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ISCR 09-00578.h1: Guideline J security clearance hearing, granted (2009) · CASE

ISCR Case 09-00578.h1granted

Case headnote

ISCR Case No. 09-00578.h1

grantedNov 13, 2009· Hon. Arthur E. Marshall, Jr.· hearing

Summary

A 34-year-old administrative assistant with prior military service was granted a security clearance despite concerns under Guideline J (Criminal Conduct). The Statement of Reasons cited a 2006 incident where the applicant brandished a firearm during a road confrontation, leading to misdemeanor charges. Disqualifying conditions under Adjudicative Guideline (AG) ¶ 31(a), (c), and (d) were raised.

However, the judge applied mitigating conditions under AG ¶ 32(a) and (c). The applicant demonstrated credible contrition for his past actions and had made significant positive life changes, including becoming a father and disposing of his firearm.

Crucially, there have been no subsequent incidents of criminal or antisocial behavior since the 2006 event. Despite being on probation at the time of the hearing, the judge found these mitigating factors sufficient to grant the security clearance.

Why the applicant prevailed

The applicant demonstrated credible contrition regarding his past conduct.
He has made significant life changes, including becoming a father and disposing of his firearm.
There have been no subsequent incidents of criminal or antisocial behavior since the incident.

Conditions referenced

Disqualifying

AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)raisedAllegation or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged, Formally Prosecuted, or Convicted
AG ¶ 31(d)raisedIndividual Is Currently on Parole or Probation

Mitigating

AG ¶ 32(a)rejectedSo 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 JudgmentThe applicant was still on probation at the time of the decision.
AG ¶ 32(c)rejectedEvidence the Person Did Not Commit the Act

Key rule quoted

“The protection of the national security is the paramount consideration.”

Procedural posture

SOR issuedJul 30, 2009
Answer filedAug 11, 2009
Hearing heldOct 20, 2009
Decision dateNov 13, 2009

Cite for

Consideration of Mitigating Factors in Criminal Conduct Cases
Impact of Personal Life Changes on Security Clearance Decisions
Evaluation of Applicant's Contrition and Rehabilitation Efforts

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 34: “Applicant is a 34-year-old administrative assistant who has worked for the same defense contractor since March 2005.”
Tenure: ~4 years: “Applicant is a 34-year-old administrative assistant who has worked for the same defense contractor since March 2005.”
Clearance at issue: Secret: “At the time of the incident at issue, he had an interim security clearance, which had been granted in March 2005.”
Held a clearance before: Yes: “At the time of the incident at issue, he had an interim security clearance, which had been granted in March 2005.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge granted the applicant's request for a security clearance despite a prior criminal incident involving brandishing a firearm during a road confrontation. The judge found that the applicant had demonstrated rehabilitation and good character since the incident, which occurred over three years prior, although the applicant was still on probation at the time of the decision.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 09-00578 SSN: ----------------- ) ) Applicant for Security Clearance )

For Government: Candace Le’i, Esquire, Department Counsel For Applicant: Pro se

November 13, 2009 ______________

STATEMENT OF CASE

______________

MARSHALL, Jr., Arthur E., Administrative Judge:

Applicant completed an Electronic Questionnaire for Investigations Processing (e-QIP) dated April 15, 2008. On July 30, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns under Guideline J (Criminal Conduct). The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the revised Adjudicative Guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

On August 11, 2009, Applicant responded to the SOR and admitted the one allegation. He also requested a hearing before a DOHA Administrative Judge. I was assigned the case on September 9, 2009. The parties proposed an October 20, 2009, hearing date, and a Notice of Hearing was issued on September 23, 2009. The hearing took place as scheduled. Applicant gave testimony, introduced one character witness, and offered five documents, which I accepted into the record without objection as Exhibits (Exs.) A-E. Also accepted without objection were five documents from Department Counsel, marked as Exs. 1-5. Applicant was given through October 23, 2009, to submit any additional materials, but none were submitted. The transcript (Tr.) was received on October 28, 2009, and the record was closed. Based upon a review of the case file, exhibits, and testimony, security clearance is granted.

FINDINGS OF FACT

Applicant is a 34-year-old administrative assistant who has worked for the same defense contractor since March 2005. At age 17, he earned a high school diploma and joined the National Guard, in which he served for six years. He has completed some college-level course work. Married in 2002, Applicant and his wife have two young children, a two-and-a-half-year-old and a nine-month-old infant. At the time of the incident at issue, he had an interim security clearance, which had been granted in March 2005.

On September 17, 2006, Applicant visited a friend who lived in a relatively rural area a couple of hours away. For the visit, Applicant took his registered Remington 870 Express shotgun with an 18” barrel. He originally purchased the shotgun for home protection and occasionally used it at a shooting range. He wanted to use it on the trip to go shooting with his friend, which he did.1 When he left the friend’s house, Applicant put the shotgun on the backseat of his sports car, along with a clothing bag, and stored the gun shells in the car’s console compartment.

On his way home, Applicant proceeded to a major highway. As he merged into the flow of traffic from a ramp into the right lane of highway, a large SUV in the same lane traveling at a higher speed approached Applicant’s vehicle from behind. The SUV driver did not slow down to give Applicant an opportunity to fully merge into the flow of traffic, nor did he move to the next lane to pass. Instead, the SUV driver pushed closer toward Applicant’s car, a pony-class-sized vehicle. As he got close to Applicant’s car’s bumper, Applicant pumped his brakes about two times to signal the SUV to slow down or back off.2 The SUV was traveling sufficiently close and at such speed that the pumping of Applicant’s brakes caused the SUV driver to almost hit Applicant’s vehicle.3 The SUV driver then changed to the left lane, drove along side Applicant’s car, rolled down his window, and yelled “What’s wrong with you?”4

4 Id. In pumping his brakes, Applicant’s shotgun and clothing bag started to fall from the backseat to the floor.5 Applicant instinctively reached back to grab the firearm from falling and caught it.6 He lifted the shotgun, which was approximately two and a half feet in length, with his right hand and brought it toward the front passenger seat as he steered with his left hand.7 He then managed to steer the vehicle with his right hand as he switched the firearm to his left hand, holding it vertically between the driver’s seat and the car door interior. By this point, the SUV had pulled along side Applicant’s vehicle and its driver was yelling. Applicant made sure the other driver could see the unloaded shotgun for a few seconds.8 The SUV driver who had been yelling at Applicant misidentified what Applicant held in his left hand as a rifle and later claimed he saw Applicant loading the firearm.9 The shotgun is capable of being loaded vertically with one hand, but the maneuver would be “difficult.”10 Applicant’s gesture and perceived movements scared the SUV driver.11 Not anticipating the turn of events as he perceived them, the SUV driver finally backed off. He then called the police on his cell phone. Rather than again switching hands between the steering wheel and the firearm, Applicant lowered the shotgun down with his left hand and let it rest on the car floor between the driver’s seat and the car door. He then continued his drive thinking, “thank goodness that’s over. I’ll just go home.”12

When the police caught up with the drivers, they were prepared for a high-risk vehicle stop with other units prepared for an incident. As they tailed Applicant, the police saw movement from within his vehicle and concluded he might be concealing a firearm. At the time, however, Applicant was on his cell phone talking with his wife.13 The vehicles came to a stop and the police approached Applicant’s vehicle. They only made a visual inspection of the car interior from outside the automobile.14 Consequently, they did not initially see the firearm at issue.15 When asked about the firearm while Applicant was being held in a police car, Applicant volunteered that it was on the floor by his seat.16 The police then identified the firearm as a shotgun, not a rifle. They also found four 12-gauge shotgun shells in the car’s center console compartment and a rifle stocking on the passenger-side front seat.

In interviewing Applicant, the police told him that “several other witnesses” had observed his actions. No other witnesses were identified, however, and only Applicant’s and the SUV driver’s versions of the facts were included in the sheriff’s report.17 Inasmuch as it was Applicant’s first brush with the law, he was nervous and embarrassed.18 When asked whether the SUV driver’s actions had made him mad, Applicant answered “I guess.”19 When told to answer whether Applicant was “scared and showed the gun to let [the SUV driver] know [he] was not playing” or had “pointed the gun at [the SUV driver] maliciously with the gun loaded,” Applicant was given no other options for an answer.20 Consequently, he answered: “It was more of the first option.”21 Applicant felt he was being manipulated by the officer.22 Applicant explained that he was worried the tailgating SUV driver would hit his smaller vehicle. He conceded that after he had been intimidated by the SUV driver who had tailgated and yelled at him, that he tried to intimidate the SUV driver in return.23 When asked what he would do if he was again in this situation, Applicant stated: “I would let him pass me and . . . . Pay attention to the road in front of me and ignore it.”24

Applicant pled guilty to the two charges emerging from the incident and was sentenced on December 12, 2006.25 In pleading guilty to the charge of Brandishing Firearm, a misdemeanor, fines and costs of $355 were levied and paid, all but three days of a six-month sentence were suspended, and he was placed on three years of unsupervised probation.26 On advice of counsel, Applicant declined to challenge the charge of Carrying Concealed Weapon – 1st, a misdemeanor. In pleading guilty to that charge, $581 in fines and costs were levied and paid, and Applicant received the same suspended sentence and period of unsupervised probation.27 The court took no action suspending Applicant’s driver’s license and no rehabilitative coursework was ordered. His probationary period ends on December 12, 2009.

Since the incident at issue, Applicant and his wife have started a family. They now have an infant and a toddler. With the additions to their family came issues regarding safety. Applicant traded in his pony-class sports car for a family sized vehicle. He no longer owns a firearm. He is active with his local home owner’s association and is getting to know his neighbors.28 He and his wife are currently looking for a new church which will fit their family’s needs.29 The transition to being a “family man” has brought about other changes: “my biggest thing is having kids. They’ve really changed me a lot. I love my kids and want to be a positive role model for them and so you know I‘malways very aware of what I say and what I do around them. I want them to see that I’m a good person and what it’s like to be a good person. . . .”30 Applicant is credibly contrite regarding the conduct at issue:

I’m very sorry this has happened. . . . I feel like I’ve learned from it and have demonstrated [I have moved] on with my life. It happened over three years ago. I don’t believe there’s any pattern of behavior problems with me. I do understand the seriousness of the incident and I just never [want] anything like this to ever happen again. Again, all I want to be is a perfect or good role model for my children or for others, anyone else that may associate with me.31

Applicant’s wife described the incident at issue as being out of character for Applicant. She was genuinely surprised to hear he had been involved in such a situation. She emphasized that since Applicant’s conviction and in the wake of the birth of their children, she has “absolutely” noted a change in his behavior: “[H]is patience has grown. He is very patient. He was before. It’s just that seeing him grow as a father in relating to our children is the biggest change in him. I see him agonize over this situation right now and just want to move forward and do good in life.” 32 At work, Applicant’s supervisor considers him to be a “role model” who is reliable and trustworthy.33 Noting that Applicant’s job is not “glamorous,” he emphasized how hard Applicant works in his area of specialty.34 His references are all complimentary, emphasizing his professionalism, reliability, and graciousness.35

Department Counsel noted that although Applicant still has a month to go on his three-year period of unsupervised probation, that he has otherwise served his sentence. It was argued that the details underlying the incident “is (sic) what raises questions and continues to raise questions as far as the Government’s perspective is concerned.”36 After acknowledging that the incident at issue occurred over three years ago and that this Applicant has an additional month remaining on his three-year probation, Department Counsel conceded that “the Government’s position would be three years generally would be considered an appropriate passage of time” to mitigate security concerns.37 She further noted, however, that “that’s not the scenario we’re presented with here today. He’s still got this outstanding probation.” Therefore Department Counsel urged that insufficient time had passed to mitigate the applicable security concerns.38

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant’s eligibility for access to classified information. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, they are applied in conjunction with the factors listed in the adjudicative process. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. The government must present evidence to establish controverted facts alleged in the SOR. An applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .”39 The burden of proof is something less than a preponderance of evidence.40 The ultimate burden of persuasion to obtain a favorable clearance decision is on the applicant.41

A person who seeks access to classified information enters into a fiduciary relationship with the government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” EO 12968, Section 3.1(b), lists multiple prerequisites for access to classified or sensitive information. The Appeal Board has stated that “(t)he clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”42 Any reasonable doubt about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such sensitive information.43 The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of an applicant.44 It is merely an indication that an applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Based upon consideration of the evidence, I find the following adjudicative guideline to be the most pertinent to the evaluation of the facts in this case:

Guideline J - Criminal Conduct. The Concern: 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.45

Conditions pertaining to this adjudicative guideline that could raise a security concern and may be disqualifying, as well as those that would mitigate security concerns, are set forth and discussed in the conclusions below.

ANALYSIS

The facts show that in September 2006, while he was being intimidated by another driver on a major highway, Applicant brandished a firearm. They also show that his placement of the firearm was determined to constitute concealment. At the time, he had an interim security clearance. Applicant pled guilty to the two resultant misdemeanor charges. Although he has satisfactorily completed all other aspects of his sentence, less than a month remains on the 36 months of unsupervised probation ordered by the court. Consequently, Criminal Conduct Disqualifying Conditions (CC DC) AG ¶ 31(a) (“a single serious crime or multiple lesser offenses”), CC DC AG ¶ 31(c) (“allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted, or convicted”), and CC DC AG ¶ 31(d) (“individual is currently on parole or probation”) apply. With disqualifying conditions raised, consideration must be given to the mitigating conditions noted under AG ¶ 32.

Applicant admitted to the criminal misdemeanor charges and to the related allegations set forth in the SOR. The incident at issue occurred in September 2006, over three years ago. Applicant was not sentenced until December 12, 2006. His court ordered period of unsupervised probation ends on December 12, 2009, less than a month from the date of this decision. Applicant admits he used poor judgment in escalating matters further when he was confronted by an aggressive driver. Although he continues to drive over the crowded roads and highways that sprawl about his region, he has not been involved in any subsequent incidents of a criminal, civil, or antisocial nature in the past 35 months. Regardless, his probation is still pending, congested highways continue to be a local problem in Applicant’s region, and his behavior at the time demonstrated poor judgment. Consequently, neither Criminal Conduct Mitigating Condition (CC MC) 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”) nor AG ¶ 32(c) (“evidence the person did not commit the act”) applies. Although Applicant’s actions on September 17, 2006, constituted serious misdemeanors of a criminal nature, the other party in the matter is not blameless. Even the sheriff’s report notes facts indicating that the SUV driver was aggressive. The SUV driver declined to move into the next lane and permit Applicant to move at his own pace in the right lane, the lane generally accepted as being the proper lane for merging vehicles and slower traffic. Behind the wheel of a much larger SUV, he tried to tailgate or “push” Applicant’s much smaller vehicle to a higher speed. The SUV driver was dissatisfied that his prodding was unsuccessful and apparently became incensed when Applicant pumped his brakes as a signal for the SUV driver to slow down or back off. Foiled in his maneuvers, the SUV driver moved to the next lane, drove along side Applicant’s vehicle, rolled down his window, and began yelling at Applicant. A blameless driver would simply have changed lanes and moved on. The SUV driver, however, remained aggressive until his tactics yielded a response he did not anticipate. Granted, Applicant’s response was illegal and disproportionate to the circumstances. Although these facts do not raise CC MC AG ¶ 32(b) (“the person was pressured or coerced into committing the act and those pressures are no longer present in the person’s life”), they merit some consideration in putting the entire incident into perspective.

The fact Applicant is still on probation demands and received heightened scrutiny. With less than a month of unsupervised probation remaining, however, it is notable that there have been no recurrences of either criminal or civil misconduct, antisocial behavior, or driving violations. Indeed, in the interim, Applicant became a father for the first time. A second baby was born within the past year. He has traded in his sports car for a family car, disposed of his only firearm, become active in his home owners’ association, is looking for a new church suitable for his growing family, demonstrated maturation and increased patience, assumed the role of family man, and learned from his past misconduct. At work, he has earned the respect of his peers and his newest supervisor. As demonstrated by his credible testimony and recent behavior, he is genuinely contrite over the incident at issue. Consequently, CC MC AG ¶ 32(d) (“there is evidence of successful rehabilitation, including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement”) applies.

WHOLE PERSON CONCEPT

Under the whole person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of an applicant’s conduct and all the circumstances. An administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(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 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 reviewing the complete record, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, as well as the “whole person” factors noted above.

Applicant is a credible and soft spoken man who, in 2006 at age 31, displayed an isolated and uncharacteristic outburst of aggression which resulted in two criminal misdemeanor charges.46 He pled guilty to the misdemeanors at issue, paid both his fines and costs, complied with the court’s sentencing, and completed over 35 of 36 months of unsupervised probation.47 His license was not suspended and he was not ordered to attend any form of driver’s training or aggressiveness counseling. Applicant is credibly contrite and humbled by the incident, which he now views as a significant learning experience.48 While he takes responsibility for his actions, the aggressive tactics employed by the SUV driver initially created the air of aggression that eventually provoked Applicant’s, albeit needless and disproportionate, response.49 Since his conviction, he has substantially completed almost 98% of his unsupervised probation without incident.

Although he is humbled and embarrassed by the experience, Applicant has made no secret of his arrest. Consequently, it provides little weight as a basis for exploitation.50 In learning from his mistake and taking responsibility for his actions, he has matured.51 This maturation was complemented by the birth of two young children, which has made him refocus his life, strive to become a role model, and increase his capacity for patience.52 He traded in his sports car for a more sensible family vehicle and he no longer owns a firearm.53 Rather than practice his marksmanship with friends in the country, he emphasizes socializing with his neighbors, attending church as a family, concentrating on his work, and trying to serve as a role model for his children and professional peers.54

Applicant’s maturation and personal efforts over the past three years mitigate security concerns regarding his past criminal conduct and his misdemeanor convictions. While it is true that Appellant still has a few weeks left on his unsupervised probation, the fact he is on probation only raises another disqualifying condition under AG ¶ 31. It does not, however, automatically and conclusively disqualify an applicant from possessing a security clearance. Like other disqualifying conditions noted under AG ¶ 31, it can be mitigated by those conditions enumerated under AG ¶ 32.

The misdemeanors described above raised disqualifying conditions that were mitigated through Applicant’s maturation and personal efforts. The disqualifying condition raised by his probation merits additional scrutiny, but I find it, too, is mitigated through the same facts and considerations. Indeed, with over 35 of 36 months of unsupervised probation already successfully completed, and given both the facts of record and the totality of the circumstances, there is no evidence or indication that he will not successfully complete his entire probation within the month. To strictly hold Applicant to the full 36 months of probation before accepting the Government’s position that three years is sufficient time to demonstrate rehabilitation would be a senseless embracement of form over substance and would undermine the policy dictating that the guidelines are not inflexible rules of law. Moreover, it would serve no genuine purpose, would not otherwise alter the facts regarding rehabilitation underlying the whole person analysis, and would prove to be unnecessarily punitive within the context of this administrative process. This is especially true given the fact Applicant has an otherwise unblemished record, has been incident-free for well over three years since the incident at issue, and presents no genuine risk that he would deliberately or inadvertently fail to protect or safeguard classified information. Having reviewed all these facts and circumstances, as well as Applicant’s personal growth and the mitigating conditions raised, I find that sufficient time has passed, and more than sufficient rehabilitation has occurred, to mitigate all the criminal conduct security concerns and related disqualifying conditions at issue. Clearance is granted.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline J: FOR APPLICANT

Subparagraph 1.a: For Applicant

54 Id.

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. Clearance is granted.

__________________________ ARTHUR E. MARSHALL, JR. Administrative Judge

FOOTNOTES

1 Tr. 24, 35. 2 Tr. 19-20, 25 (“At first he just came up on me and tailgated me for a short while. And you know how you tap your brakes to get somebody to back off a little bit?” Compare Ex. 3 (Sheriff’s Report, dated Sep. 17, 2006) at 4 (“. . . as [the SUV] got close to [Applicant’s] bumper, [Applicant] hit the brakes two times very hard. . . . “) 3 Ex. 4, note 1, supra. 5 Tr. 18. 6 Tr. 26. 7 Tr. 42-43. 8 Id. 9 Ex. 4, note 1, supra, at 5; Tr. 33 (regarding the SUV driver’s claim Applicant made an “up and down movement as if [he] were loading [what Applicant thought was a rifle].” Applicant disputes the other driver’s depiction. 10 See, e.g., Tr. 43-44. 11 Tr. 18. 12 Tr. 18. 13 Tr. 30. 14 See, e.g., Ex. 4, note 1, supra, at 5; Tr. 31. 15 Ex. 4, note 1, supra, at 5; Tr. 30. 16 Id.; Tr. 31. 17 Id. 18 Tr. 18. 19 Ex. 4, note 1, supra, at 5. 20 Id. There is no evidence that the shotgun was ever loaded before or after Applicant was questioned. See generally Ex. 4, note 1, supra; Tr. 28. 21 Id. 22 Tr. 36. 23 See, e.g., Id., Tr. 40-42, 45-46 (“Well, I obviously intimidated him, and that must have been my intentions. I’m not going to deny that it happened. Like I said, it was just a stupid, stupid thing. I wish I had just left it alone. [As if it had] never happened.” Tr. 46. 24 Tr. 46-47. 25 Applicant pled guilty to the charges. Applicant disputes certain conclusions the sheriff’s department drew based on the facts, but there is no indication the matter was ever litigated or these disputes were ever resolved. See, e.g. Tr. 29, 33. 26 Ex. 5 (State Courts Case Information sheet, undated). 27 Ex. 4 (State Courts Case Information sheet, undated). 28 Tr. 50-51. 29 Tr. 55. 30 Tr. 53. 31 Tr. 75-76. 32 Tr. 66-68. 33 Tr. 57, 62. 34 Tr. 58. 35 Exs. A-E (References). 36 Tr. 69. 37 Tr. 72. 38 Id. Department Counsel further argued: “If he were not on the outstanding probation, then we would have here a single, serious crime or allegation or admission of criminal conduct. And it would be your decision, Your Honor, to decide the applicability of remaining conditions. Generally, yes, three years passage of time with an isolated incident, the Government submits that Your Honor could find that he’s successfully rehabilitated and nothing has happened since – in this three year period.” Tr. 75. 39 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995). 40 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988). 41 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). 42 Id. 43 Id. 44 EO 10865 § 7. 45 AG ¶ 30. 46 AG ¶ 2(a)(1), AG ¶ 2(a)(3), and AG ¶ 2(a)(4). 47 AG ¶ 2(a)(6). 48 AG ¶ 2(a)(9). 49 AG ¶ 2(a)(2), AG ¶ 2(a)(5), and AG ¶ 2(a)(7). 50 AG ¶ 2(a)(8). 51 AG ¶ 2(a)(6). 52 Id. 53 Id.