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       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
) ISCR Case No. 17-03629 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Andrea Corrales, Esq., Department Counsel 
For Applicant: John Berry, Esq. 
______________ 
Decision 
______________ 
RICCIARDELLO, Carol G., Administrative Judge: 
Applicant failed to mitigate the security concerns under Guideline E, personal 
conduct. Eligibility for access to classified information is denied.  
Statement of the Case 
On December 27, 2017, the Department of Defense Consolidated Adjudications 
Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security 
concerns under Guideline E, personal conduct. The action was taken under Executive 
Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 
1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security 
Clearance Review Program (January 2, 1992), as amended (Directive); and the 
adjudicative guidelines (AG) effective on June 8, 2017. 
Applicant answered the SOR on January 30, 2018, and requested a hearing before 
an administrative judge. The case was assigned to me on August 3, 2018. The Defense 
Office of Hearings and Appeals (DOHA) issued a notice of hearing on September 5, 2018. 
I convened the hearing as scheduled on October 24, 2018. The Government offered 
01/02/2019
 
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exhibits (GE) 1 through 3. A witness for the Government testified. Applicant and two 
witnesses testified on his behalf. He offered Applicant Exhibit (AE) A. There were no 
objections to any exhibits offered, and all were admitted into evidence. DOHA received 
the hearing transcript on October 31, 2018.  
 
Findings of Fact 
 
 Applicant admitted in part and denied in part the sole allegation in the SOR. It will 
be considered a denial. After a thorough and careful review of the pleadings, testimony, 
and exhibits submitted, I make the following findings of fact. 
 
 Applicant is 45 years old. He has been married three times and to has been 
married to his current wife since 2010. He has three biological children, ages 16, 18 and 
21 years old. He has two adult stepchildren. Applicant served in the military from 1991 to 
1998. He received a General Discharge under Other than Honorable Conditions. He 
disclosed on his January 2017, National Security Position questionnaire that the reason 
for his discharge was “misconduct.” He testified that the misconduct was sexual 
harassment. He explained he was having a relationship with another military member, 
and they were both married.1  
 
 Applicant admitted that in October 2015, he was terminated from his position as a 
contractor. He disputes the findings of the investigation conducted by the contractor and 
the basis of the termination. He was accused of making threats of bodily harm to co-
workers and a general threat using the term “active shooter.”  
 
 While working for the primary contactor Applicant held a second job as a security 
officer, which required that he carry a firearm. His coworkers were aware of his second 
job and were aware he was authorized to have a firearm. Applicant admitted that he slept 
at his main job. He said he was not tired, but took a nap at his desk because he had an 
hour for lunch, and did not know what else to do.2 
 
 Witness X testified on behalf the Government. She stated that she and Applicant 
were friends both professionally and personally. She was not his supervisor, but was 
responsible for advising the program manager about issues in the office. She and 
Applicant interacted throughout the day. Employee Y provided a statement and in it said 
that she interacted with Applicant throughout the day.3  
 
 Witness X had observed Applicant sleeping during work over the course of a 
couple of months and that he kept a pillow in his desk drawer. She had reported his 
conduct to Mr. B, the program manager, because it impacted her job. Mr. W is the project 
manager and to whom Applicant reports. On October 21, 2015, the day before the alleged 
                                                          
1 Tr. 91-97, 120; GE 1. 
 
2 Tr. 97-99. 
 
3 Tr. 21-23. 
 
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incident, Mr W, in a memo to Mr. B, noted that he had observed Applicant sleeping at his 
desk.4 He stated:  
 
I stopped by [office] yesterday to chat with [Employee Y] for a bit. I found 
[Applicant] sleeping at his desk, [Witness X] was quick to point out that 
[Applicant] was on his lunch break. (I will take her at her word that was the 
case). Regardless, the workplace is not the venue to catch up on your sleep. 
[Applicant] can find a shady spot down the road somewhere to catch a nap 
on his lunch hour. I will let you address this while it is a housekeeping item 
that doesn’t go outside of our group.5 
  
Witness X testified that on October 21, 2015, the morning of the alleged incident, 
Applicant appeared to be acting normal. Later that day she noticed a change in his 
behavior, and he was angry because he had been counseled for sleeping at work. He 
was specifically angry at Mr. B and indicated that Mr. B would have an active shooter on 
his hands. Witness X considered this statement a credible threat because Applicant was 
already angry with Mr. B based on Applicant’s complaint that Mr. B was interfering in the 
warehouse operations. Witness X stated that Applicant had previously expressed his 
dissatisfaction with Mr. B by screaming at her, using profanity and dropping things in the 
warehouse.6 
 
Witness X credibly testified that when Applicant mentioned “active shooter” she 
became scared. She did not know if Applicant was capable of that behavior, but was 
aware he had a firearm, which she believed he kept it in his car. Applicant had previously 
talked to her about having a gun. She thought that Applicant was always tired because 
he was working two jobs. Witness X’s testimony is corroborated by a written statement 
she made the day after the incident.7 
 
Employee Y was present when that “active shooter” comment was made. She 
made a written statement the day after the incident.8 She stated:  
 
After noticing his anger and aggressive behavior, I asked [Applicant] what 
was wrong. He said that [Mr. W-his supervisor] told [Applicant] that he 
wanted to talk to him today and instructed him not leave the building until 
they spoke. [Applicant] said [Mr. B] told [Mr. W] that [Mr. B] caught 
[Applicant] sleeping and that he sleeps all the time. [Applicant] tried to 
explain that he only slept for 15 minutes. However, [Applicant] said that if 
[Mr. B] kept it up, he would have an active shooter on his hands. After 
                                                          
4 Tr. 23-25, 32, 43-44; GE 3. 
 
5 GE 3 page 3. 
 
6 Tr. 26-31, 44. 
 
7 Tr. 31, 53; GE 3 page 7. 
 
8 Tr. 31. 
 
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noticing that [Witness X] and I were not responding, he stormed off to the 
warehouse and continued emptying out the van with material he picked up 
during the day. 
 
When I went to the warehouse to continue moving desktops to DRMO, 
[Applicant] walked up to me very aggressively and pointed to the office and 
said ‘I just want to smack the piss out of her.’ Without any hesitation, I 
responded with ‘Who, [Witness X]?’ After questioning him about why he 
would say that, he explained to me that [Witness X] runs her mouth to much 
and has no reason to continue telling [Mr. B] what happens in the 
warehouse. [Applicant] assumed that the reason [Mr. B] came down the 
other day was because [Witness X] mentioned to [Mr. B] that [Applicant] 
had been sleeping during the day. In actuality, [Mr. B] came to the 
warehouse to talk to me about MAC reports.  
 
 Witness X testified that after Applicant made the statement about “active shooter” 
she was scared, and she attempted to contact Mr. B because she wanted to get out of 
the office. She sent him a text stating Applicant was making inappropriate comments.9  
 
 Mr. W met with Mr. B on October 21, 2015, to discuss performance issues related 
to Applicant. During the meeting, Mr. B received Witness X’s text stating Applicant was 
making inappropriate comments. When Mr. B asked as to what, she replied “Active 
Shooter.” Mr. W left the meeting and proceeded to the warehouse. When he arrived at 
the warehouse, Witness X and Employee Y were in the parking lot leaving the warehouse. 
They explained to Mr. W that Applicant was angry and making threats. Mr. W inquired 
about the “active shooter” statement and was told by both that Applicant was angry and 
made the threat. Employee Y mentioned the comment that Applicant told her he was 
going to “slap the piss out of Witness X.” Mr. W noted that both were visibly upset.10 
 
 Mr. W met with Applicant and counseled him about sleeping at work and several 
other matters. Mr. W did not initially bring up the “active shooter” comment and was 
waiting to see if Applicant would do so on his own.11 He did not. Mr. W stated: 
 
I stated I had heard the term “Active Shooter,” was used by him and asked 
if he had said it or not. He said “yes” he had said active shooter, it was not 
directed at anyone in specific only that he was angry over the issues that 
occurred that day and he was not actually threatening anyone. I explained 
the statement was completely inappropriate and even stating it without any 
threat intended was not acceptable behavior. I told him I had seen both 
[Witness X] and [Employee Y] as I arrived and they appeared visibly shaken 
and upset. I stated perhaps an apology was appropriate. I required no 
                                                          
9 Tr. 31, 48; GE 3. 
 
10 Tr. 33, 39-40, 48-51, 56. 
 
11 Tr. 56; GE 3. 
 
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further information and when [Applicant] asked, I did not state whether he 
would be terminated or not. I simply stated it was a possibility. With his 
response, the counseling session was over and I proceed to the OCIO 
Conference room to meet with [Mr. B].12  
 
 Mr. W met with Mr. B, Witness X, and Employee Y immediately after the counseling 
session with Applicant.13 In Mr. W’s incident report he stated:  
 
I relayed my first impression and listened to [Witness X] and [Employee Y’s] 
perception of the threat. Both relayed their perception was that it was real, 
or could be real. [Mr. B] indicated [Applicant] was to be removed from the 
project.14 
 
 Witness X said she received seven phone calls and text messages within a ten-
minute time span while she was still in the conference room with Mr. B, Mr. W, and 
Employee Y from Applicant asking that she call him. She did not respond. About twenty 
minutes later she received a text message from Applicant saying “Thanks I’m fired.”15 He 
also attempted to contact her by phone in 2016, but instead talked to Witness X’s 
husband. She has blocked his number. She testified she was very scared and hesitant to 
be in the same building with him. She said she agreed to testify because she decided if 
she did not then she was not doing her part. She is afraid he will gain access to the place 
where she works, and she is afraid to see him. When cross-examined, she confirmed that 
there was no one in the warehouse for him to direct his active shooter comment to. She 
confirmed that Applicant was referring to Mr. B when he said he would have an active 
shooter on his hands. She testified that she felt like Applicant was going to get his gun 
and his comments were directed toward both Mr. B and those in the office. Applicant was 
standing next to Witness X when he made the comments.16 
 
 Applicant testified that he maintains a weapon as part of his second job, but it kept 
on the premises at that location. Applicant testified that he had a discussion with Mr. B 
and was told Mr. W would be talking with him. He admitted to sleeping during his 
lunchbreak, but denied other performance issues. He left his meeting with Mr. B and went 
to the warehouse.17  
 
 Applicant testified he was speaking to a Marine in the warehouse and they were 
discussing active shooter training. He believed Employee Y heard the conversation. He 
                                                          
12 GE 3 pages 1-2. 
 
13 GE 3. 
 
14 GE 3 pages 1-2. 
 
15 Tr. 51-52; GE 3 page 7. 
 
16 Tr. 34-37, 45-47; GE 3. 
 
17 Tr. 65-69. 
 
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surmised that Employee Y told Witness X about the conversation. He said Employee Y 
then returned and asked him what was going on. He stated that he told her that he 
believed Witness X told Mr. B about him sleeping at his desk. Her response was that 
Applicant always sleeps at his desk. Employee Y then left with Witness X. Applicant 
testified that Witness X was not present when he was talking to the Marine, and she would 
not have been able to hear his conversation.18  
 
 Applicant testified that the Marine, with whom he was having the discussion about 
active shooter training, was returning equipment to the warehouse. The Marine was 
required to log the equipment in and out and sign his name to a log. Applicant did not 
provide the name of the Marine to corroborate his statement.19 
 
 Applicant was then contacted by Mr. W. When Mr. W told him to apologize to 
Witness X and Employee Y, Applicant did not know the reason for that request. He 
testified he was not angry or agitated. His demeanor is always “happy go lucky.”20 He 
was a little upset with Mr. B. He concurred that Witness X was in a different room and 
would not have been able to hear the conversation with the Marine.21  
 
 Applicant testified that he did not mention “active shooter” to Witness X and 
Employee Y. He does not know why Witness X would be frightened as they had been 
friends and attended family social gatherings. He denied he said he wanted to slap 
Witness X. He believe both Witness X and Employee Y misunderstood the active shooter 
issue. He said he did not threaten anyone.22  
 
 There is no mention of the Marine in the incident report or in the email Mr. W sent 
to Mr. B days later. Applicant does not know why Mr. W did not include it.23  
 
 Applicant testified that Witness X is lying. He has no idea why. He believes 
Employee Y overheard his conversation with the Marine, went and told Witness X. He 
testified that Employee Y was lying in her statement because she wanted his job. She 
was also lying when she said that Applicant stated he wanted to slap Witness X. When 
asked if Employee Y was intentionally sabotaging him so he would not get her position, 
he testified, “yes.”24 Witness X was lying because “I think when she came back there and 
                                                          
18 Tr. 69-74. 
 
19 Tr. 101-102. 
 
20 Tr. 76.  
 
21 Tr. 69-72.  
 
22 Tr. 69. 
 
23 Tr. 110-119. 
 
24 Tr. 110 
 
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mentioned active shooter, I think it agitated her due to the fact that maybe she was 
emotional. I don’t know.”25 
 
 In Applicant’s answer to the SOR, he stated his conversation with the Marine must 
have been overheard, misunderstood, and taken out of context by coworkers. He stated, 
“I was terminated without a chance to explain what had occurred.”26 
 
 Applicant’s pastor testified on his behalf. He has known Applicant for ten years and 
believes he is honest. Applicant is part of a ministerial team that teaches bible study and 
spiritual awareness. The witness was unaware of the nature of Applicant’s discharge from 
the service. Another witness testified that he has known Applicant for three years. He is 
his supervisor at his second job. Applicant has received numerous accolades from senior 
officials at this job. His demeanor is outstanding.27  
 
 Applicant provided copies of achievement awards and certificates of training. He 
provided character letters stating he is approachable, professional, dependable, loyal, 
responsible, helpful, respectful, dedicated, courteous, generous, organized, prepared, 
and self-motivated.28  
 
Policies 
 
 When evaluating an applicant’s national security eligibility, the administrative judge 
must consider the AG. In addition to brief introductory explanations for each guideline, 
the adjudicative guidelines list potentially disqualifying conditions and mitigating 
conditions, which are used 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, these guidelines are applied in conjunction with the 
factors listed in 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 
“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. 
 
The protection of the national security is the paramount consideration. AG ¶ 2(b) 
requires that “[a]ny doubt concerning personnel being considered for national security 
eligibility will be resolved in favor of the national security.” In reaching this decision, I have 
                                                          
25 Tr. 73, 107, 110-119. 
 
26 Answer to SOR.  
 
27 Tr. 123-140. 
 
28 Answer to SOR.  
 
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drawn only those conclusions that are reasonable, logical, and based on the evidence 
contained in the record. Likewise, I have avoided drawing inferences grounded on mere 
speculation or conjecture. 
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Directive ¶ E3.1.15 states an “applicant is 
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 
mitigate facts admitted by applicant or proven by Department Counsel, and has the 
ultimate burden of persuasion as to obtaining a favorable security 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 
that an applicant may deliberately or inadvertently fail to 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. 
 
Section 7 of EO 10865 provides that decisions shall be “in terms of the national 
interest and shall in no sense be a determination as to the loyalty of the applicant 
concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access 
to classified or sensitive information).  
 
Analysis 
 
Guideline E, Personal Conduct 
AG ¶ 15 expresses 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.  
AG ¶ 16 describes conditions that could raise a security concern and may be 
disqualifying. I find the following potentially applicable:  
 
(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 individual 
 
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may not properly safeguard classified or sensitive information. This 
includes, but is not limited to, considerations of: … (2) any disruptive, 
violent, or other inappropriate behavior. 
 
Applicant was terminated from his position as a contractor in 2015 for aggressive 
behavior. He reportedly made threats of bodily harm and general threats using the term 
“active shooter.” There is credible evidence that he threatened to slap a coworker. He 
was angry because he was being counseled for sleeping at work and mentioned “active 
shooter.” The evidence is sufficient to raise the above disqualifying condition. 
 
 The guideline also includes conditions that could mitigate security concerns arising 
from personal conduct. I have considered the following mitigating conditions under AG ¶ 
17: 
 
(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; and 
 
(f) the information was unsubstantiated or from a source of questionable 
reliability.  
 
Both Witness X and Employee Y made written statements at or about the time the 
incident occurred. Mr. W’s summary of the events that transpired are consistent with both 
Witness X and Employee Y. Witness X credibly testified and was cross-examined. I did 
not find Applicant’s testimony credible. The evidence was reliable and sufficiently 
substantiated the allegation. I find AG ¶ 17(f) does not apply. 
 
Applicant admitted to Mr. W that he said the words “active shooter.” There is no 
mention in Mr. W’s summary or his email to Mr. B that Applicant told him that he was 
talking to a Marine when he said it. To the contrary, he admitted to Mr. W that he said the 
term, but did not intend to make a threat. In today’s environment, and in the wake of 
shootings on military bases, school shootings, and shootings at nightclubs, there are 
serious concerns when certain words are said, even in jest, which could be cause for 
alarm. The public is told to report anything suspicious and to be vigilant. Witness X was 
scared, and she and Employee Y were upset when they noticed Applicant was angry and 
used the words. His statement that he wanted to slap Witness X was threatening and 
inappropriate. Applicant’s conduct is not minor and it casts doubt on his reliability and 
trustworthiness. It raises serious concerns about his judgment. I find AG ¶ 17(c) does not 
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 
 
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conduct and all the 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. 
 
 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 the 
facts and circumstances surrounding this case. I have incorporated my comments under 
Guideline E in my whole-person analysis. Some of the factors in AG ¶ 2(d) were 
addressed under that guideline, but some warrant additional comment. 
 
Applicant is 45 years old. He did not meet his burden of persuasion. His termination 
from his contractor’s job because of aggressive behavior and threating words is serious. 
The record evidence leaves me with questions and doubts as to Applicant’s eligibility and 
suitability for a security clearance. For all these reasons, I conclude Applicant failed to 
mitigate the security concerns arising under Guideline E, personal conduct.  
 
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  
   
 
 
 
 
 
 
 
 
 
 
 
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Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national security to grant Applicant’s eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
                                                     
_____________________________ 
Carol G. Ricciardello 
Administrative Judge