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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
[REDACTED]  ) ISCR Case No. 15-08183 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Ross Hyams, Esq., Department Counsel 
For Applicant: Ronald C. Sykstus, Esq. 
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Decision 
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HESS, Stephanie C., Administrative Judge: 
This case involves security concerns raised under Guideline J (Criminal Conduct). 
Applicant has mitigated the security concerns raised by his 2012 arrest for felony 
aggravated child abuse. Eligibility for access to classified information is granted. 
Statement of the Case 
Applicant submitted a security clearance application (e-QIP) on May 21, 2013. On 
December 23, 2016, the Department of Defense (DOD) sent him a Statement of Reasons 
(SOR), alleging security concerns under Guideline J. The DOD acted under Executive 
Order (Ex. Or.) 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) implemented by the DOD on September 1, 2006.  
Applicant answered the SOR and requested a hearing before an administrative 
judge. Department Counsel was ready to proceed on February 22, 2017, and the case 
was assigned to me on March 20, 2018. On May 21, 2018, the Defense Office of Hearings 
and Appeals (DOHA) notified Applicant that the hearing was scheduled for June 6, 2018. 
03/14/2019
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I convened the hearing as scheduled. Government Exhibits (GX) 1 through 4 were 
admitted in evidence without objection. Applicant testified, submitted Applicant’s Exhibits 
(AX) A through Q, which were admitted without objection, and called four witnesses. 
DOHA received the transcript (Tr.) on June 14, 2018. 
 
The SOR was issued under the AG implemented on September 1, 2006. The DOD 
implemented the amended AG on June 8, 2017, while this decision was pending. This 
decision will be decided based on the amended AG effective June 8, 2017.  
  
Findings of Fact 
 
Applicant is a 52-year-old engineering manager currently employed by a defense 
contractor since October 2015, and employed in the defense industry since 1993. He has 
held a clearance since 1996. He earned a bachelor of science degree in mathematics in 
1993. He and his current wife married in 2004. They have a blended family with three 
children ages 19, 18, and 11. (GX 1.)  
 
The SOR alleges under Guideline J that Applicant was arrested in October 2012 
and charged with felony aggravated child abuse. The arrest was based on accusations 
made by Applicant’s oldest son and Applicant’s ex-wife. Applicant admits that he was 
arrested, but denies that he committed any criminal act. 
 
Applicant and his ex-wife married in 1996 and divorced in November 2004. At the 
time of the divorce, Applicant and his ex-wife had a 5-year-old son. Following the divorce, 
Applicant and his ex-wife have repeatedly returned to court over issues of custody and 
child support. Their relationship is contentious, at best. (AX A - AX E.) 
 
In October 2012, Applicant and his ex-wife had joint custody of their 12-year-old 
son. At the request of his ex-wife, Applicant went to her house to discipline their son. 
Applicant’s ex-wife met Applicant in the driveway and showed him marks on her wrists 
where their son had grabbed her while she was trying to punish him for failing math. 
Applicant entered the house and confronted his son. Applicant, in the presence of his ex-
wife, removed his belt and hit his son three times with it for being disrespectful to his 
mother. Applicant further told his son that he would not be permitted to participate in any 
extracurricular activities until his math grade improved. (Tr. 28-31.) 
 
The following week, Applicant had custody of his son. Applicant learned from a 
friend of his daughter’s that Applicant’s son had posted, “I hate my f-ing dad’s guts” on a 
social media account. Applicant was distressed by the post, but was also distressed 
because he did not allow his children to have social media accounts. (Tr. 32-33.) 
 
Applicant logged in to the site and pulled up his son’s post. Applicant showed the 
post to his son and demanded that his son read the post aloud. His son was clearly afraid, 
and refused to read the post. Applicant “popped” his son in the back of the head and 
again demanded that his son read the post aloud. His son refused. Applicant grabbed his 
son by the front of the shirt and catching his son’s leather necklace, a scuffle ensued, and 
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Applicant’s son ended up on the kitchen floor, screaming and crying. Applicant told his 
son to calm down and go to bed. (Tr. 32-36.) 
 
The next morning, Applicant’s son wore a shirt buttoned to the neck to school. In 
the early afternoon, Applicant got a telephone call informing him that he needed to go to 
the county’s child advocacy center for some issues with his son. When Applicant arrived, 
his ex-wife’s car was already there. Applicant was met by county officers who wanted to 
discuss aggravated child abuse charges with Applicant. Applicant’s ex-wife had told the 
officers about the incident the night before, as well as the spanking incident the previous 
week, which combined, rose to the level of felony aggravated child abuse. (Tr. 36-40.) 
 
Applicant was shown photographs of his son’s neck which had multiple red marks 
on it. Applicant did not see any marks on his son’s neck following the scuffle or the next 
morning because of his son’s fully buttoned shirt, but believes they were possibly caused 
in part by the leather necklace, but were primarily self-inflicted by his son. (Tr. 90-91; GX 
2; Tr. 61-63.) 
 
Applicant was indicted by a grand jury, arrested, and charged with felony 
aggravated child abuse. (GX 4.) He properly reported the arrest to his facility security 
officer who instructed Applicant to keep the security office informed. Applicant’s ex-wife 
immediately filed for child support and sole custody of their son. Following the indictment, 
the contract on which Applicant was working went to another contractor and Applicant 
was laid off. Despite submitting hundreds of job applications, Applicant was unemployed 
for approximately 11 months. (Tr. 38-41.)   
 
After approximately two years, in September 2014, on the advice of his attorney, 
Applicant pled guilty to third-degree assault, a misdemeanor. He was sentenced to one 
year in prison, which was suspended for two years; two years’ supervised probation; a 
$500 fine; $250 restitution; and 40 hours community service. Applicant was also required 
to complete: a domestic violence program; a parenting program; an anger management 
program; and undergo an assessment for drug or alcohol abuse. A protective order in 
Applicant’s son’s favor was entered against Applicant which required him to have no 
contact with his son. (GX 4.) Applicant completed restitution in March 2016, all other court 
requirements between 2013 and 2015, and was released from probation without violation 
in October 2015. (AX F - AX J.) Applicant has not had any contact with his son since 
2012. (Tr. 40-41.) 
 
Applicant’s wife, who was present during the incident with Applicant’s son, 
recounted the events in accord with Applicant. The following day, she met Applicant at 
the child advocacy center, and was interviewed and gave a written statement to the police 
wherein she emphatically stated that Applicant had not abused his son. Applicant’s wife 
was shown pictures of the marks on Applicant’s son’s neck, and was shocked. She 
testified that there were no markings or injuries on Applicant’s son’s neck when he went 
to bed after the incident. (Tr. 77-85.) She further testified to the strength of character of 
Applicant, and stated that Applicant is a devoted father to all of their children and would 
never abuse any of them. (Tr. 75-76.)  
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Applicant’s mother testified that Applicant has never been an overly strict 
disciplinarian, and has been a very involved father for all of his children. (Tr. 100-102.) 
Applicant’s friend, who is also a pastor, stated that Applicant discussed the situation with 
his son with him, and that Applicant was deeply affected by the situation. (Tr. 107.) 
Applicant’s friend of over 13 years, who is a public school nurse and was previously an 
emergency room nurse, has witnessed victims of child abuse. She has observed 
Applicant and his wife around all of their children and has never witnessed any type or 
pattern of abuse in their household. (Tr. 112 – 113.) 
 
Applicant’s testimony was credible and remorseful. The summary of Applicant’s 
personal subject interview (PSI) and his Answer are consistent with his testimony and his 
wife’s testimony. Applicant has never been accused of any other abuse. Applicant wrote 
a letter to his son at the time of the incident stating “I’m here for you.” He has maintained 
the same cell phone numbers and hopes and prays that someday his son will contact 
him. (Tr. 66.) 
  
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President 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.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
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.  
 
Eligibility for a security clearance is predicated upon the applicant’s meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available and reliable information about the person, 
past and present, favorable and unfavorable. 
 
 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 about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “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. Thus, a decision to deny a security clearance is merely an indication the 
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applicant 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 criteria 
listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 
1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).  
 
 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 burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 01-
20700 at 3 (App. Bd. Dec. 19, 2002). “[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 
 
The concern under Guideline J (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.  
 
The following disqualifying condition applies under this guideline:  
 
AG ¶ 31(b) evidence (including, but not limited to, a credible allegation, 
admission, and matters of official record) of criminal conduct, regardless of 
whether the person was formally charged, formally prosecuted, or 
convicted. 
 
 
The following mitigating conditions are potentially applicable: 
 
AG ¶ 32(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 
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AG ¶ 32(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 was indicted for felony aggravated child abuse. He later pled guilty to 
third-degree assault, a misdemeanor. He has not had any contact with his son since 2012. 
He completed all court-ordered requirements and was released from probation without 
violation in 2015. Applicant admits that he spanked him on one occasion and that he 
smacked the back of his son’s head and grabbed him up out of the chair by the front of 
his shirt on another occasion. There is no history of reported abuse prior to these two 
incidents that occurred in 2012, nor are there any more recent allegations of any type of 
abuse of Applicant’s other two children. These two incidents with Applicant’s son occurred 
more than six years ago under circumstances that are not likely to recur. The incidents 
do not cast doubt on Applicant’s current reliability, trustworthiness, or good judgment. 
Since 2012, Applicant paid restitution, successfully completed all requirements of 
probation, has regained employment with a defense contractor, and continues to be a 
youth-sports coach in his community. He regrets the loss of his relationship with his son 
and hopes he will contact him in the future. AG ¶¶ 32(a) and 32(d) apply. 
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an 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. An administrative judge should consider the nine adjudicative process 
factors listed at AG ¶ 2(a).  
 
Applicant has held a security clearance since 1996. He properly reported his arrest 
to his employer. Applicant is remorseful for his past conduct. 
 
After weighing the disqualifying and mitigating conditions under Guideline J, and 
evaluating all the evidence in the context of the whole person, I conclude Applicant has 
mitigated the security concerns raised by his arrest. Accordingly, I conclude he has 
carried his burden of showing that it is clearly consistent with the national interest to grant 
him eligibility for access to classified information. 
 
 
 
 
 
 
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Formal Findings 
 
As required by section E3.1.25 of Enclosure 3 of the Directive, I make the following 
formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline J (Criminal Conduct)  FOR APPLICANT 
 
  Subparagraph 1.a:      For Applicant 
  
Conclusion 
 
 I conclude that it is clearly consistent with the national interest to grant Applicant’s 
eligibility for a security clearance. Eligibility for access to classified information is granted. 
 
 
 
Stephanie C. Hess 
Administrative Judge