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ISCR Case 16-00943.h1 — CASE

ISCR Case 16-00943.h1denied

Case Headnote

ISCR Case No. 16-00943.h1

deniedAug 23, 2017· Hon. Gina L. Marine· hearing

Summary

A 26-year-old welder was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to a history of criminal conduct and a pattern of poor judgment. The Statement of Reasons detailed multiple arrests and charges spanning several years.

Specifically, the applicant was charged with four counts of vandalism and four counts of conspiracy in 2011. In 2012, there were two separate charges for driving on a suspended license, in January and February. An arrest occurred in March 2015 for an outstanding warrant related to a missed court fine payment, followed by another charge for driving on a suspended license in August 2015. Most recently, in February 2017, the applicant was arrested and charged with disturbing the peace and carrying a dangerous weapon.

The denial was based on the applicant's consistent pattern of criminal conduct, which raised significant doubts about his judgment and reliability. The judge noted that recent serious charges, particularly brandishing a weapon, indicated a lack of good judgment and a potential security risk. The applicant also failed to demonstrate sufficient rehabilitation or a change in behavior following previous offenses.

Why the Applicant Was Denied

The applicant had a pattern of criminal conduct that raised doubts about his judgment and reliability.
Recent serious charges, including brandishing a weapon, indicated a lack of good judgment and potential risk to national security.
The applicant failed to demonstrate sufficient rehabilitation or a change in behavior after previous offenses.

Conditions Referenced

Disqualifying

AG ¶ 31(a)appliedPattern of Minor Offenses
AG ¶ 31(b)appliedEvidence of Criminal Conduct
AG ¶ 16(d)(2)appliedCredible Adverse Information

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG.”

Procedural Posture

SOR issuedAug 9, 2016
Answer filedSep 8, 2016
Hearing heldMar 29, 2017
Decision dateAug 23, 2017

Cite For

Denial Based on a Pattern of Criminal Conduct Under Guideline J
Consideration of Recent Serious Charges in Security Clearance Decisions
Impact of Personal Conduct on Security Clearance Eligibility Under Guideline E

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: denied

The judge found against the applicant on one allegation under Guideline E, while ruling in favor of the applicant on another. The overall outcome of the case was a denial of the security clearance due to concerns regarding the applicant's personal conduct.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a–2.b	2 sub-charges — specific text not stated in this decision (1 against, 1 for the applicant).	Mixed		—		—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline J (Criminal Conduct), concluding that the applicant's criminal history raised significant concerns about his judgment and reliability. The applicant's pattern of offenses, including vandalism, driving on a suspended license, and a recent arrest, collectively undermined his trustworthiness for a security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	You were arrested and charged with four counts of vandalism and four counts of conspiracy in 2011.	Against Applicant	Vandalism or Property Damage	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.b	You were charged with driving on a suspended license in February 2012.	Against Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.c	You were charged with driving on a suspended license in January 2012.	Against Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.d	You were arrested on a warrant in March 2015 for missing a payment on a court fine.	Against Applicant	Probation or Court Order Violation	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.e	You were charged with driving on a suspended license in August 2015.	Against Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.f	You were arrested and charged in February 2017 with disturbing the peace and carrying a dangerous weapon.	Against Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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: ) ) [REDACTED] ) ISCR Case No. 16-00943 ) Applicant for Security Clearance )

For Government: Rhett E. Petcher, Esq., Department Counsel For Applicant: John F. Adamson, Personal Representative 08/23/2017 ______________

STATEMENT OF CASE

______________

MARINE, Gina L., Administrative Judge:

This case involves security concerns raised under Guideline J (Criminal Conduct), and Guideline E (Personal Conduct). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on September 1, 2015 (SCA). On August 9, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines J and E. The DOD CAF acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006.

Applicant answered the SOR on September 8, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 27, 2016, and the case was assigned to me on January 25, 2017. On February 28, 2017, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for March 29, 2017. I convened the hearing as scheduled. Government Exhibits (GE) 1 and 2 were admitted into evidence. I admitted GE 1 over Applicant’s objection,1 and GE 2 without objection. I appended to the record a letter the Government sent to Applicant as Hearing Exhibit (HE) I, and the Government’s exhibit list as HE II. At the hearing, Applicant and one witness testified. At Applicant’s request, I left the record open to May 5, 2017. Applicant timely provided one document that I admitted into evidence as AE A, without objection. The Government also timely provided GE 3, which I admitted over Applicant’s objection. I appended to the record all post-hearing emails as HE III. DOHA received the transcript (Tr.) on April 7, 2017.2

On June 8, 2017, the DOD implemented new AG.3 Accordingly, I have applied the June 2017 AG.4 However, because the September 2006 AG were in effect on the date of the hearing, I have also considered the September 2006 AG. Having considered both versions of the AG, I conclude that my decision would have been the same had I applied the September 2006 AG.

SOR Amendment

At the hearing, I granted the Government’s motion, without objection, to amend the SOR to conform to Applicant’s testimony at the hearing. I added ¶ 1.fto the SOR, as follows:

f. You were arrested and charged in February 2017 with disturbing the peace and carrying a dangerous weapon.

After being offered additional time to respond to the new allegation SOR ¶ 1.f, including the option to continue the matter for a second hearing, Applicant opted against a second hearing. Instead, he requested that the record be left open to May 5, 2017 to allow him the opportunity to provide witness statements and the court’s disposition, which was anticipated to be April 28, 2017. I granted his request and directed that he answer either “admit” or “deny” the allegation by the close of the record. I also granted Government’s request for an opportunity to provide court or arrest records before the close of the record. With respect to SOR ¶ 1.f, Applicant never provided any documents or an answer. The Government provided records as noted above.5 Findings of Fact6

Applicant, age 26, has never been married. He has a four-year-old daughter. He received his high school diploma in 2008. He was employed as a welder for a defense contractor from October 2015 through August 2016, when he was laid off pending adjudication of his security clearance. He is eligible for rehire. Applicant was granted a security clearance during his brief period in a delayed entry program for the U.S. Navy. It was revoked because he did not complete the program. This is his first application for a security clearance since then.7

The SOR, as amended, contains six allegations under Guideline J for criminal activity that occurred between 2011 and 2017 (SOR ¶¶ 1.a through 1.f), five of which are also cross-alleged under Guideline E (SOR ¶ 1.a). A second Guideline E allegation involves Applicant’s 2010 violation of company policy. Applicant admitted all but one of the Guideline J allegations and both Guideline E allegations. Applicant did not admit or deny the allegation in SOR ¶ 1.f.

In 2011, Applicant and three friends went on a “spree,” during which they smashed the windows of automobiles and painted graffiti on public property. Applicant did not paint any graffiti, but served as a “lookout” while his friends did so. For his part in these actions, Applicant was arrested and charged with four counts of vandalism and four counts of conspiracy (SOR ¶ 1.a). He acknowledged that his actions were the result of “bad decisions” he made trying to fit in since he did not have many friends at the time and did not “get out much.” He continues to associate with the three friends, who are no longer involved with any criminal activity. The court convicted Applicant on all eight counts and ordered him to pay restitution and serve one year of probation.8

Applicant was charged with driving on a suspended license four times, including twice on the same day, in January 2012 (SOR ¶ 1.c), once in February 2012 (SOR ¶ 1.b), and once in August 2015 (SOR ¶ 1.e). Knowing that his license had been suspended for an unpaid speeding ticket, Applicant drove his vehicle in January 2012 to get food and to bring someone home, and in February 2012 because he was the only one present who knew how to operate a manual transmission. In his SOR answer, Applicant acknowledged that at the time, he was “just plain dumb” and thought he “could get away with anything.” 9

In August 2015, Applicant drove his vehicle without knowing that his license had been suspended. He later learned that it was suspended because he defaulted on an arrangement he made to pay a court judgment entered against him in favor of an insurance company for his involvement in a car accident. While he knew that he defaulted due to lack of funds, he had not realized that it triggered a suspension of his license. The court found him guilty after Applicant pled nolo contendere, and ordered him to pay a fine of $750. Immediately after, Applicant sold his vehicle to remove any temptation to drive again without a license, and has not driven a vehicle since then. As of the hearing date, he was working with an attorney to negotiate a new payment arrangement and to reinstate his license.10

In March 2015, the police executed an outstanding arrest warrant against Applicant (SOR ¶ 1.d). The warrant was issued because he missed a payment per his arrangement to pay the fine stemming from his 2011 charges in monthly installments of $5. He missed the payment by only a few days. At the hearing, he could not recall the reason for missing the payment but opined that he had “a lot going on” and “might not even have had the $5 at the time.” The bail commissioner ordered him to immediately pay $400 for the balance of the fine owed, which he paid with the help of a friend. As of the date of the hearing, Applicant had no outstanding court fines or fees.11

In February 2017, Applicant was arrested and charged with 2nd degree breach of peace (a misdemeanor) and carrying a dangerous weapon (a felony) (SOR ¶ 2.f). The record does not contain the court’s disposition of the charges. Applicant claimed that he attempted to defend a female neighbor from what he believed to be a threat of harm from Person A (a male). He also claimed that Person A threated to kill her if she did not open the door, and that his actions saved her life. During the confrontation with Person A, he and a friend brandished BB guns, that resembled real firearms, to intimidate Person A and encourage him to leave. He claimed that his BB gun was a “glorified toy” with an orange tip, which should not have been perceived as a real weapon. He also claimed that he “just held” the BB gun to threaten him. He did not call the police to report the incident.12

The police were initially called to the scene by Neighbor A (a male) who reported being threatened by Person A over a parking spot. Neighbor A, who resided in the same apartment building as Applicant, reported that Person A came to his door yelling and threatening to damage his vehicle if he did not move it. However, shortly after that initial call, they received a second call from Neighbors B (a male and female who lived across the street from Applicant) who were initially disturbed by yelling outside of their window. Upon investigation, they saw Applicant and his friend brandishing firearms and moving around the vicinity in a “military fashion,” taking up position behind a car, and then behind a row of bushes. They also saw Applicant and his friend yelling at Person A in the yard outside of Applicant’s apartment building. They called the police because they were scared for themselves and others who may have been outside. 13

The responding police officers reported that Applicant and his friend both gave almost the same “story.” They both acknowledged that, after hearing Person A arguing with someone, they brandished BB guns to confront him and told him to leave. The difference between their stories was that Applicant stated that the “someone” was a female. Neither mentioned hearing Person A threaten that someone. However, the officers believed that the argument they actually heard was that between Neighbor A and Person A. Applicant’s BB gun was an HK45 replica and his friend’s BB gun was an Ar-15 assault weapon replica. One of the responding officers reported that both guns were “extremely well designed airsoft guns that exactly resembled their actual functioning counterparts,” with no mention that either had an orange tip. Neighbors B and the responding officers all perceived the weapons brandished by Applicant and his friend to be real. The officers responding to the scene drew their weapons and secured the scene accordingly.14

Applicant worked as a welder for Employer A from February 2010 and October 2010, when he was fired for underperforming due to delays that he caused on the assembly line on which he worked (SOR ¶ 2.b). Prior to his termination, he had been verbally reprimanded on several occasions for those delays and, on one occasion, for using a cell phone to make a call. On the day he was fired, he had been using his cell phone to listen to music. Applicant denied that he was fired for using a cell phone, but rather because he had caused yet another delay on the assembly line while shuffling music on his phone. In his SOR Answer, he acknowledged that he was “young and immature,” and maintained that it was a “turning point” in his attitude towards his employment.15

Applicant attributes his criminal history to “poor choices” that he made in light of his tumultuous upbringing, and the lack of good role models and proper guidance. Applicant asserted that his daughter motivates him to avoid criminal misconduct. In order to give her a “better life” and not have her “see her father in trouble constantly, Applicant vowed to keep the following thought in the back of his mind: “You need to not do whatever stupid thing you’re about to do for your daughter.” While his daughter does not live with him, he calls her every night and provides for her needs.16

Before he began working with the defense contractor sponsoring his clearance, he was an assistant manager for a retail chain between June 2013 and February 2015. He was entrusted to make substantial bank deposits each day. His employment ended when they closed his store. He then began working for the defense contractor and, during his six-month probation period, qualified to work on one of their most important jobs. After the defense contractor laid him off, the retail chain hired him again as an assistant manager. He is currently still employed there and walks two hours every day to get himself to the job location.17

Applicant’s friend testified at the hearing. He has known Applicant since middle school and been close friends with him since high school. He socializes with Applicant at least once a week. He described Applicant as “volatile and prone to anger and aggression” until he matured and calmed down when his daughter was born. He opined that Applicant was honest, straight-forward, and does not “try and hide behind things.”18

Another close friend, who is the mother of Applicant’s daughter, averred that Applicant has grown up into a “fantastic man” and turned his life around during the ten years that she has known him. She highly regards his character, honesty, and trustworthiness. She explained that he strives to set an example for his daughter of honor, strength, and perseverance.19

Applicant’s personal representative, the chief steward for the defense contractor sponsoring his clearance, remarked favorably about his work performance. Applicant developed the skills of a good welder in months, which usually takes many years. He also worked on a crew that is the “cream of the crop” of crews when it comes to welders.20

POLICIES

“[N]o one has a ‘right’ to a security clearance.”21 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.”22 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.”23

Eligibility for a security clearance is predicated upon the applicant 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.”24 Thus, a decision to deny a security clearance is merely an indication the 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.25 “Substantial evidence” is “more than a scintilla but less than a preponderance.”26 The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability.27 Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.28 An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government.29

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.”30 “[S]ecurity clearance determinations should err, if they must, on the side of denials.”31

ANALYSIS

Guideline J (Criminal Conduct)

The concern under this guideline 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.

Applicant’s criminal activity between 2011 and 2017 establishes the following disqualifying conditions under this guideline:

AG ¶ 31(a): a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness; and

AG ¶ 31(b): evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.

The following mitigating conditions under this guideline 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

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 20 years old when he vandalized automobiles with his friends, and 21 when he drove a vehicle on three occasions knowing that his license had been suspended. After his daughter was born, at age 24, he drove a vehicle on a suspended license; that time, unintentionally. He was also arrested on a warrant for missing, by a few days, a $5 payment on an earlier court fine. Arguably, one or more of these incidents would lack security significance if viewed in isolation. However, they collectively establish a pattern of questionable judgment that also calls into question Applicant’s ability or willingness to comply with laws, rules, and regulations. Nevertheless, he could have demonstrated successful rehabilitation had he maintained a clean criminal record after his 2015 charge.

However, after receiving the SOR, at age 26, Applicant was arrested again; this time for more serious charges. The record suggests that he either misinterpreted the situation with his neighbor or lied about his motive for brandishing a realistic looking weapon in a manner that triggered fear in his neighbors and the responding police officers. Nevertheless, even if he actually believed that a female neighbor’s life was being threatened, his actions were poor judgment at the very least, if not criminal as he was charged. Based on all the evidence, Applicant has not demonstrated a sufficient pattern of modified behavior for me to conclude that the questionable judgment associated with his criminal misconduct is behind him. AG ¶¶ 32(a) and 32(d) are not established.

Guideline E (Personal Conduct)

The concern under this guideline, as set out in AG ¶ 15, includes: “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.”

Applicant’s 2010 employment issues establish the following disqualifying condition under this guideline:

AG ¶ 16(d)(2): credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of . . . (2) any disruptive, violent, or other inappropriate behavior; (3) a pattern of dishonesty or rules violations . . . .

I find Applicant has mitigated the security concerns raised by the employment issues.32 His matured work ethic and the high regard with which subsequent employers have had for his work performance sufficiently demonstrate that those issues are not likely to recur. Therefore, I find SOR ¶ 2.bin favor of Applicant.

Notwithstanding my adverse determination under Guideline J, Applicant’s criminal misconduct also raises concerns under Guideline E. While none of the listed disqualifying conditions under this guideline strictly applies to his criminal misconduct, I find that it establishes the general concern involving questionable judgment and unwillingness to comply with rules and regulations, which Applicant has not mitigated.33

WHOLE PERSON CONCEPT

Under AG ¶ 2(c), the ultimate determination of whether the granting or continuing of national security eligibility is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person. An 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.

I have incorporated my comments under Guidelines J and E in my whole-person analysis, and I have considered the factors in AG ¶ 2(d). Applicant was candid and sincere in his resolve to make better choices, not only for his daughter but for his career objectives. His two close friends observed positive changes in his behavior over the past decade. However, the 2017 incident suggests that Applicant has not evolved as much as he needs to. I have no doubt that Applicant’s upbringing and peer pressure contributed to his misconduct and poor decisions, but they do not mitigate the Government’s concerns. Having observed Applicant’s demeanor at the hearing, I found his testimony about the 2017 incident to be minimizing and misleading.

At this point, Applicant has not carried his heavy burden of overcoming the questionable judgment raised by his criminal misconduct.34 After weighing the disqualifying and mitigating conditions under Guidelines J and E, and evaluating all the evidence in the context of the whole person, I conclude that Applicant has mitigated the Guideline E concerns surrounding his 2010 employment issues, but not the Guideline J and E security concerns raised by his criminal misconduct. Accordingly, Applicant has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline J (Criminal Conduct): AGAINST APPLICANT

Subparagraphs 1.a – 1.f: Against Applicant

Paragraph 2, Guideline E (Personal Conduct): AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Subparagraph 2.b: For Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national interest to grant Applicant eligibility for access to classified information. Clearance is denied.

Gina L. Marine Administrative Judge

FOOTNOTES

1 Tr. at 24-31; GE 2 at 5. 2 Tr. at 109-110; HE III. 3 On December 10, 2016, the Security Executive Agent issued Directive 4 (SEAD-4), establishing a “single, common adjudicative criteria for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.” (SEAD-4 ¶ B, Purpose). The SEAD-4 became effective on June 8, 2017 (SEAD-4 ¶ F, Effective Date). The National Security Adjudicative Guidelines (AG), which are found at Appendix A to SEAD-4, apply to determine eligibility for initial or continued access to classified national security information. (SEAD-4 ¶ C, Applicability). 4 ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DOD policy and standards). 5 Tr. at 78-82, 109; HE III. 6 Unless otherwise indicated by citation to another part of the record, I extracted these facts from Applicant’s SOR Answer and his SCA (GE 1). 7 See also Tr. at 48-50, 87. 8 See also GE 2 at 10-12; Tr. at 36-37, 51-58, 83. 9 See also GE 2 at 8, 10-12; Tr. at 37-40, 58-61, 67-70, 91-94. 10 See also GE 2 at 8, 10-12; Tr. at 37-40, 58-61, 67-70, 91-94. 11 See also GE 2 at 8; Tr at 38-39; 61-66, 84. 12 Tr. at 72-82, 84-87, 90-91; GE 3. 13 GE 3. 14 GE 3. 15 See also GE 2 at 11; Tr. at 43-45, 70-72. 16 Tr. at 38, 40-43, 47, 95-96. 17 Tr. at 11, 45-47, 96-97. 18 Tr. at 98-106. 19 AE A. 20 Tr. at 6, 117. 21 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 22 Egan at 527. 23 EO 10865 § 2. 24 EO 10865 § 7. 25 See Egan, 484 U.S. at 531. 26 See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 27 See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). 28 Directive ¶ E3.1.15. 29 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 30 ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 31 Egan, 484 U.S. at 531; See also AG ¶ 2(b). 32 AG ¶ 17(c): the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment. 33 ISCR Case No. 13-01281 at 4 (App. Bd. Aug. 4, 2014) ([T]he DCs listed under any of the Guidelines are not exclusive [citation omitted]. To the contrary, they are illustrative in nature, and, even when none of the DC’s under a particular Guideline can be applied with literal preciseness, it is not improper for a Judge to conclude that an applicant’s conduct sets forth concerns under that Guideline). 34 “Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”ISCR Case No. 09-01652 at 3 (App. Bd. Aug 8, 2011), citing Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).