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ISCR Case 00-0682.h1 — CASE

ISCR Case 00-0682.h1denied

Case Headnote

ISCR Case No. 00-0682.h1

deniedAug 9, 2001· Hon. Robert Robinson Gales· hearing

Summary

A 51-year-old applicant was denied a TOP SECRET security clearance, primarily under Guideline J (Criminal Conduct). The denial stemmed from a December 1998 arrest for aggravated assault with a deadly weapon, a third-degree felony, which was later reduced to improper exhibition of a dangerous weapon. This incident raised significant concerns regarding the applicant's judgment and reliability.

Further issues arose from the applicant's lack of candor on his January 1999 SF 86, where he failed to disclose the criminal conduct. This omission was determined to be willful falsification, further undermining his credibility. The applicant's actions were also perceived as intimidating and threatening, contributing to the decision.

The combination of the criminal conduct and the deliberate misrepresentation on his security clearance application led to the denial. Disqualifying conditions J1, J2, E1, and E2 were cited in the Statement of Reasons.

Why the Applicant Was Denied

The applicant was arrested for aggravated assault with a deadly weapon, raising serious concerns about his judgment and reliability.
The applicant's lack of candor on his SF 86 regarding his criminal conduct was deemed willful falsification.
The applicant's actions were perceived as intimidating and threatening, undermining his credibility.

Conditions Referenced

Disqualifying

J1raisedCriminal ConductThe applicant was arrested and charged with criminal conduct.
J2raisedCriminal ConductThe applicant's conduct involved a serious crime.
E1raisedPersonal ConductThe applicant provided unreliable information regarding his employment history.
E2raisedPersonal ConductThe applicant's actions demonstrated a pattern of dishonesty.

Key Rule Quoted

“A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.”

Procedural Posture

SOR issuedFeb 23, 2001
Answer filedApr 6, 2001Applicant requested a hearing.
Hearing heldJun 13, 2001
Decision dateAug 9, 2001

Cite For

Disqualifying Conditions Under Guideline J for Criminal Conduct
Willful Falsification of Information on SF 86
Importance of Candor in Security Clearance Applications

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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on both allegations under Guideline J, citing a history of criminal conduct that raised serious concerns about the applicant's judgment and reliability. The applicant's arrest for aggravated assault and subsequent plea bargain were significant factors in the decision to deny the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The applicant was arrested for aggravated assault with a deadly weapon without intent to kill, a felony in the 3rd degree, which was eventually reduced to improper exhibition of a dangerous weapon.	Against Applicant	Assault or Battery	Diversion or Deferred	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	The applicant failed to be candid regarding the incident on his SF 86 in January 1999.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(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

DATE: August 9, 2001

In Re:

------------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 00-0682

DECISION OF ADMINISTRATIVE JUDGE

ROBERT ROBINSON GALES

SYNOPSIS

Fifty-one year old Applicant's December 1998 arrest for aggravated assault with a deadly weapon without intent to kill, a felony in the 3rd degree (which was eventually reduced to improper exhibition of a dangerous weapon), and the plea bargain resulting in pretrial diversion and a Nolle Prosequi, his suspension and eventual termination from his job as a security guard, and his failure to be candid regarding the incident on his SF 86 in January 1999 raise grave questions and doubts as to his security eligibility and suitability. Clearance is denied.

STATEMENT OF CASE

On February 23, 2001, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, "Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, "Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an Administrative Judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn written statement, dated April 6, 2001, Applicant responded to the allegations set forth in the SOR, and requested a hearing. The case was initially assigned to Administrative Judge John R. Erck on May 21, 2001, but, due to caseload considerations, was subsequently reassigned to, and received by, this Administrative Judge on May 23, 2001. A notice of hearing was issued on May 25, 2001, and the hearing was held before me on June 13, 2001. During the course of the hearing, eight Government exhibits, and five Applicant exhibits, along with the testimony of one Government witness and one Applicant witness (the Applicant), were received. The transcript (Tr.) was received on June 20, 2001.

RULINGS ON PROCEDURE During the proceeding, Applicant offered what had been identified as Applicant Exhibit E for identification, consisting of portions of state statutes, taken off the Internet, pertaining to court-ordered sealing of criminal history records. Department Counsel objected to the exhibits on the grounds that the authentication of the content of the printed portions of the purported statutes had not been established. The parties agreed with my taking Official Notice of the statutes pursuant to Rule 201.4, Federal Rules of Evidence (F.R.E.). Upon my review of the state statute in issue, I have taken Official Notice of the statute which states, in part: (1)

A criminal history record of a minor or an adult which is ordered sealed by a court of competent jurisdiction pursuant to this section is confidential and exempt from the provisions of . . . the State Constitution and is available only to the person who is the subject of the record, to the subject's attorney, to criminal justice agencies for their respective criminal justice purposes, or to those entities set forth in subparagraphs (a)1., 4., 5., and 6. for their respective licensing and employment purposes.

(a) The subject of a criminal history record sealed under this section or under other provisions of law, . . . may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:

1. Is a candidate for employment with a criminal justice agency;

2. Is a defendant in a criminal prosecution;

3. Concurrently or subsequently petitions for relief under this section or s. 943.0585;

4. Is a candidate for admission to the [state] Bar;

5. Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly. . . ; or

6. Is seeking to be employed or licensed by the Office of Teacher Education, Certification, Staff Development, and Professional Practices of the Department of Education, any district school board, or any local government entity which licenses child care facilities.

(b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, . . . may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite of acknowledge a sealed criminal history record.

FINDINGS OF FACT

Applicant has admitted a portion of one of the factual allegations pertaining to criminal conduct matters under Guideline J (portion of subparagraph 1.a.) as well as one of the factual allegations pertaining to personal conduct under Guideline E (subparagraph 2.a.). Those admissions are incorporated herein as findings of fact. He denied the remaining factual allegations pertaining to personal conduct (subparagraphs 2.b. and 2.c.), as well as the remaining portion of the allegation pertaining to criminal conduct (portion of subparagraph 1.a.); and failed to respond to the conclusory allegation pertaining to criminal conduct (subparagraph 1.b.).

After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 51 year old male employed by a defense contractor, and he is seeking to retain the TOP SECRET security clearance which was initially granted to him in 1988.

Applicant has a lengthy employment history as a security guard. He was employed as a security guard by one particular government contractor (contractor A) at a certain facility from July 1988 until October 1998 when contractor A lost the contract. (2) His employment was continued in November 1998 when his duties were absorbed by the government contractor (contractor B) which succeeded contractor A on that contract at the same facility. Applicant continued to serve as a security guard with contractor B until an incident occurred at work on December 12, 1998, and he was arrested by police authorities. (3)

On December 12, 1998, while on duty as a uniformed roving patrol officer, Applicant approached a female employee of a contractor working with contractor B, in her office, and made some small talk. She did not know him and had never seen him before. He said something to the effect: "Why don't I close the door and window and pull the shades." (4) He then pulled out a "lock-blade" pocket knife, described by one investigator as approximately five inches in length, (5) but by Applicant as only having a blade of about 2.25 to 2.5 inches in length, (6) and, while laughing, stated he would cut her bib-overall straps and "go from there." (7) He then made a cutting noise with his mouth and moved the knife in front of him as if cutting the straps. Applicant also indicated he would teach her to play poker, and when she replied she did not play cards, he stated that was not the kind of poker he was referring to. Shortly thereafter, he departed the area without ever touching the woman.

The female employee, described as five feet two inches, weighing 102 pounds, (8) as compared with Applicant, described as six feet four inches, weighing approximately 300 pounds, (9) felt very intimidated and threatened by the entire episode. (10) She reported the incident to the authorities.

During the ensuing investigation, Applicant, by now escorted by another guard, apologized and indicated he was only kidding around. (11) The police did not agree, and he was arrested and charged with aggravated assault with a deadly weapon without intent to kill, (12) a felony in the 3rd degree. The charge was eventually reduced to improper exhibition of a dangerous weapon, and Applicant accepted a plea bargain offered by the state. He was placed in the pretrial diversion program for a period of 12 months; ordered to pay a $600.00 program fee; directed to pay $50.00 to the county victim/witness program; ordered to have no contact with the victim; directed to undergo an evaluation by a psychologist; placed on probation; and entered into an anger management counseling program. (13) The state entered a Nolle Prosequi on July 27, 1999, and the charge was dismissed. (14)

As a result of the December 12th incident, Applicant was immediately suspended without pay by his employer. (15) In response, he filed a grievance through his union representative in January 1999, alleging his suspension was a violation of the Collective Bargaining Agreement. (16) The grievance was unsuccessful, and on July 16, 1999, Applicant's employment was terminated. (17) Once again, in response to the employer action, Applicant filed a grievance through his union representative in July 1999, alleging his termination was a violation of the Collective Bargaining Agreement. (18) The grievance process continued through an unsuccessful arbitration, and Applicant eventually was finally terminated. In this regard it is unclear if the termination became effective in November 1999, (19) as contended by Applicant, or immediately following the arbitrator's Opinion and Award, issued on December 22, 1999. (20)

In January 1999, while still in an unpaid suspension status with contractor B, Applicant accepted employment elsewhere as a security guard with contractor C. (21) Contractor C was eventually taken over by contractor D, and Applicant continues to be employed as a security guard with that entity. (22)

At some unspecified date after his employment commenced with contractor C, Applicant was removed from a particular contract, at the request of the company for which contractor C was providing security services, after a female security guard made a discrimination complaint against Applicant. (23) The complaint was referred directly to the company rather than to contractor C. Applicant admitted the removal action but attributed it to improper administrative procedures by his sergeant and institutional problems at the company. (24) He claims he was merely offering guidance to one of his female security guards that it was unwise to date single men she was working with while working on her days off as a stripper. (25) No other material information about the incident was entered into evidence.

On January 9, 1999, Applicant completed a Questionnaire for National Security Positions (SF 86), (26) and in response to an inquiry pertaining to his employment record, ("Has any of the following happened to you in the last 7 years? If "Yes," begin with the most recent occurrence and go backward, providing date fired, quit, or left, and other information requested. Use the following codes and explain the reason your employment was ended: 1 - Fired from a job 2 - Quit a job after being told you'd be fired 3 - Left a job by mutual agreement following allegations of misconduct 4 - Left a job by mutual agreement following allegations of unsatisfactory performance 5 - Left a job for other reasons under unfavorable circumstances"), (27) Applicant responded "no." He certified his response was true, complete, and accurate. In some ways it was not true, complete, and accurate, but under the facts and circumstances of this case, for the reasons described below, I find the response was not willful falsification.

While Applicant had not included his unfavorable employment information regarding the suspension and eventual termination by contractor B, as described above, it is unclear if a suspension is even covered by the question. Furthermore, as noted by Applicant, since the SF 86 was completed on January 9, 1999, he could not be expected to include an event--the initial termination--which did not occur until July 16, 1999, at the earliest--some six months later. Applicant subsequently denied intending to deceive, and explained he had completed several versions, including the handwritten version, of the SF 86 and may have given different responses to some of the questions without intending to falsify any particular responses. (28) He also claimed he had simply signed and certified the SF 86 without reading it. (29)

When Applicant completed his SF 86, he also responded to an inquiry pertaining to his police record: ("For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the court record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607. . . . f In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in response to a, b, c, d, or e above?"). (30) Applicant responded "no." He certified his response was true, complete, and accurate. It was obviously false. Applicant subsequently denied intending to deceive, and explained he had responded in the way he did because the charges had been dismissed, his records had been sealed or expunged, and his attorney and others advised him nothing would show up on his record. (31) He also attributed his actions to guidance received from his employer human resources manager. Nevertheless, I find his falsification to have been willful.

Other than the incidents described above, the quality of Applicant's performance was not documented.

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Conditions).

An Administrative Judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision set forth in Section E2.2., Enclosure 2, of the Directive, are intended to assist the Administrative Judge in reaching fair and impartial common sense decisions.

Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. The Adjudicative Process factors which an Administrative Judge should consider are: (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 voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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.

Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case: [Criminal Conduct - Guideline J]: A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.

Conditions that could raise a security concern and may be disqualifying include:

(1) allegations or admission of criminal conduct, regardless of whether the person was formally charged;

(2) a single serious crime or multiple lesser offenses.

Conditions that could mitigate security concerns include:

(2) the crime was an isolated incident.

[Personal Conduct - Guideline E]: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

Conditions that could raise a security concern and may be disqualifying also include:

(1) reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances;

(2) the deliberate omission, concealment, or falsification of relevant and material 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;

(5) a pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the individual and the agency.

Conditions that could mitigate security concerns include:

(2) the falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;

(4) omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided.

Since the protection of the national security is the paramount consideration, the final decision in each case must be arrived at by applying the standard the issuance of the clearance is "clearly consistent with the interests of national security," (32) or "clearly consistent with the national interest." For the purposes herein, despite the different language in each, I have concluded both standards are one and the same. In reaching this Decision, I have endeavored to draw only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have attempted to avoid drawing inferences grounded on mere speculation or conjecture. Complete honesty and candor on the part of applicants for access to classified information is essential to make an accurate, meaningful security clearance determination. In this instance, Applicant has offered a number of explanations for the events

While a person should not be held forever accountable for misconduct from the past, without a clear indication of subsequent reform, remorse, or rehabilitation, I am unable to determine with reasonable certainty the probability that such conduct will not recur in the future. In this case, Applicant's continued denial as to pertinent facts which occurred in December 1998 seems to indicate incomplete rehabilitation on his part. Without more, I simply do not believe the period of time from the incident to the closing of the record, is sufficient to persuade me recurrence of such criminal conduct is unlikely. Moreover, as discussed below, Applicant's failure to be candid in his SF 86--more evidence of criminal conduct--exacerbates the situation by removing the potential consideration of Criminal Conduct Mitigating Condition (MC) E2.A10.1.3.2. Consequently, I conclude that Applicant has failed to mitigate or overcome the Government`scase. Accordingly, allegation 2.a. of the SOR is concluded against Applicant.

criminal conduct in this regard also falls within DC E2.A10.1.2.1. and DC E2.A10.1.2.2. His action also negates the potential application of MC E2.A10.1.3.2. Consequently, I conclude that Applicant has failed to mitigate or overcome the Government`scase. Accordingly, allegation 1.b. of the SOR, as it pertains to the allegation in subparagraph 2.c., is concluded against Applicant. For reasons set forth below, allegation 1.b. of the SOR, as it pertains to the allegation in subparagraph 2.b., is concluded for Applicant.

With respect to Guideline E, the Government has generally established its case. Examination of Applicant's actions related to his coworkers reveals conduct possibly involving questionable judgment, untrustworthiness, and unreliability. It should be noted the allegation technically pertains only to the undated and otherwise vague incident involving the discrimination complaint made against Applicant by a female security guard, and not the incident which occurred in December 1998. I am troubled by the allegation but even more so by the evidence which is essentially bereft of meaningful information. There is no incident report, statement by a victim, or any other meaningful evidence. The only evidence offered by the Government to support the allegation was Applicant's statement and his admission the incident occurred. Applicant's explanations, however, furnish significant doubts regarding the seriousness and materiality of the incident. Thus, I conclude Applicant has, through evidence of explanation, successfully refuted, rebutted, and overcome the Government's case

There is little dispute surrounding Applicant's lack of candor regarding his responses on the SF 86 pertaining to his police record; for, while denying the allegation, he has acknowledged the essential elements of the allegation. Notwithstanding his certification, oath, and affirmation that his responses and statements were true and accurate, Applicant willfully falsified, omitted, or concealed material facts pertaining to his police record. As noted above, Applicant

As stated above, complete honesty and candor on the part of applicants for access to classified information is essential to make an accurate, meaningful security clearance determination. Without all the relevant and material facts, a clearance decision is susceptible to error, thus jeopardizing the Nation's security. The nature of Applicant's actions and activities therefore pose a serious potential risk to the security precautions which go to the very heart of the Nation's security system. An applicant's responsibilities associated with the granting of a security clearance are considerable in terms of protecting the national security and in maintaining appropriate personal conduct. Along with the responsibilities is accountability. In this instance, Applicant is accountable for those past actions and activities. In this instance, I believe Applicant has failed to mitigate or overcome the Government's case, for the evidence leaves me with grave questions and doubts as to Applicant's continued security eligibility and suitability. Accordingly, allegation 2.c. of the SOR is concluded against Applicant. Robert Robinson Gales

Chief Administrative Judge

1. Title XLVII, Chapter 943, Section 059, Florida Statutes.

2. See Tr. at 106-107.

3. See Government Exhibit 3 (Police Report, dated December 12, 1998, attached to Report of Investigation, dated December 14, 1998), at 1.

4. Id. (Affidavit, dated December 14, 1998, attached to Report of Investigation, dated December 14, 1998), at 1.

5. Id. (Report of Investigation, dated December 14, 1998), at 3.

6. See Government Exhibit 7 (Statement, dated May 2, 2000), at 2.

7. Id. Government Exhibit 3, supra note 4, at 1.

8. Id. Government Exhibit 3, supra note 5), at 2.

9. Ibid.

10. Id., at 1.

11. Id., at 2.

12. See Government Exhibit 2 (Federal Bureau of Investigation Identification Record, undated), at 3.

13. See Government Exhibit 6 (Pretrial Diversion Contract, dated July 26, 1999), at 1-2; see also Government Exhibit 7, supra note 6, at 2-3.

14. See Applicant Exhibit B (Letter from Attorney, dated August 4, 1999). On November 28, 2000, a circuit court judge signed an order directing the arresting agency to seal all information concerning indicia of arrest or criminal history record regarding Applicant. See Applicant Exhibit C (Order, dated November 28, 2000). 15. Tr., at 107.

16. See Government Exhibit 8 (Grievance, dated January 14, 1999).

17. See Government Exhibit 5 (Letter of Termination, dated July 16, 1999). Contractor B determined Applicant was not going to be exonerated and Applicant had offered no statement in his own behalf, and the suspension was converted to a termination. See Applicant Exhibit F (Arbitrator's Opinion and Award, dated December 22, 1999), at 6.

18. See Applicant Exhibit D (Grievance, dated July 20, 1999).

19. See Response to SOR, dated April 6, 2001, at 2.

20. The Arbitrator's Opinion makes some noteworthy observations pertaining to Applicant's candor, and cited particular examples. "The [Applicant's] testimony, on the other hand, was extremely evasive, illogical, and inconsistent." See Applicant Exhibit F, supra note 17, at 10.

21. Tr., at 109.

22. Tr., at 110.

23. See Response to SOR, supra note 19, at 1-2.

24. Tr., at 74.

25. See Response to SOR, supra note 19, at 2.

26. See Government Exhibit 1 (Security Clearance Application, dated January 9, 1999).

27. Question 22.

28. Tr., at 137-38.

29. Tr., at 75.

30. Question 23.

31. See Response to SOR, supra note 19, at 2. See also Government Exhibit 7, supra note 6, at 1.

32. See Executive Order 12968, "Access to Classified Information;" as implemented by Department of Defense Regulation 5200.2-R, "Personnel

FOOTNOTES

FOR GOVERNMENT

Arthur A. Elkins, Esquire, Department Counsel

FOR APPLICANT

Pro Se

In the decision-making process, the burden of producing evidence initially falls on the Government to establish a case which demonstrates, in accordance with the Directive, it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. If the Government meets its burden, the heavy burden of persuasion then falls upon the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the Government's case, and to ultimately demonstrate it is clearly consistent with the national interest to grant or continue the applicant's clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship the Government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions under this Directive 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.

One additional comment is worthy of note. Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides industrial security clearance 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." Security clearance decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism. Nothing in this Decision should be construed to suggest I have based this decision, in whole or in part, on any express or implied decision as to Applicant's allegiance, loyalty, or patriotism.

CONCLUSION

Upon consideration of all the facts in evidence, an assessment of the witness credibility, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the following with respect to each allegation set forth in the SOR:

With respect to Guideline J, the Government has established its case. By his own admission, Applicant, while employed as a security guard, was arrested and charged with criminal conduct in December 1998. The original charge of aggravated assault with a deadly weapon without intent to kill, a felony in the 3rd degree, was eventually reduced to improper exhibition of a dangerous weapon, and Applicant accepted a plea bargain offered by the state. After a successful period in the pretrial diversion program, the state entered a Nolle Prosequi on July 27, 1999, and the charge was dismissed. This action is dissimilar from an acquittal, as Applicant was not exonerated of the charge, and the underlying criminal conduct was not discounted by the court. Applicant's criminal conduct in this regard clearly falls within Criminal Conduct Disqualifying Condition (DC) E2.A10.1.2.1. and DC E2.A10.1.2.2.

of December 1998, but as stated by the arbitrator in his grievance against contractor B, his "testimony. . . was extremely evasive, illogical, and inconsistent." I conclude the victim of Applicant's unsolicited attention was accurate in her recitation of the events, while Applicant's actions were both partially in jest and partially serious, the intimidation and threats felt by the victim minimized any possible jest factor. I further believe the subsequent actions of the court support these conclusions.

Statements made by an applicant for access to classified information encompass matters within the jurisdiction of the Department of Defense, as provided for under Title 18, United States Code, Section 1001. It is also accurate to characterize Applicant's response to the inquiry pertaining to his police record, as false. But the analysis does not stop there. Applicant has offered alternative explanations for failing to be forthright and candid on his SF 86 regarding his police record. He has attributed his actions to reliance on the advice of an attorney and the human resources manager of his employer; failure to carefully read the SF 86 and his responses on the various versions of same; and the protection of state law.

As to the first two explanations, Applicant has offered no evidence, in the form of affidavit or testimony, from the cited individuals to support his contentions. As to the protection afforded by state law, I conclude the reliance is misplaced. As noted above, the statute cited provides "a person who has been granted a sealing under [the statute] . . . may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite of acknowledge a sealed criminal history record." Applicant has not been charged with perjury or made otherwise liable under the state law for his lack of candor, and the statue does not preclude the Government from performing a thorough background investigation into Applicant's suitability or eligibility for a security clearance. The question regarding police record was very clear in its guidelines: "report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the court record." Applicant had an affirmative obligation to make his response true, complete, and accurate, but he chose otherwise. His

with respect to his alleged personal conduct as it pertains to the discrimination complaint and subsequent reassignment of duties. I have considered the mitigating conditions of Guideline E but do not therefore have to reach a conclusion as to their applicability. Accordingly, allegation 2.a. of the SOR is concluded in favor of Applicant.

Examination of Applicant's actions related to his answer on the SF 86 in January 1999, pertaining to his employment record, reveals his response was, in fact, more true than not, and not a calculated and deliberate omission of information. There is no credible direct, circumstantial, or rebuttal evidence supporting the contention Applicant intentionally or knowingly intended to deceive anyone with his response. While Applicant did not include his unfavorable employment information regarding the suspension and eventual termination by contractor B, as described above, it is unclear if a suspension is even covered by the question. By the very terms of the question, as of January 9, 1999, Applicant was not yet fired. That action first appeared in July 1999. He had not yet quit after being told he would be fired. He never volunteered to relinquish his job. He had not left the job by mutual agreement following allegations of misconduct. To the contrary, he eventually filed a grievance to reverse the suspension. And he had not left the job by mutual agreement following circumstances of unsatisfactory performance. The basis for the suspension was his arrest and pending criminal action, not poor performance. The only possible relevant code and reason might be "left a job for other reasons under unfavorable circumstances." However, in light of Applicant's grievance to reverse the suspension, it is doubtful the scope of the inquiry was intended to include suspensions. As noted by Applicant, since the SF 86 was completed on January 9, 1999, he could not be expected to include an event--the initial termination--which did not occur until July 16, 1999, at the earliest--some six months later. Thus, I conclude that Applicant has, through evidence of explanation, successfully refuted, rebutted, and overcome the Government's case with respect to his personal conduct. I have considered the mitigating conditions of Guideline E but do not therefore have to reach a conclusion as to their applicability. Accordingly, allegation 2.b. of the SOR is concluded in favor of Applicant.

attributed his actions to reliance on the advice of an attorney and the human resources manager of his employer, but offered no evidence from the cited individuals to support his contentions, thus negating the possible applicability of Personal Conduct MC E2.A5.1.3.4. He also attributed his actions to his failure to carefully read the SF 86 and his responses on the various versions of same, but that explanation is inconsistent with his remaining justification for not being candid--the state law shield.

The question regarding police record was very clear in its guidelines: "report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the court record." Applicant had an affirmative obligation to make his response true, complete, and accurate, but he chose otherwise. His personal conduct in this regard falls within Personal Conduct DC E2.A5.1.2.2.

For the reasons stated, I conclude Applicant is not eligible for access to classified information.

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: AGAINST THE APPLICANT

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: Against the Applicant

Paragraph 2. Guideline E: AGAINST THE APPLICANT

Subparagraph 2.a.: For the Applicant

Subparagraph 2.b.: For the Applicant

Subparagraph 2.c.: Against the Applicant

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.

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Security Program," dated January 1987, as amended by Change 3, dated November 8, 1995, and further modified by memorandum, dated November 10, 1998. However, the Directive, as amended by Change 4, dated April 20, 1999, uses both "clearly consistent with the national interest" (see Sec. 2.3.; Sec.2.5.3.; Sec. 3.2.; and Sec. 4.2.; Enclosure 3, Sec. E3.1.1.; Sec. E3.1.2.; Sec. E3.1.25.; Sec. E3.1.26.; and Sec. E3.1.27.), and "clearly consistent with the interests of national security" (see Enclosure 2, Sec. E2.2.3.); and "clearly consistent with national security" (see Enclosure 2, Sec. E2.2.2.)