not mitigated. As such, I have concerns about her 
current ability or willingness to comply with laws, rules, and regulations. After weighing 
the disqualifying and mitigating conditions, and all the facts and circumstances, in the 
context of the whole-person, I conclude she has not mitigated security concerns 
pertaining to personal conduct concerns. 
 
I take this position based on the law, as set forth in Department of Navy v. Egan, 
484 U.S. 518 (1988), my careful consideration of the whole-person factors and 
supporting evidence, my application of the pertinent factors under the adjudicative 
process, and my interpretation of my responsibilities under the adjudicative guidelines. 
Applicant has not fully mitigated or overcome the Government’s case. For the reasons 
stated, I conclude she is not eligible for access to 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 1, Guideline E: AGAINST APPLICANT 
 
Subparagraphs 1.a – 1.d:   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 or continue Applicant’s eligibility for 
a security clearance. Eligibility for a security clearance is denied. 
 
 
 
____________________________ 
Robert J. Tuider 
Administrative Judge