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       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
) ISCR Case No. 17-02414 
)
)
Applicant for Security Clearance ) 
Appearances 
For Government: Allison O’Connell, Esq., Department Counsel 
For Applicant: Leon J. Schachter, Esq. 
______________ 
Decision 
______________ 
CREAN, Thomas M., Administrative Judge: 
Based on a review of the pleadings, exhibits, and testimony, I find that Applicant 
mitigated one, but not both, of the personal conduct security concerns. Eligibility for 
access to classified information is denied. 
Statement of the Case 
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on March 6, 2015, to retain and upgrade a security clearance required for his 
duties with a defense contractor. The Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns for personal conduct 
(Guideline E) on July 27, 2017. 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 in the DOD on June 8, 2017.  
Applicant provided a detailed answer to the SOR on September 21, 2017. He 
admitted both allegations under Guideline E. Department Counsel was prepared to 
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proceed on October 19, 2017. I was assigned the case on April 13, 2018, the Defense 
Office of Hearings and Appeals sent a Notice of Hearing on September 10, 2018, for a 
hearing on October 10, 2018. I convened the case as scheduled. DOHA received the 
transcript of the hearing (Tr.) on October 19, 2018.  
 
The Government introduced two exhibits I marked as Government Exhibits (GX) 
1 and 2. Applicant objected to Government Exhibit 2, the report of a polygraph 
examination, as a report of investigation requiring an authenticating witness. I 
determined that the document was admissible and it was received as Government 
Exhibit 2. (Tr. 13-18) Applicant and two witnesses testified. Applicant introduced eight 
exhibits which I marked and admitted into the record without objection as Applicant 
Exhibits (AX) A through H.  
 
Findings of Fact 
 
 After a thorough review of the pleadings, exhibits, and testimony, I make 
additional findings of fact. Applicant is 47 years old. He has a Bachelor’s Degree in 
History awarded in 1995, and a Bachelor’s Degree in information technology awarded in 
1998. He is taking classes for a Master’s degree in Information Systems Engineering. 
He has worked in the information technology field with defense contractors since 
November 1998. He has worked with the same defense contractor in information 
technology since May 2009. He was granted access to classified information in May 
2009. Applicant married in June 1996 and has five children. (Tr. 43-47; GX 1, e-QIP, 
dated March 6, 2015) 
 
The SOR alleges two personal conduct security concerns. SOR 1.a is based on 
Applicant’s failure to return three laptop computers to his children’s private school after 
he performed maintenance on them. He did not inform the school he had the computers 
until late 2014, after revealing the information to his Government agency employer 
during a security clearance interview. SOR 1.b is based on Applicant’s submission of a 
fraudulent letter to his Government Agency employer claiming a debt had been settled. 
Applicant failed to timely inform the Government agency of the fraud after learning the 
letter was fraudulent.  
 
Applicant’s children attended a small private school. Since the school was small 
and private, the school administration enlisted parents to use their expertise to assist 
with needs in the school. Applicant volunteered to assist with information technology 
and computer repair because of his expertise. In early 2008, he started to fix laptop 
computers used by the students that were not working properly. By the time the school 
year was ending in the summer of 2008, he had repaired and returned to the school all 
but three of the computers. Since school was not in session, he could not return the 
three remaining computers. Applicant put them in a safe place in his house where the 
computers could not be accessed by any of his five children with the intent of returning 
them to the school in September. They were out of sight and out of mind and he lost 
track of them. (Tr. 47-48) 
 
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Applicant’s family moved in 2009. Someone, not Applicant, packed up the items 
in the basement for the move. In the winter of 2011, he was helping to unpack some 
moving boxes and discovered the laptops. He was very busy at the time with his job and 
traveling so he did not have time to contact the school to let them know he had the 
computers. He finally contacted the school headmaster in 2014 after the issue was 
raised during a polygraph examination for his security clearance. Based on guidance 
from the headmaster, Applicant disposed of the computers. During the entire time he 
possessed the computers, Applicant did not have an intent to appropriate or use the 
computers for his or his family’s purposes. During the time he had the computers, the 
school never made any inquiry concerning the computers. (Tr. 48-51, 82-85)  
 
Applicant stated at the hearing that the computers had never been used while in 
his possession. However, the polygraph report states that Applicant told the polygraph 
examiner that he used the laptops for his personal use. Applicant stated that the 
polygraph examiner was aggressive at that point in the interview and he thought by 
admitting he used the computers, he could stop the examiner from being aggressive 
and he could relieve his stress. (Tr. 51-62; GX 2, Polygraph Report, dated June 20, 
2017) At the hearing, he denied actually using the laptops. He admitted the computers 
were in his house but that they were out of sight, out of mind. (Tr. 63-64)  
 
Applicant knew in early 2011 that he had a tax lien issue with his 2009 tax return. 
He asked his wife to deal with and resolve the issue since she usually managed the 
family finances. She provided Applicant with documents in 2011 to establish that the 
issue had been dealt with and resolved. By the fall of 2012, Applicant realized that the 
documents his wife provided him concerning the tax lien were false. The tax lien was 
resolved. (Tr. 64-66) 
 
Applicant started processing his paperwork for a top level security clearance in 
November 2011. In January 2013, the security investigators for the first time requested 
that he provide documents concerning a debt in collection that was reduced to a 
judgment by Capital Account for a dentist. (See, Response to SOR, RE: Email 
Confirmation, dated January 28, 2013) He asked his wife for the status of the debt. His 
wife provided him with a document from the dentist that the debt has been resolved. 
(AX H, Letter, dated May 22, 2012) Applicant’s wife prepared the letter in an attempt to 
convince Applicant that she resolved the debt. Even though his wife had previously 
provided him with a false tax document, he only reviewed the letter from the dentist for 
content and not for authenticity. His wife stated that she was under emotional pressure 
at the time she prepared the false letter. She admitted that the letter was false and that 
Applicant had no role in preparing the letter. (Tr. 66-68; AX A, Receipt, dated March 10, 
2015) 
 
Applicant believed the letter to be genuine, and he had no reason to believe his 
wife would again provide him with a false document. However, the debt had not been 
settled at that time. Since Applicant believed the letter to be genuine, he submitted it to 
the security investigator. In late 2013, he decided for some reason to more closely 
scrutinize the letter. By early 2014, it was obvious to Appellant that the letter was 
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fraudulent. He did not confront his wife with the idea that the letter was fraudulent 
because he thought she would deny the letter was fraudulent and the accusation would 
lead to conflicts within their household and marriage. At the time, he also did not 
present the letter as fraudulent to his command or to the security investigators. The debt 
was not settled until March 10, 2015. (Tr.68-73, 76-80; AX B, Affidavit, dated April 10, 
2018)  
 
Applicant took no action on the fraudulent letter from January 2014 until October 
2014. He did not inquire into the status of the account or receive any correspondence 
from the creditor from the time he determined the letter was fraudulent and his 
polygraph examination in October 2014. He did not tell his command or security 
investigators of the fraudulent payment letter until the October 2014 polygraph 
examination. He knew the letter had been submitted as part of the security clearance 
process and could have negative ramifications for his wife and is family. Instead of 
doing what he should have done, he kept it to himself until he was to undergo the 
polygraph examination. During the polygraph examination, he initiated the discussion 
about the fraudulent letter with the polygraph examiner. Applicant admitted his wife 
created the letter but he made the mistake of not reporting it. (Tr. 80-82) 
 
A coworker testified that he has known Applicant since at least 2011 when they 
worked together for their present employer. From 2011 until 2014, he saw Applicant 
daily and served for a time as his supervisor. Since 2014, he sees him at least monthly 
at work and occasionally at social occasions. The witness stated that their employer has 
procedures for an employee to report any mistakes they make. Applicant makes 
mistakes as any employee but he has a reputation as a person who acknowledges and 
timely reports his mistakes. The witness understands the security concerns of the 
Government, and he recommends Applicant be granted a security clearance. The 
witness also provided an affidavit in support of granting Applicant a security clearance 
(Tr. 27-32; AX C, Affidavit) 
 
A project manager for Applicant’s employer testified that Applicant has worked 
for her since July 2016. She also provided an affidavit in support of granting him a 
security clearance. She has a good friendly working relationship with Applicant. 
Applicant is a good technical employee who delivers his work requirements on time or 
ahead of schedule. She testified about an incident where data was copied to the wrong 
media, and Applicant immediately reported the breach and assisted in securing the 
data. She also selected Applicant to work on a special security project. She opined that 
Applicant is trustworthy, hard-working, and technically competent. She has high regard 
for Applicant’s honesty and ability to understand and adhere to security rules. (Tr. 34-
42; AX E, Affidavit) 
 
Applicant also introduced three letters of recommendation. The authors of the 
letters were aware of the Government security concerns. They have known Applicant 
for a few years and worked with or supervise him. They wrote that Applicant is 
trustworthy, honest, reliable, and demonstrates good judgment. He demonstrates good 
character, patriotism, and a willingness to properly manage classified information. They 
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all recommend that he be granted eligibility for access to classified information. (AX D, 
F, and G)  
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the Administrative Guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are useful 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 over-arching adjudicative goal is a fair, impartial and 
common sense 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 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. Under Directive ¶ E3.1.15, the applicant is 
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, 
or mitigate facts admitted by applicant or proven by department counsel. . .” The 
applicant has the burden of persuasion 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 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 information. 
 
 
 
 
 
 
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Analysis 
 
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 and sensitive 
information. Personal conduct is always a security concern because it asks whether the 
person’s past conduct justifies confidence the person can be trusted to properly 
safeguard classified or sensitive information. (AG ¶ 15). 
 Applicant’s failure to timely return computers to his children’s school after repair 
does not raise a security clearance concern. The incident did not raise an issue of 
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules 
and regulations, or question his reliability, trustworthiness or his ability to protect 
classified and sensitive information. The evidence clearly shows that Applicant merely 
forgot about the computers since they were clearly out of sight and out of mind. The 
computers were not used while they were under Applicant’s control. As soon as he 
learned that he had the computers in his possession, Applicant requested guidance 
from the school how to dispose of the computers. I find that SOR allegation 1.a was not 
established as a security concern and that allegation is found for Applicant. 
Applicant’s failure, however, to timely report that a document he submitted during 
his security clearance process was false raises the following disqualifying conditions 
under AG ¶16 (b) (deliberately providing false or misleading information; or concealing 
or omitting information, concerning relevant facts to an employer, investigator, security 
official, competent medical or mental health professional involved in making a 
recommendation relevant to a national security eligibility determination, or other official 
government representative.)  
 I considered the following Personal Conduct Mitigating Conditions under AG ¶17: 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; 
(b) the refusal to cooperate, omission, or concealment was caused or 
significantly contributed to by advice of legal counsel or of a person with 
professional responsibilities for advising or instructing the individual 
specifically concerning security processes 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; and 
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(d) the individual has acknowledged the behavior and obtained counseling 
to change the behavior or taken other positive steps to alleviate the 
stressor, circumstances, or factors that contributed to untrustworthy, 
unreliable, or other appropriate behavior, and such behavior is unlikely to 
recur. 
 The mitigating conditions do not apply. Applicant’s wife drafted an erroneous 
receipt for dental services for him to show during an update on his security clearance to 
establish that the debt had been paid and resolved. Applicant had no role in drafting the 
erroneous receipt and did not know at the time he submitted it that it was a false 
document. Later, he became suspicious that the document was false because his wife 
had previously provided him a false tax document. His wife’s actions placed Applicant in 
a dilemma. He had to choose between revealing his wife’s action and the potential 
resulting consequences for her, and the requirement to be honest and truthful during the 
security clearance process. He chose not to report the false document to his employer 
or the security officials until he knew the truth would surface during a polygraph 
examination. He did not make a prompt good-faith effort to correct the concealment 
before he knew he would be confronted with the facts.  
 I take note that Applicant had a difficult decision to make. He either had to reveal 
his wife’s role in creating a false document or not report that he provided the security 
officials with a false document. He chose not to walk on the side of protecting classified 
information but to hide his wife’s role in creating the false document. In his requirement 
to protect classified or sensitive information, Applicant can very well face a similar 
dilemma. He must always resolve any issue on the side of protecting classified 
information. His decision not to revel the false document raises questions about his 
judgment, lack of candor, dishonesty, reliability, trustworthiness, and ability to protect 
classified or sensitive information. He failed to mitigate the personal conduct security 
concern for not timely revealing that he used a false document. 
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s eligibility for access to classified information 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 
access to classified information must be an overall common-sense 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 considered Applicant’s over 20 
years of working for defense contractors while having access to classified information. 
Applicant’s failure to timely report that he provided a false document during the security 
clearance process shows questionable judgement, untrustworthiness, unreliability, 
unwillingness to comply with rules and regulations, and other characteristics to indicate 
that he may not properly safeguard classified or sensitive information. Applicant was 
faced with a dilemma and had to choose between his family obligations and his role to 
protect classified information. He did not chose the path to protecting classified 
information. The facts in evidence do not mitigate any questions and doubts about 
Applicant’s judgment and his suitability for access to classified information. I conclude 
that Applicant did not mitigate personal conduct security concerns. Eligibility for access 
to classified information is granted. 
 
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:    For Applicant 
 
 Subparagraph 1.b:    Against Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge