1 
         DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
)
) CAC Case No. 17-04078 
)
Applicant for CAC Eligibility ) 
Appearances 
For Government: Jeff Nagel, Esq., Department Counsel 
For Applicant: Steven Krupa, Esq. 
______________ 
Decision 
______________ 
HEINTZELMAN, Caroline E., Administrative Judge: 
Applicant has mitigated the misconduct or negligence in employment and 
material, intentional false statement, deception, or fraud eligibility concerns. CAC 
eligibility is granted. 
Statement of the Case 
On January 19, 2018, the Department of Defense (DOD) issued a Statement of 
Reasons (SOR) to Applicant, detailing concerns about her eligibility for a Common 
Access Card (CAC). The DOD found that granting Applicant CAC eligibility posed an 
unacceptable risk. The action was taken in accordance with Homeland Security 
Presidential Directive 12, Policy for a Common Identification Standard for Federal 
Employees and Contractors (August 27, 2004), and was based on the Adjudicative 
Standards found in DoD Instruction 5200.46, DoD Investigative and Adjudicative 
Guidance for Issuing the Common Access Card (September 9, 2014) (Instruction) and 
the procedures set out in Enclosure 3 of DoD Directive 5220.6, Defense Industrial 
Personnel Security Clearance Review Program (January 2, 1992), as amended 
(Directive). The SOR alleges eligibility concerns under the Supplemental Adjudicative 
Standards (SAS) set out in Enclosure 4, Appendix 2 of the Instruction. The specific 
concerns were alleged under the standards for Misconduct or Negligence in 
12/21/2018
 
2 
Employment (SAS ¶ 1) and Material, Intentional False Statement, Deception, or Fraud 
(SAS ¶ 3).  
 
Applicant responded to the SOR on January 24, 2018 (Answer). She denied all 
the allegations and requested a hearing before a Defense Office of Hearings and 
Appeals administrative judge. The case was assigned to me on October 3, 2018, and I 
issued an order to both parties to produce their documentary evidence by November 2, 
2018. On October 24, 2018, DOHA notified Applicant and her counsel that the hearing 
was scheduled for November 15, 2018. I conducted the hearing as scheduled. 
Department Counsel submitted Government Exhibits (GE) 1 through 3, which were 
admitted without objection. Applicant testified, and presented Applicant Exhibits (AE) A 
through H, which were admitted without objection. DOHA received the transcript (Tr.) on 
December 3, 2018, and the record closed.  
 
Findings of Fact 
 
 Applicant is 33 years old, single, and has an eleven-year-old daughter. In 2005 
she completed a dental assistant program, and since then she has worked as a 
registered dental assistant. Since January 2018, Applicant has worked at a large 
military installation as an oral surgical assistant. This is her first application for CAC 
eligibility, and it is required for her employment. (Tr. 15-17, 32-33)  
 
In October 2016, Applicant started working as a licensed dental assistant for a 
private dental office. The clinic served underprivileged people in State A, and the state 
reimbursed the owner of the clinic for services it provided. The owner of the clinic was 
not a dentist. In April 2017, the owner ordered Applicant to take additional x-rays for a 
patient. The supervising dentist told Applicant that additional x-rays were unnecessary 
for the treatment of the patient. After Applicant refused to take the x-rays, her employer 
used profane language toward her and ordered her to leave the facility. (Tr. at 17-20; 
Answer; GE 3) 
 
In April 2017, after Applicant’s employment was terminated, she filed a claim for 
unemployment compensation with State A’s Unemployment Security Department 
(USD). USD interviewed Applicant and her former employer as part of its investigation. 
Although her former employer reported that she was fired for insubordination, USD 
determined on May 9, 2017, that Applicant “did not deliberately refuse to follow 
reasonable directions or instructions from [her] employer. [Her] actions were not 
misconduct.” USD sent this determination to Applicant and her former employer. (Tr. at 
20-22; AE A) Additionally, Applicant filed a whistle-blower complaint with State A’s 
Department of Health and Dental Quality Assurance Commission (DQAC) against both 
the owner of the clinic and his wife, based upon their business practices and how they 
were billing State A. (Tr. at 26-28, 33-34; AE H) 
 
Shortly after her employment was terminated, the supervising dentist Applicant 
worked with at the private clinic wrote a letter of recommendation for her. He found her 
to be “hardworking, responsible and very dependable.” He would not hesitate to hire her 
in the future. (AE B) 
 
3 
In early 2017, prior to leaving the private clinic, Applicant started looking for a 
new position as a dental assistant. She completed a Standard Form 85 (SF 85) on April 
5, 2017, and listed her employment above. She disclosed that she worked for the 
private clinic “from 10/2016 to present.” (Tr. 22, 29; AE C) 
 
In August 2017, Applicant completed an electronic questionnaire for 
investigations processing (e-QIP) and a declaration for federal employment (DFE). (Tr. 
at 25-26, 31; GE 1; GE 2) An employee of Applicant’s current company told Applicant to 
use the information in her SF 85 when she completed the e-QIP. Applicant did not hide 
the April 2017 termination from her company. (Tr. 24, 34) 
 
In the DFE, Applicant did not disclose that she was terminated in April 2017 from 
her previous employer. Applicant did disclose other derogatory information, including an 
arrest for driving under the influence and terminations from employers in 2014 and 
2015. (Tr. at 31-32; GE 2)  
 
In September 2017, Applicant’s former employer completed a governmental 
investigative request for employment data and supervisor information (INV FORM 41). 
He reported that Applicant was fired for unfavorable employment or conduct because 
she refused to take x-rays for a patient. (GE 3)  
 
 At the hearing, Applicant testified that she was not trying to be evasive or 
misleading when she failed to disclose the April 2017 termination in her August 2017 
DFE. (Tr. at 32) She believed her former employer was engaging in questionable 
conduct and subjecting underprivileged patients to subpar treatment to save his 
business money. Additionally, she did not believe that her termination was legitimate. 
(Tr. at 26, 34)  
 
 Applicant submitted numerous training certificates. In March 2018, the military 
command that she supports gave her an award recognizing her performance. 
Additionally, she submitted nine letters of recommendation from individuals with whom 
she currently works. These letters were written by civilian and active duty colleagues 
and her current managing supervisor. She is described as hardworking, honest, reliable, 
and professional. (Tr. at 16-; AE E; AE F; AE G) Applicant testified that serving her 
military clients is important to her, and she wants to continue to do her job. (Tr. at 29-30, 
36) 
 
Policies 
 
Every CAC eligibility decision must be a fair and impartial overall commonsense 
decision based on all available evidence, both favorable and unfavorable. The specific 
concerns, standards, disqualifying conditions, and mitigating circumstances are listed in 
the Instruction, Enclosure 4, Appendix 1, Basic Adjudicative Standards (BAS), and 
Appendix 2, Supplemental Adjudicative Standards (SAS). The overriding factor for CAC 
eligibility decisions is “unacceptable risk,” which is defined as follows: 
 
 
4 
A threat to the life, safety, or health of employees, contractors, vendors, or 
visitors; to the U.S. Government physical assets or information systems; to 
personal property; to records, including classified, privileged, proprietary, 
financial, and medical records, or to the privacy rights established by The 
Privacy Act of 1974, as amended, or other law that is deemed 
unacceptable when making risk management determinations. 
 
(Instruction, Glossary, Part II at 28.) 
 
The objective of the CAC credentialing process is the fair-minded commonsense 
assessment of a person’s life to make an affirmative determination that the person is an 
acceptable risk to have CAC eligibility. A CAC will not be issued if there is a reasonable 
basis to believe that issuance of a CAC poses an unacceptable risk. Each case must be 
judged on its own merits, taking into consideration all relevant circumstances, and 
applying sound judgment, mature thinking, and careful analysis.  
 
Factors to be applied consistently to all information available include: (1) the 
nature and seriousness of the conduct; (2) the circumstances surrounding the conduct; 
(3) the recency and frequency of the conduct; (4) the individual’s age and maturity at the 
time of the conduct; (5) contributing external conditions; and (6) the absence or 
presence of efforts towards rehabilitation. (Instruction, Enclosure 4, paragraph 1.b.)  
 
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 ultimate burden of persuasion to obtain CAC eligibility.  
 
Analysis 
 
SAS ¶ 1, Misconduct or Negligence in Employment: 
 
 The concern under this standard is set out in SAS ¶ 1.a: “A CAC will not be 
issued to a person if there is a reasonable basis to believe, based on the individual’s 
misconduct or negligence in employment, that issuance of a CAC poses an 
unacceptable risk.” 
  
 The following disqualifying conditions are potentially applicable under is SAS ¶ 
1.b: 
 
(1) A previous history of intentional wrongdoing on the job, disruptive, 
violent, or other acts that may pose an unacceptable risk to people, 
property, or information systems.  
 
(2) A pattern of dishonesty or rule violations in the workplace which put 
people, property or information at risk. 
 
 
5 
 In this case, Applicant was terminated by her employer after she refused to take 
x-rays of a patient. Her employer owned the dental practice, but was not a dentist; as 
such, he was not authorized to give the order. Additionally, State A found that she did 
not conduct misconduct and awarded her unemployment benefits. Under these 
circumstances, none of the disqualifying conditions are applicable. 
 
SAS ¶ 3, Material, Intentional False Statement, Deception, or Fraud 
 
 The concern under this guideline is set out in SAS ¶ 3.a: “The individual’s 
conduct involving questionable judgment, lack of candor, or unwillingness to comply 
with rules and regulations can raise questions about an individual’s honesty, reliability, 
trustworthiness, and put people, property, or information systems at risk.”  
 
The relevant disqualifying condition is SAS ¶ 3.b:  
 
[C]onditions that may be disqualifying include material, intentional 
falsification, deception or fraud related to answers or information provided 
during the employment process for the current or a prior federal or 
contract employment (e.g., on the employment application or other 
employment, appointment or investigative documents, or during 
interviews). 
 
 Applicant’s failure to disclose the termination was unintentional, it is clear from 
the record evidence that she did disclose other derogatory information in her DFE and 
e-QIP. The record evidence also demonstrates that Applicant’s former employer was 
questionable in his business practices. State A found in her favor that she did not 
commit misconduct in the workplace. Applicant’s former supervising dentist and multiple 
current colleagues wrote glowing letters of recommendation for Applicant. Under these 
circumstances, the disqualifying condition is not applicable. 
 
Formal Findings 
 
 My formal findings on the allegations set forth in the SOR are: 
 
 Paragraph 1 (Misconduct or Negligence in Employment):    
        FOR APPLICANT 
 
  Subparagraph 1.a:    For Applicant 
 
Paragraph 2 (Material, Intentional False Statement, 
  Deception, or Fraud):   FOR APPLICANT 
 
  Subparagraph 2.a:    For Applicant 
 
 
 
 
 
6 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, I 
conclude that giving Applicant a CAC is not a risk. CAC eligibility is granted. 
 
 
      _________________________ 
CAROLINE E. HEINTZELMAN 
Administrative Judge