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ISCR Case 12-09441.h1 — CASE

ISCR Case 12-09441.h1granted

Case Headnote

ISCR Case No. 12-09441.h1

grantedMar 5, 2013· Hon. Mary E. Henry· hearing

Summary

A 55-year-old linguist and cultural advisor for a Department of Defense contractor was granted a security clearance despite concerns raised under Guideline E (Personal Conduct). The Statement of Reasons (SOR) alleged several instances of misconduct, including a simple assault charge in January 2009 and multiple past employment terminations. Specifically, the government alleged the applicant was fired from Company A in June 2004, from Company B, and from Company C due to insubordination and unprofessional behavior.

Further allegations claimed the applicant falsified information on four documents, including a Declaration for Federal Employment form dated June 4, 2009, and a security clearance application dated December 19, 2011. These falsification claims stemmed from the applicant's alleged failure to disclose the terminations from Companies A, B, and C, and to provide explanations for leaving Companies B and C.

However, the judge found insufficient evidence to support the allegations that the applicant was fired from Company A in 2004 or terminated from Company B. The judge also determined that the evidence did not establish the applicant committed simple assault. Ultimately, the applicant's extensive positive work history and strong character references contributed to the decision to grant the security clearance.

Why the Applicant Prevailed

The judge found insufficient evidence to establish that the applicant was fired from Company A in 2004.
The judge determined that the evidence did not support the allegation of termination from Company B.
The applicant's extensive positive work history and character references contributed to the favorable decision.

Conditions Referenced

Disqualifying

AG ¶ 16(b)raisedCredible Adverse Information
AG ¶ 16(c)raisedQuestionable Judgment
AG ¶ 16(e)raisedPersonal Conduct Creating Vulnerability
AG ¶ 16(f)raisedViolation of Written Commitments

Mitigating

AG ¶ 17(a)appliedThe Applicant's Positive Character References
AG ¶ 17(c)appliedEvidence of Rehabilitation or Changed Circumstances

Key Rule Quoted

“The Government must present evidence to establish controverted facts alleged in the SOR.”

Procedural Posture

SOR issuedAug 27, 2012
Answer filedSep 11, 2012
Hearing heldDec 19, 2012record held open until December 26, 2012 for additional submissions
Decision dateMar 5, 2013

Cite For

Insufficient Evidence to Support Allegations of Employment Termination Under Guideline E
Consideration of Positive Character References in Security Clearance Decisions
The Burden of Proof on the Government to Establish Allegations in the SOR.

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 all allegations under Guideline E in favor of the applicant, concluding that the government did not establish sufficient evidence to support the claims of personal conduct concerns. The applicant's denials and explanations were credited, leading to a decision to grant security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	The Government alleges that Company A fired Applicant in June 2004 based on a statement in a 2005 investigative report.	For Applicant	Falsification Security Form	Employment History	Denied	—	—	—
1.b	The military police report indicated that the investigator concluded that Applicant had committed an offense of simple assault consummated by a battery in January 2009.	Against Applicant	Questionable Judgment GeneralFOUND DELIBERATE	—	Denied	(a) deliberate omission, concealment, or falsification on a security form (c) credible adverse information across areas supporting a whole-person concern (e) personal conduct or concealment creating vulnerability to exploitation	(b) omission/refusal followed advice of counsel; later cooperated fully	Claimed Acknowledgment and Remorse
1.c	The Government alleges that Applicant was fired from his job with Company B, based on a statement in the police report.	For Applicant	Falsification Security Form	Employment History	Denied	—	—	—
1.d	The Government alleges that Applicant was terminated from his job with Company C due to insubordination and unprofessional behavior.	For Applicant	Rules Violation at Workplace	—	Denied	—	(e) positive steps to reduce vulnerability to exploitation	Claimed Acknowledgment and Remorse
1.e	The SOR alleges that Applicant falsified his answers on four of these documents when he did not list his terminations from Companies A, B, and C.	For Applicant	Falsification Security Form	Employment History	Denied	—	—	—
1.f	The SOR alleges that Applicant falsified his Declaration for Federal Employment form on June 4, 2009.	For Applicant	Falsification Security Form	Employment History	Denied	—	—	—
1.g	The SOR alleges that Applicant falsified his security clearance application dated December 19, 2011 and resigned on January 4, 2012 when he failed to provide an explanation for leaving his jobs with Company B and Company C.	For Applicant	Falsification Security Form	Employment History	Denied	—	—	—
1.h–1.k	4 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant		—		—	—	—

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. 12-09441 ) Applicant for Security Clearance )

For Government: Candace L. Garcia, Esquire, Department Counsel For Applicant: Alan Edmunds, Esquire

______________

STATEMENT OF CASE

______________

HENRY, Mary E., Administrative Judge:

Based upon a review of the pleadings, exhibits, and testimony, Applicant’s eligibility for access to classified information is granted.

Statement of the Case

Applicant completed and certified an Electronic Questionnaire for Investigations Processing (e-QIP) on December 19, 2011, and again on January 4, 2012. The Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) on August 27, 2012, detailing security concerns under Guideline E, Personal Conduct. The action was taken under Executive Order 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 Adjudicative Guidelines For Determining Eligibility for Access to Classified Information (AG) implemented on September 1, 2006. Applicant received the SOR on September 11, 2012, and he answered it on the same day. Applicant retained counsel and requested a hearing before an administrative judge with the Defense Office of Hearings and Appeals (DOHA). Department Counsel was prepared to proceed on October 9, 2012, and I received the case assignment on October 22, 2012. DOHA issued a Notice of Hearing on November 26, 2012, and I convened the hearing as scheduled on December 19, 2012. The Government offered exhibits (GE) marked as GE 1 through GE 10, which were received and admitted into evidence without objection. Applicant testified. He submitted exhibits (AE) marked as AE A through AE S, which were received and admitted into evidence without objection. I held the record open until December 26, 2012, for Applicant to submit additional matters. Applicant timely submitted AE T - AE U,1 which were received and admitted without objection. The record closed on December 26, 2012. DOHA received the hearing transcript (Tr.) on January 4, 2013.

PROCEDURAL RULINGS

Notice

Applicant received the notice of the date, time and place of the hearing on December 14, 2012, less than 15 days before the hearing. I advised Applicant of his right under ¶ E3.1.8 of the Directive to receive the notice 15 days before the hearing. After consulting with counsel, Applicant affirmatively waived this right under the directive. (Tr. 9.)

FINDINGS OF FACT

In his Answer to the SOR, Applicant denied all the factual allegations in the SOR.2 He also provided additional information to support his request for eligibility for a security clearance. After a complete and thorough review of the evidence of record, I make the following findings of fact.

Applicant, who is 55 years old, works as a linguist and cultural advisor for a DOD contractor. Applicant has worked in this capacity since 2005 for several DOD contractors, and he began his current employment in December 2011. He is currently working in Afghanistan. He worked in Iraq for several years. Applicant speaks fluent Arabic and English. He also speaks Aramaic, Chaldean, and Spanish.3

Applicant worked in Iraq as a linguist and cultural advisor in 2005, 2007 and 2010. Applicant submitted five letters of recommendation from individuals who worked with him in Iraq. Each person described him as a professional with an excellent work ethic and interpersonal skills, and a person upon whom they could rely for sound advice about the Iraqi culture. The Deputy Commanding General for Support, a Brigadier General, advised that Applicant accompanied him every day and was present during all his interactions with Iraqi leadership and the people on the street. The General trusted Applicant with sensitive information, which included Applicant’s participation in classified briefings. In a handwritten note on his letter of recommendation, the General wrote: “outstanding! Someone I trust completely!” A Marine Corps commanding officer recommended a former employer hire Applicant because he possessed excellent language and human interaction skills. This officer indicated that he would again serve with Applicant. Applicant received a favorable recommendation for his recent work in Afghanistan.4

Applicant submitted a copy of the 20 civilian coins given to him for his service in Iraq. He received a coin from General Petraeus for his service to the general. He also received coins from brigade commanders, other generals, and military officers as well as from the Jordanian military. Applicant submitted three Certificates of Appreciation for his work in Iraq and Afghanistan, and four pictures showing him with military units. His most recent performance evaluation, dated November 18, 2012, reflects outstanding work by Applicant, who received the maximum score of 50. His rater described him as an outstanding linguist, who is a forward thinker with a true understanding of his role and the mission and who shows sound judgment. His performance evaluation indicates he received two letters of recommendation, one from a company manager and the other from a flag officer, for his outstanding work during the evaluation period.5

In 2004, Applicant accepted a position as a category 1 linguist with Company A. He started training with this company. He left about three weeks later, when he learned that he could make more money as a linguist if he had his citizenship.6 Company A rehired him as a linguist in July 2005. In July 2005, a government investigator met with Applicant. The investigator’s report stated: “Candidate was fired after working for [Company A] for four days in 2004 because he was accused of fighting with another worker which candidate denies.” Neither party submitted documentation from Company A that substantiates or refutes this statement. Applicant denies that he was fired from Company A in 2004.7 He never received any documentation from Company A which stated he was fired from his position.

Applicant was born and raised in Iraq as a member of a religious minority, not a Muslim. After Saddam Hussein came into power in 1979, discriminatory practices began against religious minorities. Members of religious minorities were not allowed to attend school or church. In 2003, the problems increased. In Iraq, the tension between religious minorities and Shites, or Shias, remains because of religious differences. While in Iraq, Applicant experienced conflicts with a person known as A, a Shite. Applicant related their conflicts to religious differences and A’s resentment of Applicant’s position as an advisor and linguist to the command.8

On January 23, 2009, Applicant filed a complaint with the proper officials in his section in Iraq about “the loud noise and fake roommates” coming from A’s room. He asked to remain anonymous because he had been assaulted by A. Two military specialists overheard the conversation. They spoke with Applicant, who repeated the facts about the assault and told them that A threatened to “cut him into pieces” if he saw Applicant on the street. Applicant showed the military specialists a bruise on the left side of his head. After speaking with A, the military specialists did not charge either A or Applicant because both claimed simple assault by the other.9

The military specialists forwarded the case to the military police investigators, who conducted interviews of A, Applicant, and five individuals with knowledge of the incident. Based on the oral statements of one witness, whom Applicant describes as A’s friend, the investigating officer concluded that Applicant assaulted A and found Applicant had committed a simple assault consummated by a battery, an offense under the Uniform Code of Military Justice. The investigating officer did not mention the bruise on Applicant’s head, which is referenced in the police report. The investigating police officer noted that Applicant had been terminated from his job at Company B10 and had left the country. The incident report reflects that five sworn statements were taken by the investigating officer, but none of these statements are attached to the report. The investigating officer did not explain what the other witnesses said or why he relied upon only the statement of one person. Applicant denied assaulting A and denied being terminated from his job. Applicant returned home after the incident to assist his wife, who had surgery earlier in the month. Applicant felt threatened by A and feared injury from A or his family if Applicant left the military base. The record does not contain a copy of a termination report from Applicant’s employer, Company B.11

In January 2010, Company C hired Applicant to work in Iraq as a linguist for six months. His supervisor routinely transferred him from base to base without an assignment. She gave him duty assignments, but he did not work every day. In April 2010, his supervisor terminated his employment. As a reason for her decision, she indicated in her report that upon his arrival at a mission site, Applicant began fighting with other interpreters over living quarters and demanded to be flown back to Baghdad. She determined his actions amounted to insubordination and violated the policy statement he signed when he arrived on site, which stated that unprofessional behavior was grounds for termination. She then wrote that Applicant violated the terms of his contractual agreement with Company C because he refused to perform “down range duty” and terminated his employment after three months. The counseling statement indicates that Applicant refused to sign it. Applicant denies receiving the report and refusing to sign it because he never met with his supervisor before he left the job. Applicant worked for Company D, who assumed the Company C contract.12

Between July 2005 and December 2011, Applicant completed six security clearance questionnaires and one Declaration for Federal Employment form. The SOR alleges that he falsified his answers on four of these documents when he did not list his terminations from Companies A, B, and C. Applicant denies that he intentionally falsified his answers on these documents. Applicant did not believe that he had been terminated from these jobs.13

When Applicant completed his security clearance applications on July 9, 2005, March 17, 2006, and April 14, 2006, he listed his employment with Company A. In the March 17, 2006 and April 14, 2006 applications, he gave the dates of employment at Company A as July 2005 through February 2006. He also listed working for this company in June 2004 on each application. He did not list a reason for leaving his jobs with Company A or any other company on his applications. In each application, Section 22 asks if Applicant has been fired from a job, quit after being told he would be fired, left a job by mutual agreement following allegations of misconduct, of unsatisfactory performance or for other unfavorable circumstances. Applicant answered “no” which the SOR alleges (1.e) was a falsification of his March 18, 2006 application as he had been fired from Company A in 2004. Applicant denied intentionally falsifying his answer because he voluntarily left his 2004 employment.14 Applicant completed his Declaration for Federal Employment form on June 4, 2009 and attached his resume. He answered “no” to question 12, which asks if he had been fired from any job, quit after being told he would be fired, left a job by mutual agreement because of a specific problem, or was debarred from federal employment. He did not explain or give a reason for his departure from any of his jobs on his resume.15 SOR allegation 1.galleges that Applicant falsified this form because he did not list his job terminations with Company A and Company B. Applicant denies being terminated from these jobs and thus, any falsification of this form.16

Three weeks later, Applicant signed and completed an e-QIP, dated June 29, 2009. Applicant listed six jobs, including his then current job. For three jobs, he provided a reason for leaving the position and for two jobs, he did not provide a reason for leaving the position. The SOR alleges that Applicant falsified his explanation for leaving Company B when he stated that he left the job for “family reasons” instead of stating that he had been terminated from his job with Company B. Applicant denies he was terminated and falsification of his answer.17

The SOR alleges that Applicant falsified his security clearance application dated December 19, 2011 and resigned on January 4, 2012 (SOR ¶ 1.h - 1.k) when he failed to provide an explanation for leaving his jobs with Company B and Company C, both of whom terminated his employment. Applicant listed six jobs on his application, including his current job. He provided no explanation for leaving any position. Applicant denies his failure to provide this information was an intentional falsification.18

POLICIES

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

These guidelines are not inflexible rules of law. Instead, recognizing 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. According to AG ¶ 2(c), 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 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.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, 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. . . .” An applicant has the ultimate burden of persuasion for obtaining a favorable security decision.

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 an 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 Executive Order 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern pertaining to personal conduct:

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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying: (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 security clearance 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 person may not properly safeguard protected information;

(e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, . . .; and

(f) violation of a written or recorded commitment made by the individual to the employer as a condition of employment.

The Government alleges that Company A fired Applicant in June 2004 based on a statement in a 2005 investigative report. In 2005, Applicant denied that he was fired in 2004, and throughout this process, he continued to deny that he was fired by Company A in June 2004. The investigator did not show Applicant a copy of a dismissal letter or report from Company A, nor did the investigator explain the source of this information. Neither party provided a copy of Applicant’s personnel record from Company A for 2004. One year after Company A supposedly fired Applicant, it hired him to work as a translator in Iraq, a job he did for six or seven months. Applicant acknowledged working for Company A in 2004 on his 2005 and 2006 security clearance applications. Because Applicant has continually denied being fired from Company A in 2004 and Company A rehired him in 2005, something more than this statement is needed to establish that he was fired. Because I accord little weight to the statement in the investigative report, there is insufficient evidence to establish that Applicant was fired by Company A in 2004. SOR allegation 1.a is found in favor of Applicant.

The military police report indicated that the investigator concluded that Applicant had committed an offense of simple assault consummated by a battery in January 2009. The Government has established SOR ¶ 1.bunder AG ¶¶ 16(c) and 16(e) based on this report.

Associated with this charge, the Government alleges that Applicant was fired from his job with Company B, based on a statement in the police report. The investigating police officer stated that Applicant had been terminated from his job, but did not explain whether terminated meant Applicant had been fired, left the job for any reason, or left the job for personal reasons. Applicant left the job after reporting problems with A and because he feared harm from A. He returned home to help his wife who had surgery earlier in the month. Again, outside of an embedded hearsay statement in the police report, the record lacks any evidence from Company B that it fired Applicant. In light of Applicant’s denial that he was fired, the evidence of record is insufficient to establish SOR allegation 1.c, which is found in favor of Applicant.

The report from Company C provided sufficient evidence to show that Company C terminated Applicant’s employment in April 2010. The Government established its case for SOR ¶ 1.dunder AG ¶¶ 16(e) and 16(f).

The Government alleges seven incidents of falsification by Applicant when he completed his five security clearance applications and one federal employment form. For AG ¶ 16(a) to apply, Applicant’s omissions must be deliberate. The Government established that Applicant omitted material facts from his security clearance applications, when he failed to explain the circumstances and the reasons for his departure from his jobs with Company A, Company B, and Company C. By answering “no” to questions which sought any negative information about his reasons for leaving his employment with Company B and Company C, he also omitted material facts from his security clearance applications. This information is material to the evaluation of Applicant’s trustworthiness and honesty. In his response and at the hearing, he denied that he intentionally falsified his answers on his e-QIP and had an intent to hide employment issues from the Government. When the allegation of falsification is controverted, the Government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant’s intent or state of mind at the time the omission occurred.19

Applicant continually denied that he was fired from his position at Company A and at Company B. Because he did not believe he was fired from either company, Because Company A rehired him in 2005, and because there is no credible evidence from either employer to show he was fired, he did not intentionally falsify his March 18, 2006 security clearance application when he answered “no” to Section 22 or his June 4, 2009 Declaration of Federal Employment form when he answered “no” to question 12. SOR allegations 1.e and 1.gare found in favor of Applicant.

The record contains five security clearance applications completed by Applicant between 2005 and 2011. Applicant did not provide a reason for leaving any of his jobs on these applications, except for his June 29, 2009 application, where he gave a reason for leaving for three of the five jobs listed in his application. Since he did not list a reason for leaving many of his jobs on multiple occasions in the applications, his intent to falsify his security clearance applications is not established. More specifically, Applicant credibly testified that he left Company B (allegations 1.f, 1.I, and 1.k) because he feared harm from A and to assist his wife, who was recovering from surgery. Furthermore, the record lacks any credible evidence that Company B fired him. Applicant’s working relationship with Company C, and in particular with his supervisor, was troubled. His supervisor continually changed his work site, but did not assign him any duties. Her explanation that he did not want to work “down range” is less credible in light of his earlier work in combat areas and the coins given to him by high-ranking military commanders in recognition of his work. Applicant credibly testified that he never saw the termination report prepared by his supervisor. SOR allegations 1.f, 1.h, 1.i, 1.j, and 1.kare found in favor of Applicant.

AG ¶ 17 provides conditions that could mitigate security concerns:

(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;

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and

(f) the information was unsubstantiated or from a source of questionable reliability.

Applicant complained to the police about the behavior of A and reported to the police that A assaulted him. He asked to remain anonymous because he feared retribution from A. The initial investigator declined to file charges because he believed both parties assaulted each other. The second investigator decided Applicant had assaulted A based on the statement of one witness, without discussing the statements of the four other witnesses and without explaining why he did not credit these statements in his report. The investigator did not discuss or explain the bruise on Applicant’s head from being hit by A, which is listed in the report. The conclusion reached by the second investigator is entitled to little weight because facts in the underlying documentation are not discussed. Applicant mitigated SOR allegation 1.bunder AG ¶ 17(f).

Applicant’s service to the United States in a combat zone and the high praise by the military command for his work reflects that he is an individual who would not be vulnerable to exploitation, manipulation or duress because of his problematic working relationship with his supervisor at Company C. A brigadier general completely trusts him after working with him. Applicant has mitigated any security concerns raised by SOR allegation 1.dunder AG ¶ 17(e) and under the whole-person concept.

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 an applicant’s conduct and all relevant circumstances. The 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. The decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern.

The evidence in support of granting a security clearance to Applicant under the whole-person concept is more substantial than the evidence in support of denial. In reaching a conclusion, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Problems arose in Applicant’s workplace, and in this case, particularly with Applicant’s employment at Company C, and with his working relationship with A, when he worked at Company B. Applicant became seriously concerned about the conduct of A, a coworker in Iraq. He reported his concerns to the police, which resulted in two investigations. One investigation found both Applicant and A at fault, and the second investigation found only Applicant at fault without clearly explaining the reasons for ignoring statements made by four witnesses and relying on the statement of one witness, a friend of A. The conclusions of the second investigator leave many unanswered questions about Applicant’s complaint.

In reviewing all the evidence of record, I find that the weight of the evidence is favorable to Applicant. He has served as a linguist for the United States in a war zone and at the highest levels in the war zone. As a civilian, he received many coins from military commanders and units, including General Petraeus, for his work as a linguist and cultural advisor. Those who have worked with him praise his work and trust him. One brigadier general described Applicant as outstanding and completely trustworthy after working with him. Applicant’s service to the United States outweighs the problems he experienced in the work place when he worked for Company B and Company C. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his personal conduct under Guideline E.

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

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: For Applicant Subparagraph 1.f: For Applicant Subparagraph 1.g: For Applicant Subparagraph 1.h: For Applicant Subparagraph 1.i: For Applicant Subparagraph 1.j: For Applicant Subparagraph 1.k: 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.

MARY E. HENRY Administrative Judge

FOOTNOTES

03/05/2013 1Applicant’s submissions included 1) a cover letter from a staff member of Applicant’s counsel, 2) an unsigned and undated letter from Applicant (AE T), and 3) a certificate of appreciation (AE U). Applicant also submitted the original of AE R, which was admitted at the hearing.

2 When SOR allegations are controverted, the Government bears the burden of producing evidence sufficient to prove controverted allegations. Directive, ¶ E3.1.14. “That burden has two components. First, the Government must establish by substantial evidence that the facts and events alleged in the SOR indeed took place. Second, the Government must establish a nexus between the existence of the established facts and events and a legitimate security concern.” See ISCR Case No. 07-18525 at 4 (App. Bd. Feb. 18, 2009), (concurring and dissenting, in part) (citations omitted). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 08-06605 at 3 (App. Bd. Feb. 4, 2010); ISCR Case No. 08-07290 at 2 (App. Bd. Nov. 17, 2009). 3GE 4; Tr. 23.

4 AE A - AE F.

5 AE H; AE P; AE Q; AE S; Tr. 27-30.

6 Applicant took his citizenship exam in March 2003 and became a naturalized U.S. citizen in January 2006. The 2005 investigator indicated Applicant held a green card and was waiting to be called to take his citizenship oath. GE 1; GE 8. 7GE 3 - GE 8; Tr. 34-37.

8 Tr. 37-44.

9 GE 9; Tr. 37-44.

10 The word terminated is not explained in the police report. The dictionary defines terminate as to extend only to a limit (as a point or line); to form an ending, to come to an end in time; close, to form the conclusion; to discontinue employment, and to serve an ending, limit, or boundary. See Merriam-Webstser’s Collegiate Dictionary 11th Ed. 2003. In the employment context, the word terminated has several meanings, including end of work contract, left job for new position, retired, resigned, or fired. 11GE 9; AE R; Tr. 37-44.

12 GE 10; Tr. 44-45, 66-74.

13 Response to SOR; GE 1 - GE 7; Tr. 46-47.

14 GE 5- GE 7; Tr. 46-47. 15Under common practice, reasons for leaving a job are not shown on a resume.

16 SOR; GE 4; Tr. 46-47.

17 SOR; GE 3; Tr. 46-47.

18 SOR; GE 1; GE 2; Tr. 46-47. 19See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004)).