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                DEPARTMENT OF DEFENSE 
        DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
) 
------------------------- )       ISCR Case No. 15-08163 
) 
) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Adrienne Driskill, Esquire, Department Counsel 
 
For Applicant: Skyler Samp, Esquire 
Claery & Green, LLP 
 
 
July 19, 2017 
 
______________ 
 
Decision 
______________ 
 
ROSS, Wilford H., Administrative Judge: 
 
Applicant had one arrest and conviction for prescription-drug-related reckless 
driving more than four years ago. He had work problems, most of which were directly 
related to a chronic medical condition. Applicant did not intentionally falsify his security 
clearance questionnaire. Security concerns were mitigated. Eligibility for access to 
classified information is granted. 
 
 
Statement of the Case 
 
Applicant submitted his most recent Electronic Questionnaire for Investigations 
Processing (e-QIP) on June 5, 2015. (Government Exhibit 1.) On June 10, 2016, the 
Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a 
Statement of Reasons (SOR) to Applicant, detailing security concerns under Guidelines 
E (Personal Conduct) and J (Criminal Conduct). The action was taken under Executive 
 
 
 
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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 for Determining Eligibility for Access to Classified Information, 
effective within the Department of Defense after September 1, 2006.1 
  
Applicant answered the SOR in writing (Answer) on July 7, 2016, and requested a 
hearing before an administrative judge. Department Counsel was prepared to proceed on 
September 1, 2016. The case was assigned to me on September 8, 2016. The Defense 
Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on September 13, 
2016. I convened the hearing as scheduled on October 25, 2016. The Government 
offered Government Exhibits 1 through 7, which were admitted without objection. 
Applicant offered Applicant Exhibits A through I, which were admitted without objection, 
and testified on his own behalf. I granted Applicant’s request to leave the record open 
until November 10, 2016, to permit him to submit additional evidence. DOHA received the 
transcript of the hearing (Tr.) on November 1, 2016. Applicant elected not to submit any 
additional information and the record closed as scheduled.  
  
 
Findings of Fact 
 
Applicant is 36 years old and employed by a defense contractor as a Senior IT 
Systems Analyst. He is also involved in IT security, and has certifications in that discipline. 
(Applicant Exhibits H and I.) He has a bachelor’s degree. Applicant has a fiancée. He is 
seeking to retain a security clearance previously granted in connection with his 
employment. He has held a security clearance at various times during his career.  
 
Paragraph 1 (Guideline E – Personal Conduct) 
 
The Government alleges in this paragraph that Applicant is ineligible for clearance 
because he has engaged in conduct that shows poor judgment, untrustworthiness or 
unreliability. Applicant admitted subparagraphs 1.b, and 1.h. Those admissions are 
findings of fact. He denied the remaining allegations. Applicant submitted additional 
information supporting his request for a finding of eligibility for access to classified 
information. 
 
The record contains medical information of note. Applicant has suffered for many 
years from Crohn’s Disease. As a result of his disease he has had multiple bowel 
resections and intraabdominal abscesses, which have resulted in multiple 
hospitalizations. Fatigue and persistent diarrhea are symptoms of this disease. Applicant 
has both of these symptoms, which have a major impact on his life and work habits. His 
last major hospitalization was in August 2015, when he was in the hospital for two weeks. 
                                                 
1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new 
Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered 
under the previous Adjudicative Guidelines. 
 
 
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Applicant takes properly prescribed pain killers on a regular basis. Because of his illness, 
and the medications he takes, Applicant does not drink alcohol at all. (Applicant Exhibits 
B and G; Tr. 26-30, 74-78, 84.)  
 
In November 2014 Applicant was examined by a psychiatrist. This psychiatrist 
found that Applicant was also suffering from Asperger Syndrome, a pervasive 
developmental disorder. (Applicant Exhibit F; Tr. 86-87.)  
 
1.a. Applicant denied that he was terminated from his employment at a casino in 
about July 2008 for cashing a fraudulent traveler’s check for $500 without following the 
casino’s procedures. (Government Exhibit 1 at 22.) 
 
Applicant admitted that he cashed the check, but denied that he did not follow the 
casino’s procedures. (Answer; Government Exhibit 2; Tr. 17-21.) However, in 
Government Exhibit 3, Applicant told an investigator from the Office of Personnel 
Management that he was counseled by his manager for alleged procedural errors on this 
and one other occasion. Based on the available evidence, the incident appears to have 
been an honest mistake. This incident has no current security significance and is found 
for Applicant.  
 
1.b. Applicant admitted that he received a red light camera violation in June 2012. 
He attempted to fight the ticket but was unsuccessful. In order to resolve the citation 
Applicant attended traffic school, but no points were assessed on his record. 
(Government Exhibit 3 at 2, Exhibit 4 at 6; Tr. 21-23.) This incident has no current security 
significance and is found for Applicant. 
 
1.c. Applicant was employed by Law Office C from October 2011 to February 2013. 
He denied that he was formally reprimanded or disciplined by this employer two or three 
times for sleeping at work. Applicant did admit that his supervisors did talk to him about 
sleeping on the job. He believes these sleeping incidents to be related to his Crohn’s 
disease. Applicant resigned from this position because he had obtained other 
employment, not because of the incidents of falling asleep. (Government Exhibit 4 at 4; 
Tr. 24-26, 30-31.)  
 
1.d. Applicant was arrested on May 16, 2013, for Possession of 
Narcotic/Controlled Substance Without a Prescription, and Being Under the Influence of 
a Controlled Substance.2 Applicant had not been drinking alcohol, but had been taking 
his prescribed pain killers. On February 2, 2015, he plead guilty to an additional charge, 
the lesser included offense of Reckless Driving. He was sentenced to summary probation 
for three years, a fine, to attend a first offender’s alcohol program, and attend a MADD 
impact panel. A hospitalization originally prevented Applicant from attending the impact 
panel, but he has since completed it. Applicant is still on probation until January 2018, but 
                                                 
2 The SOR alleges that Applicant was arrested for three charges, including Driving Under the Influence of 
a Controlled Substance, and Driving Under the Influence of Alcohol or Drugs. That is incorrect. See 
Applicant Exhibit D. 
 
 
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has completed the remainder of the sentence. Applicant has changed his driving habits 
as a result of this incident. (Government Exhibit 4 at 3-4, Exhibit 5, and Exhibit 6; Applicant 
Exhibits D and E; Tr. 31-44, 72-73, 78-80.)   
 
This allegation was cross-alleged under Guideline J, Criminal Conduct, as 
subparagraph 2.a. Applicant denied that allegation.  
 
1.e. Applicant was employed by a defense contractor (Company E) at the time of 
the incident described in 1.d, above. Applicant stated in his e-QIP that he received a 
warning concerning the offense from his employer. The company submitted a JPAS 
report about the incident in 1.d. Applicant resigned from this employment in September 
2013. He stated that his resignation was not in connection with the 1.d incident, but rather 
because he thought he had obtained better employment. When the other employment 
opportunity did not pan out he attempted to rescind his resignation, but was unsuccessful. 
(Government Exhibit 1 at 16-17, Exhibit 7; Tr. 44-47.) 
 
1.f. Applicant was detained by police for possibly driving under the influence of 
alcohol or drugs after a minor accident on August 18, 2013. After a blood alcohol test 
showed he had not been drinking at all Applicant was released. No charges were filed, 
and the records confirm this was “Detention Only.” Based on the available evidence, I find 
that Applicant was not arrested or charged on this occasion. (Government Exhibit 4 at 6, 
Exhibit 5, and Exhibit 6; Tr. 47-54.) 
 
1.g. Applicant was employed at Law Office G from January to March 2014 as a 
Technical Lead System Administrator. Applicant admits he was terminated from this 
position due to his monitoring of other employee emails. However, Applicant denied that 
what he did was inappropriate. He testified that he believed monitoring the database and 
email servers was part of his job. However, he was terminated because other people in 
the corporation thought his conduct was not appropriate. (Government Exhibit 1 at 15; 
Applicant Exhibit C; Tr. 54-58.) 
 
1.h. Applicant was employed with a defense contractor (Company H) from 
November 2014 through January 2015. Applicant had severe medical issues during his 
entire time with this company, including a week-long hospitalization in November 2014. 
He also passed out unexpectedly on the job several times due to his illness, which his 
employer viewed as “sleeping on the job.” He left this job by mutual agreement. 
(Government Exhibit 1 at 12-14; Tr. 58-62.)  
 
1.i. Applicant filled out a security clearance application on June 5, 2015. 
(Government Exhibit 1.) Question 21 of that application asked Applicant whether he had 
consulted a mental health professional regarding an emotional or mental health condition. 
Applicant answered the question, “No.” In fact Applicant had consulted a counselor in 
2013 on about five occasions due to work-related stress, and saw a psychiatrist from June 
2014 to January 2015 for depression and anxiety. In his Answer and at the hearing 
Applicant denied that his answer to this question was false because the question says, 
 
 
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“Answer ‘No’ if the counseling was for . . . grief not related to violence by you.” Applicant 
stated that to him grief included, “Losing job, losing potential freedom.” He went on to 
testify, “I define ‘grief’ as a loss of anything, anything significant, such as freedom, death 
of a spouse. Any sort of job or situation can put a person into grief.” (Tr. 63-68.) 
  
1.j Section 22 of the same questionnaire asked Applicant about his arrest history. 
Applicant did disclose in detail the facts of the May 2013 arrest set forth in subparagraphs 
1.b and 1.d. In addition, that section asked whether Applicant had been arrested any other 
time during the previous seven years. Applicant stated, “No,” and did not admit the alleged 
driving under the influence incident that occurred on August 18, 2013 (subparagraph 1.f). 
Applicant did not admit this alleged incident because he felt it was an improper arrest, as 
described elsewhere. (Government Exhibits 5 and 6; Tr. 69-72.) 
 
The same section asked whether Applicant had ever been charged with an offense 
involving alcohol. Applicant stated, “No,” to this section because he was never charged 
with a drug or alcohol offense regarding the August 18, 2013 incident because the blood 
alcohol test came back negative and because this incident is defined in the records as, 
“Released/Detention Only.” (Government Exhibits 5 and 6; Tr. 69-71.) 
 
Applicant was interviewed under oath by an investigator from the Office of 
Personnel Management on August 24, 2015, two months after filling out the e-QIP. During 
that interview Applicant freely and frankly discussed all of his employment issues, his 
illness, and the counseling he received. With regard to the August 18, 2013 incident, the 
Report of Investigation states that Applicant “volunteered” information on that topic. 
Applicant testified that he wanted to be “transparent” during the interview. (Government 
Exhibit 4; Tr. 71-72.) 
 
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines (AG) list 
potentially disqualifying conditions and mitigating conditions, which are to be used in 
evaluating an applicant’s national security eligibility. 
 
 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s 
overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire 
process is a conscientious scrutiny of applicable guidelines in the context 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. 
 
 
 
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The protection of the national security is the paramount consideration. AG ¶ 2(b) 
requires, “Any doubt concerning personnel being considered for national security 
eligibility will be resolved in favor of the 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. I have not drawn inferences based on mere speculation or 
conjecture.  
 
 Directive ¶ E3.1.14, requires the Government to 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 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 enter 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 national security eligibility. 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 or 
sensitive information. Finally, as emphasized in Section 7 of Executive Order 10865, “Any 
determination under this order adverse to an applicant shall be a determination in terms 
of the national interest and shall in no sense be a determination as to the loyalty of the 
applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple 
prerequisites for access to classified or sensitive information.) 
 
 
Analysis 
 
Paragraph 1 (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 or sensitive information. Of special interest is any failure to 
cooperate or provide truthful and candid answers during national security 
investigative or adjudicative processes. The following will normally result in 
an unfavorable national security eligibility determination, security clearance 
action, or cancellation of further processing for national security eligibility: 
 
 
 
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(a) refusal, or failure without reasonable cause, to undergo or cooperate 
with security processing, including but not limited to meeting with a security 
investigator for subject interview, completing security forms or releases, 
cooperation with medical or psychological evaluation, or polygraph 
examination, if authorized and required; and 
 
(b) refusal to provide full, frank, and truthful answers to lawful questions of 
investigators, security officials, or other official representatives in 
connection with a personnel security or trustworthiness determination. 
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 16. Two are potentially applicable 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 national security eligibility or 
trustworthiness, or award fiduciary responsibilities; and 
 
(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 individual may not properly safeguard 
classified or sensitive information. 
 
 The guideline also notes several conditions that could mitigate security concerns 
under AG ¶ 17. Two are potentially applicable in this case: 
 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; and  
 
(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. 
 
 The record shows that Applicant suffers from a serious and chronic medical 
condition. Two symptoms of this condition are extreme fatigue, and chronic pain. SOR 
allegations 1.c and 1.h are directly related to his condition, and are unique circumstances. 
Those allegations are found for Applicant. 
 
 Applicant’s discharge from the Law Office G in 2014 appears to have been a matter 
of policy confusion or conflict inside the company as to Applicant’s proper role 
 
 
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(subparagraph 1.g). His conduct was not, on its face, wrongful. Based on all of the 
available evidence, which is provided solely by Applicant, I find this allegation for 
Applicant. 
 
 The available records support Applicant’s contention that he was not arrested or 
charged for driving under the influence in August 2013. The records state that this incident 
was a “Detention Only.” Under the circumstances, subparagraph 1.f is found for Applicant. 
 
 Applicant has one drug-related arrest and conviction on his record. The incident 
happened in 2013, four years ago (subparagraph 1.d). There has been no recurrence of 
that conduct. Mitigating Condition 17(c) applies to this allegation, as well as the related 
allegation in subparagraph 1.e, which are both found for Applicant. 
 
 Applicant had a good-faith belief that he was receiving grief counseling from a 
counselor and a psychiatrist. His definition of grief as including the emotional concerns 
for which he sought treatment is not inherently unreasonable given his personal history. 
Accordingly, I do not find that he had the requisite intent to falsify Section 21 of his e-QIP 
on this topic.  
 
 Applicant, with good reason, did not believe he had been arrested or charged in 
August 2013. This was because he was released without charge after a blood test. Once 
again, I find that he did not have the requisite intent to falsify Section 22 of his e-QIP on 
this topic. 
 
 In addition, Mitigating Condition 17(a) applies to both allegations relating to 
Applicant’s e-QIP responses. Two months later, when interviewed, Applicant made a 
prompt, good-faith effort to disclose the information, and thereby correct possible  
omissions, before being confronted with the facts. 
 
 Applicant has successfully mitigated all of the allegations under Guideline E. 
Paragraph 1 is found for Applicant.     
 
Paragraph 2 (Guideline J: Criminal Conduct) 
 
The security concern relating to the guideline for Criminal Conduct is set out in AG 
¶ 30:  
 
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. 
 
 
 
 
 
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The guideline at AG ¶ 31 contains five disqualifying conditions that could raise a 
security concern and may be disqualifying. Two conditions might apply, as discussed 
below: 
 
(b) evidence (including, but not limited to, a credible allegation, an 
admission, and matters of official record) of criminal conduct, regardless of 
whether the individual was formally charged, prosecuted, or convicted; and 
 
(c) individual is currently on parole or probation. 
 
The guideline in AG ¶ 32 contains four conditions that could mitigate criminal 
conduct security concerns. Two of these are established by the evidence: 
 
(a) so much time has elapsed since the criminal 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; and 
 
(d) there is evidence of successful rehabilitation; including, but not limited 
to, the passage of time without recurrence of criminal activity, restitution, 
compliance with the terms of parole or probation, job training or higher 
education, good employment record, or constructive community 
involvement. 
 
 Applicant has a single prescription-drug-related arrest and conviction. Due to the 
timing of the court hearings, sentencing was almost two years after the incident and, 
because of that, Applicant remains on informal probation. He has fulfilled all the other 
sentencing requirements, and the conduct is unlikely to recur. Both of the mitigating 
conditions apply. Paragraph 2 is found for Applicant. 
 
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(d):  
 
(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.  
 
 
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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 
pertinent facts and circumstances surrounding this case. Applicant has mitigated his 
single prescription-drug-related arrest, and the alleged falsifications. The other conduct 
was also mitigated due to his health conditions and other circumstances. Overall, the 
record evidence does not create substantial doubt as to Applicant=s present eligibility and 
suitability for national security eligibility, and a security clearance. 
 
 
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 E:    FOR APPLICANT 
 
Subparagraphs 1.a through 1.j:   For Applicant 
 
Paragraph 2, Guideline J:    FOR APPLICANT 
 
Subparagraph 2.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 or continue Applicant=s national security 
eligibility for a security clearance. Eligibility for access to classified information is granted. 
                                                  
 
 
WILFORD H. ROSS 
Administrative Judge