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ISCR Case 19-00555 — CASE

ISCR Case 19-00555granted

Case Headnote

ISCR Case No. 19-00555

grantedJan 17, 2020· Hon. Robert Robinson Gales· hearing

Summary

A 40-year-old former schoolteacher, now a project manager at a defense contractor, was granted a security clearance despite allegations under Guideline E (Personal Conduct). The Statement of Reasons detailed multiple accusations of inappropriate behavior towards students during his teaching tenure, spanning from 2009 to 2014. These included yelling, throwing objects, failing to follow Individualized Education Programs, ignoring student requests, and physical actions such as kicking a table and a chair.

Further allegations concerned his employment record, specifically a Plan of Improvement in 2010 and a reported reprimand and suspensions for misconduct. The applicant was also accused of omitting and concealing these incidents when completing his SF-86 in February 2018, by answering "no" to questions about being fired, disciplined for misconduct, or leaving employment due to allegations.

However, the administrative judge found insufficient evidence to substantiate these claims. No documentation supported the allegations of misconduct, and the applicant's decade-long employment as a teacher suggested the claims were misleading or baseless. Additionally, the most recent allegations were nearly six years old, and there was no negative evidence regarding his current job performance. Consequently, the judge granted the security clearance.

Why the Applicant Prevailed

The judge found no documentation supporting the allegations of misconduct against the applicant.
The applicant's decade-long employment as a teacher indicated that the alleged misconduct was either misleading or baseless.
The most recent allegations occurred nearly six years prior, and there was no negative evidence regarding the applicant's current job performance.

Conditions Referenced

Mitigating

AG ¶ 17(c)appliedMitigating Condition 17(c)The behavior was infrequent and unlikely to recur.
AG ¶ 17(f)appliedMitigating Condition 17(f)The information was unsubstantiated or from a source of questionable reliability.

Key Rule Quoted

“Eligibility for access to classified information is granted.”

Procedural Posture

SOR issuedJul 23, 2019
Answer filedAug 13, 2019Applicant elected to have the case decided on the written record.
Hearing held—Decision made based on written record.
Decision dateJan 17, 2020

Cite For

Insufficient Evidence to Support Allegations of Misconduct
Mitigation of Personal Conduct Concerns Under Guideline E
Whole-person Assessment in Security Clearance Determinations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the personal conduct concerns related to allegations of misconduct while serving as a schoolteacher. The formal findings were for the applicant on all allegations under Guideline E, resulting in the granting of eligibility for a security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In 2009, the middle-school management reportedly accused Applicant of misconduct in dealing with his students, not otherwise specified in the SOR, but specified in a report of the U.S. Office of Personnel Management (OPM), as yelling at students; throwing objects at students; failure to follow Individualized Education Program (IEP) accommodation of modifications; ignoring students request for help	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.b	In November 2010, while serving as a schoolteacher, Applicant was reportedly placed on a Plan of Improvement (POI).	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.c	In March 2011, while serving as a schoolteacher, Applicant was reportedly accused of misconduct in dealing with his students, not otherwise specified in the SOR, but specified in the OPM report, as kicking a table where a student had been laying his head while asleep in class; and kicking the chair of a student who was rocking back.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.d	In June 2012, while serving as a schoolteacher, Applicant was reportedly accused of misconduct in dealing with his students, not otherwise specified in the SOR, but specified in the OPM report, as using his forearm to push a student; and for making an inappropriate comment to a student with respect to pushing the student.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.e	In February 2014, while serving as a schoolteacher, Applicant was reportedly accused of misconduct in dealing with his students, not otherwise specified in the SOR, but specified in the OPM report, as stating to a student that 'if I weren’t a teacher I’d punch you in the face.'	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.f	On February 7, 2018, when Applicant completed his SF 86, he responded to certain questions pertaining to his employment activities found in Section 13A – Employment Activities. The most significant questions, and the ones alleged in the SOR, were essentially as follows: In the last seven (7) years, have you: been fired; quit after being told you would be fired; left by mutual agreement following charges or allegations of misconduct; or left by mutual agreement following notice of unsatisfactory performance; and in the last seven (7) years, have you received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security policy. Applicant answered “no” to both questions. He allegedly omitted and concealed his reported reprimand and suspensions for the alleged misconduct in the workplace.	For Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Employment History	Admitted	(b) deliberately providing false information to an investigator or official	—	—
1.g	On February 7, 2018, when Applicant completed his SF 86, he also responded to certain questions pertaining to his employment record found in Section 13C – Employment Record. The most significant questions, associated with employment activities that have not been previously listed in the SF 86, and the ones alleged in the SOR, were essentially as follows: In the last seven (7) years, have you: been fired from a job; quit a job after being told you would be fired; left a job by mutual agreement following charges or allegations of misconduct; left a job by mutual agreement following notice of unsatisfactory performance; and received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security policy. Applicant answered “no” to the questions.	For Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Employment History	Admitted	(b) deliberately providing false information to an investigator or official	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) --- ) ISCR Case No. 19-00555 ) Applicant for Security Clearance ) Appearances For Government: Daniel F. Crowley, Esquire, Department Counsel For Applicant: Pro se 01/17/2020 ______________ Decision ______________ GALES, Robert Robinson, Administrative Judge: Applicant mitigated the security concerns regarding personal conduct. Eligibility for a security clearance is granted.

STATEMENT OF CASE

On February 7, 2018, Applicant applied for a security clearance and submitted a Questionnaire For National Security Positions (SF 86). On an unspecified date, the Defense Office of Hearings and Appeals (DOHA) issued him a set of interrogatories. He responded to those interrogatories on June 6, 2019. On July 23, 2019, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to him, under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended and modified; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended and modified (Directive); and Directive 4 of the Security Executive Agent (SEAD 4), National Security Adjudicative Guidelines (AG) (December 10, 2016) for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position, effective June 8, 2017.

The SOR alleged security concerns under Guideline E (Personal Conduct), and detailed reasons why the DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The SOR recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a notarized statement dated August 13, 2019, Applicant responded to the SOR and elected to have his case decided on the written record in lieu of a hearing. A complete copy of the Government’s file of relevant material (FORM) was mailed to Applicant by DOHA on October 30, 2019, and he was afforded an opportunity, within a period of 30 days, to file objections and submit material in refutation, extenuation, or mitigation. In addition to the FORM, Applicant was furnished a copy of the Directive as well as the Adjudicative Guidelines applicable to his case. Applicant received the FORM on November 12, 2019. His response was due on December 12, 2019. Applicant chose not to respond to the FORM, for as of January 13, 2020, no response had been received. The case was assigned to me on January 13, 2020.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted, with some comments that gave the impression that he was actually disputing some of the aspects of the allegations, nearly all of the factual allegations pertaining to personal conduct (SOR ¶¶ 1.a. through 1.e., and 1.g.). Applicant’s admissions and accompanying comments are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Background

Applicant is a 40-year-old employee of a defense contractor. He has been serving as a project manager with his current employer since June 2014. He previously served as a teacher in a county school system from August 2004 until July 2014. He received a bachelor’s degree in 2003, and a master’s degree on line in 2015. He has never served with the U.S. military. He has never held a security clearance. Applicant was married in 2005. He has two children, born in 2009 and 2011.

Personal Conduct

As noted above, Applicant was a teacher of elective subjects (i.e., music, foreign languages, art, drama, inventions and innovations), as opposed to core subjects (language arts, social studies, science, and mathematics) in the county school system for ten years. During at least a portion of his tenure, Applicant and his middle school principal and assistant principal had disagreements regarding Applicant’s teaching methods and professional conduct, as well as Applicant’s criticisms of their support of an adversarial relationship between core teachers and elective teachers. (Item 4 – Triggered Enhanced Subject Interview, dated October 31, 2018, at 6) As a result of their respective disagreements, each side apparently made accusations against the other, as follows:

SOR ¶ 1.a.: In 2009, the middle-school management (principal or assistant principal) reportedly accused Applicant of misconduct in dealing with his students, not otherwise specified in the SOR, but specified in a report of the U.S. Office of Personnel Management (OPM), as yelling at students; throwing objects at students; failure to follow Individualized Education Program (IEP) accommodation of modifications; ignoring students request for help with classwork; making inappropriate putdowns and sarcastic remarks; and hitting students in the back of the head for mistakes or stupid questions. As a result of the accusations, Applicant reportedly appeared before the school board to defend himself, and he was suspended for three days without pay. (Item 4, at 7) Applicant denied the underlying basis for the accusations, claiming that they were all false, and he indicated that his different and engaging approach with his students was misinterpreted by management. (Item 4, at 7) He conceded that he was suspended, but contended that the event took place in 2011, and that the suspension was for five days. (Item 2 – Answer to the SOR, dated August 13, 2019, at 1) It should be noted that there is no documentation in evidence, such as school disciplinary records, school personnel performance evaluations, school reports of investigation describing the alleged incidents, statements of witnesses, or school board records, upon which the accusations were based or to support the allegations.

SOR ¶ 1.b.: In November 2010, while serving as a schoolteacher, Applicant was reportedly placed on a Plan of Improvement (POI). (Item 4, at 8) Applicant conceded that he received a POI, but contended that it was related to the issues that took place in 2011. (Item 2, at 1) It should be noted that there is no documentation in evidence, such as the POI, upon which the accusation was based or to support the allegation.

SOR ¶ 1.c.: In March 2011, while serving as a schoolteacher, Applicant was reportedly accused of misconduct in dealing with his students, not otherwise specified in the SOR, but specified in the OPM report, as kicking a table where a student had been laying his head while asleep in class; and kicking the chair of a student who was rocking back. As a result of the accusations, Applicant reportedly appeared before the school board to defend himself, and he was suspended for five days without pay and required to attend an anger management class. (Item 4, at 8) Applicant denied the underlying basis for the accusations, claiming that he never kicked a chair, but he conceded that he might hit or bump a table a few times to wake up a sleeping student while in the shop class. (Item 4, at 8) He acknowledged that he completed an online, self-paced 40-hour anger management class. (Item 4, at 8; Item 2, at 1) It should be noted that there is no documentation in evidence, such as school disciplinary records, school personnel performance evaluations, school reports of investigation describing the alleged incidents, statements of witnesses, or school board records, upon which the accusations were based or to support the allegations.

SOR ¶ 1.d.: In June 2012, while serving as a schoolteacher, Applicant was reportedly accused of misconduct in dealing with his students, not otherwise specified in the SOR, but specified in the OPM report, as using his forearm to push a student; and for making an inappropriate comment to a student with respect to pushing the student. It allegedly resulted that the inappropriate comments were founded, but there was no reported result of the other accusation. (Item 4, at 8) The SOR also alleged, as part of the

accusation, that at some point in 2012 or 2013, Applicant received a letter of reprimand for insubordination. Applicant conceded the allegation(s), but contended that the event(s) took place in 2011, as described above. (Item 2, at 1) It should be noted that there is no documentation in evidence, such as school disciplinary records, school personnel performance evaluations, school reports of investigation describing the alleged incidents, or statements of witnesses, upon which the accusations were based or to support the allegations.

SOR ¶ 1.e.: It appears that this allegation is actually a combination of several unrelated allegations. In February 2014, while serving as a schoolteacher, Applicant was reportedly accused of misconduct in dealing with his students, not otherwise specified in the SOR, but specified in the OPM report, as stating to a student that “if I weren’t a teacher I’d punch you in the face.” (Item 4, at 8) It was also alleged that in 2014, Applicant disagreed with his supervisors on duties to which he was assigned; that he was suspended with pay; and that “e]ther the school principal or the superintendent of schools recommended the school board dismiss [Applicant] from [his] teaching position,” and that he then left his position as a schoolteacher to take a private sector job in a different line of work. Applicant denied the accusation of misconduct with a student, claiming that after the student in an 8th grade athletic class flung another student’s folder off the desk and across the room, Applicant commented that the student should be careful because once he gets across the street (to the high school) he would get punched in the face for such conduct. (Item 4, at 8)

Applicant acknowledged that he had disagreements with the principal and assistant principal because they imposed unreasonable extra obligations on elective teachers versus core teachers; they removed students from his class for nearly any reason related to their core classes; they did not give elective teachers sufficient time to eat lunch or plan periods; elective teachers were treated as second-class citizens; and middle-school management made false accusations against him. (Item 4, at 6) Applicant admitted disagreements with management, and indicated that he had initially spoken with the human resources department (HR) about transferring to a different school because of his personality clash with the principal. He claimed that HR told him he could stay on administrative leave until the end of the school year, and that he told HR that he intended to resign. Applicant denied that the school superintendent recommended that the school board dismiss him from his teaching position. (Item 4, at 6-7; Item 2, at 1) It should be noted that there is no documentation in evidence, such as school disciplinary records, school personnel performance evaluations, school reports of investigation describing the alleged incidents, statements of witnesses, school board records, or records from the superintendent of schools, upon which the accusations were based or to support the allegations.

SOR ¶ 1.f.: On February 7, 2018, when Applicant completed his SF 86, he responded to certain questions pertaining to his employment activities found in Section

performance; and in the last seven (7) years, have you received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security policy. Applicant answered “no” to both questions. (Item 3, at 13) He allegedly omitted and concealed his reported reprimand and suspensions for the alleged misconduct in the workplace. He certified that his responses to those questions were “true, complete, and correct” to the best of his knowledge and belief, but, because of his omission and concealment, the response to the second question regarding discipline was, allegedly, false. Applicant denied that he falsified his answer, and steadfastly contended that he resigned to take a new career, and that he was never terminated. (Item 2, at 1)

SOR ¶ 1.g.: On February 7, 2018, when Applicant completed his SF 86, he also responded to certain questions pertaining to his employment record found in Section 13C – Employment Record. The most significant questions, associated with employment activities that have not been previously listed in the SF 86, and the ones alleged in the SOR, were essentially as follows: In the last seven (7) years, have you: been fired from a job; quit a job after being told you would be fired; left a job by mutual agreement following charges or allegations of misconduct; left a job by mutual agreement following notice of unsatisfactory performance; and received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security policy. Applicant answered “no” to the questions. (Item 3, at 14) Applicant denied falsifying the answer, and contended that he had misread the question, and he thought it was the same question as the one referred to in SOR ¶ 1.f. (Item 2, at 1) A close reading of the question clearly specifies that it refers to employment activities that have not been previously listed in the SF 86. Thus, I conclude that it is merely a redundant question that essentially repeats the one in Section 13A.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no 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. The President has authorized the Secretary of Defense or his designee to grant an applicant 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 and modified.)

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the guidelines in SEAD 4. In addition to brief introductory explanations for each guideline, the guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

An administrative judge need not view the guidelines as inflexible, ironclad rules of law. Instead, acknowledging 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. 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 meaningful decision.

In the decision-making process, facts must be established by “substantial evidence.” “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all contrary evidence in the record.” (ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1)) “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 Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR. Once the Government has produced substantial evidence of a disqualifying condition, under Directive ¶ E3.1.15, the applicant has the burden of persuasion to present evidence in refutation, explanation, extenuation or mitigation, sufficient to overcome the doubts raised by the Government’s case. The burden of disproving a mitigating condition never shifts to the Government. (See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005))

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 as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those 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 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. Furthermore, “security clearance determinations should err, if they must, on the side of denials.” (Egan, 484 U.S. at 531)

Clearance decisions must be “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, nothing in this decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has or has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. 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.

ANALYSIS

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:

(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 also includes examples of conditions that could raise security concerns under AG ¶ 16:

(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;

(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; and

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by [any] individual or group. Such conduct includes: (1) engaging in activities which,

if known, could affect the person’s personal, professional, or community standing. . . .

Applicant admittedly had conflicts and disagreements with his principal and assistant principal regarding his duties and responsibilities as a schoolteacher of middle school elective courses; and some of his teaching methods. Nevertheless, despite those conflicts and disagreements, he was retained in his position for a decade, indicating that the alleged misconduct was either misleading, not as bad as presented in the OPM report, or baseless. The alleged facts found in both the OPM report, and as distilled in the SOR, reflect a number of alleged incidents, some with dates, and some without, without any documentation to support those allegations. Instead, facts are floated by the OPM investigator and responded to by Applicant, establishing Applicant as the purported source for the allegations against him. The facts essentially come down to a dispute of alleged misconduct reportedly made by school management versus the explanations by Applicant. It is also troubling that one allegation was that either the school principal or the superintendent of schools recommended the school board dismiss Applicant from his teaching position. There is zero evidence that such a recommendation was made by the principal or the superintendent, or that any such recommendation was actually made to, or received by, the school board. Applicant was not dismissed by the county school system. In an effort to truly furnish Applicant with the due process he deserves, the matter could have been properly resolved with a more complete OPM investigation and the presentation by the government of essential documentation, such as school disciplinary records, school personnel performance evaluations, school reports of investigation describing the alleged incidents, statements of witnesses, school board records, or records of the superintendent of schools, upon which the accusations were based or to support the allegations.

Furthermore, Department Counsel argues that Applicant’s performance as a teacher was deemed unsatisfactory to the extent that he was placed on a POI. Without a copy of the POI, that argument is a stretch. If a POI was actually instituted, it could have been for a variety of reasons, including unsatisfactory performance; failure to comply with certain procedures or policies; unacceptable language; unacceptable touching of a student; disrespect to a superior; throwing objects at students; maybe tardiness; or other perceived failures as a schoolteacher.

In addition, normally an applicant’s comments provide sufficient evidence to examine if his or her submissions were deliberate falsifications, as alleged in the SOR, or merely inaccurate answers that were the result of oversight or misunderstanding of the true facts on his or her part. Proof of incorrect answers, standing alone, does not establish or prove an applicant’s intent or state of mind when the falsification or omission occurred. As an administrative judge, I must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning Applicant’s intent or state of mind at the time the alleged falsifications or omissions occurred.

I have considered the entire record, including Applicant’s explanations associated with his admissions and/or denials of the SOR allegations. Department Counsel has argued that Applicant’s work history as a teacher and his knowledge of the English

language as a person who has earned a master’s degree provide convincing evidence that Applicant deliberately falsified his answers to the questions in sections 13A and 13C of his SF 86. It is unclear how he reached that conclusion, for there is no evidence that teaching middle school students shop or athletics with an on-line master’s degree can establish that someone deliberately lied as opposed to making a mistake. As noted above, Applicant did controvert the falsification allegations. He disputed the allegation that he was about to be fired when he left his teaching position. He disputed the underlying allegations regarding his history as a schoolteacher, and he omitted and concealed his reported reprimand and suspensions for the alleged misconduct in the workplace.

With respect to the first question under section 13A of the SF 86 (SOR ¶ 1.f.) and the entire allegation in SOR ¶ 1.g., AG ¶ 16(a) has not been established. With respect to the second question under section 13A of the SF 86 (SOR ¶ 1.f.), it should be recognized that the question only asks about disciplinary action within the last seven years before the SF 86 was completed (in 2018), yet the SOR allegation is that Applicant falsified his response by denying reported discipline that occurred outside that period as well. Nevertheless, with respect to SOR ¶¶ 1.d. and 1.e., AG ¶¶ 16(c) and 16(e) have been established, but with respect to SOR ¶¶ 1.a. through 1.c., no disqualifying condition has been established.

The guideline also includes examples of conditions under AG ¶ 17 that could mitigate security concerns arising from personal conduct. They include:

(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.

Applicant was a schoolteacher at a middle school in the county school system for a decade from August 2004 until July 2014. He admittedly had conflicts and disagreements with his principal and assistant principal regarding his duties and responsibilities as a teacher of elective courses; and some of his teaching methods. Among some of the accusations made against him were: yelling at students; throwing objects at students; failure to follow IEP accommodation of modifications; ignoring students request for help with classwork; making inappropriate putdowns and sarcastic remarks; kicking a table where a student had been laying his head while asleep; kicking the chair of a student who was rocking back; and hitting students in the back of the head for mistakes or stupid questions. As a result of those accusations, conflicts, and disagreements, he was reportedly disciplined with suspensions and a POI. Nevertheless, despite the accusations, Applicant was retained by the school district as a schoolteacher for a decade. It was also reported that Applicant had been recommended by either the principal or the superintendent that he be terminated by the school board. However, there is no documentation in evidence, such as school disciplinary records, school personnel performance evaluations, school reports of investigation describing the alleged incidents,

statements of witnesses, school board records, or records from the superintendent of schools, upon which the accusations were based or to support the allegations. The most recent allegation associated with his conduct as a schoolteacher is supposed to have occurred in 2014, nearly six years ago. Accordingly, with respect to SOR ¶¶ 1.a. through 1.e., AG ¶¶ 17(c) and 17(f) apply.

With respect to the allegation that Applicant deliberately falsified material facts associated with disciplinary actions he may have received while he was employed as a schoolteacher by the county school system (the second question under section 13A of the SF 86 (SOR ¶ 1.f.)), Applicant acknowledged that there were some disciplinary actions taken during his tenure, but he disputed the dates and much of the alleged discipline. He kept focusing on issues that he thought occurred in 2011. Moreover, he claimed that in responding to the question, he concentrated on the issue of termination. Upon reflection, he conceded that the issues could have been handled differently, but he took full ownership of them. In so doing, it remains unclear if he was referring to his handling of the disputes with middle-school management, or in how he answered the question. Nevertheless, I conclude that AG ¶¶ 17(c) and 17(f) 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 conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at SEAD 4, App. A, ¶ 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 SEAD 4, App. A, ¶ 2(c), the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Moreover, I have evaluated the various aspects of this case in light of the totality of the record evidence and have not merely performed a piecemeal analysis. (See U.S. v. Bottone, 365 F.2d 389, 392 (2d Cir. 1966); See also ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006))

There is some evidence against mitigating Applicant’s conduct. As a schoolteacher, he admittedly had conflicts and disagreements with his principal and assistant principal regarding his duties and responsibilities as a schoolteacher of middle school elective courses; and some of his teaching methods. He was reportedly repeatedly accused of misconduct in dealing with his students, and he was reportedly disciplined.

When completing his SF 86 in 2018, he failed to accurately respond to a question regarding disciplinary action taken against him in the last seven years.

The mitigating evidence under the whole-person concept is more substantial. Applicant is a 40-year-old employee of a defense contractor. He has been serving as a project manager with his current employer since June 2014. He previously served as a schoolteacher in a county school system from August 2004 until July 2014. While there were issues between the middle-school management and Applicant, they were apparently not sufficiently important to disrupt his decade-long tenure with the school system. Moreover, Applicant left that position nearly six years ago. There is no negative evidence regarding Applicant’s current job performance. Although the SOR made several allegations based on accusations of misconduct by Applicant during his tenure with the county school system, there is no documentation in evidence, such as school disciplinary records, school personnel performance evaluations, school reports of investigation describing the alleged incidents, statements of witnesses, school board records, or records from the superintendent of schools, upon which the accusations were based or to support the allegations. He received a bachelor’s degree in 2003, and a master’s degree on line in 2015.

Overall, the evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all of these reasons, I conclude Applicant has mitigated the security concerns arising from his personal conduct. See SEAD 4, App. A, ¶¶ 2(d)(1) through AG 2(d)(9).

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:

FOR APPLICANT

Subparagraphs 1.a. through 1.g.: 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 Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

__________________________ ROBERT ROBINSON GALES Administrative Judge

FOOTNOTES

13 A – Employment Activities. The most significant questions, and the ones alleged in the SOR, were essentially as follows: In the last seven (7) years, have you: been fired; quit after being told you would be fired; left by mutual agreement following charges or allegations of misconduct; or left by mutual agreement following notice of unsatisfactory