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ISCR Case 02-33058.h1 — CASE

ISCR Case 02-33058.h1granted

Case Headnote

ISCR Case No. 02-33058.h1

grantedApr 23, 2004· Hon. Richard A. Cefola· hearing

Summary

A 24-year-old defense contractor employee was granted a security clearance despite initial concerns under Guideline E (Personal Conduct). The Statement of Reasons alleged that the Applicant answered "No" to question 26 on his July 2002 Security Clearance Application, which asked about arrests, charges, or convictions within the last seven years. This response was made despite a past arrest for Disorderly Conduct.

The judge determined that the Applicant had misinterpreted the question, believing it only required disclosure of convictions, not arrests. There was no evidence of willful falsification or intent to deceive the government. The Applicant had no other arrests and provided credible testimony.

Ultimately, the judge found no willful falsification, applying mitigating conditions that outweighed the disqualifying conditions. Consequently, the security clearance was granted.

Why the Applicant Prevailed

The Applicant misread the question on the Security Clearance Application, believing it required disclosure only if convicted.
There was no evidence of willful falsification or intent to deceive the Government.
The Applicant had no other arrests and demonstrated credible testimony.

Conditions Referenced

Disqualifying

E2.A5.2.1rejectedDeliberate Omission, Concealment, or FalsificationThe judge found no evidence of deliberate omission or concealment.

Mitigating

E2.A5.1.3appliedThe Behavior Was Not Recent and Was an Isolated Incident
E2.A5.1.2appliedThe Applicant's Age and Maturity at the Time of the Conduct
E2.A5.1.4appliedThe Applicant's Credible Testimony and Lack of Intent to Deceive

Key Rule Quoted

“The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places.”

Procedural Posture

SOR issuedSep 22, 2003
Answer filedOct 29, 2003
Hearing heldMar 24, 2004
Decision dateApr 23, 2004

Cite For

Misinterpretation of Application Questions Under Guideline E
Absence of Willful Falsification as a Basis for Granting Clearance
Consideration of Age and Maturity in Personal Conduct Cases

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 Applicant misread a question on his Security Clearance Application regarding a past arrest for Disorderly Conduct, believing it did not require disclosure due to the charge being dismissed and expunged. The judge found no willful falsification and ruled in favor of the Applicant, granting the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In answering question 26 on his July 2002 SCA, the Applicant answered "No," that in the last seven years he had not "been arrested for, charged with or convicted of any offense . . ."	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	—	(a) prompt, good-faith correction before being confronted	—

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

DATE: April 23, 2004 In Re: -----------------. SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-33058 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

SYNOPSIS The Applicant answered "No" to question 26 on his Security Clearance Application (SCA). He misread the question, and thought that, as the charge against him was dismissed and was later expunged, he did not have to list the underlying arrest for Disorderly Conduct. The Applicant has had no other arrests. As there was no wilful falsification, Guideline E is found for the Applicant. Clearance is granted.

STATEMENT OF CASE

On September 22, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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 the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked. Applicant filed an Answer to the SOR on October 29, 2003. The case was received by the undersigned on February 6, 2004. A notice of hearing was issued on February 27, 2004, and the case was heard on March 24, 2004. The Government submitted documentary evidence. Testimony was taken from the Applicant. The transcript was received on April 6, 2004. The issue raised here is whether the Applicant's alleged Personal Conduct militates against the granting of a security clearance. [The Applicant denies the allegation.]

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the documents and the live testimony. The Applicant is 24 years of age, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact. Personal Conduct In September of 1997, the Applicant got into a fight while attending high school (Transcript (TR) at page 15 line 8 to page 16 line 22). He and the other individual, who threw the first punch, were arrested for Disorderly Conduct (id). The other individual did not show up at the arraignment; and as a result, the charge was dismissed, and subsequently expunged from the Applicant's record (TR at page 16 line 23 to page 21 line 10). He has had no other arrests (TR at page 25 lines 10–19). 1.a. In answering question 26 on his July 2002 SCA, the Applicant answered "No," that in the last seven years he had not "been arrested for, charged with or convicted of any offense . . ." (Government Exhibit (GX) 1 at page 6). The Applicant misread the question, and thought it read "and convicted" not "or convicted" (TR at page 19 line 22 to page 20 line 6). He had absolutely no intention of deceiving the Government (TR at page 26 line 6 to page 29 line 3).

POLICIES

Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern. Furthermore, as set forth in the Directive,"[each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature, extent and seriousness of the conduct and surrounding circumstances. b. Frequency and recency of the conduct. c. Age and maturity of the applicant. d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved. e. Absence or presence of rehabilitation. f. Probability that circumstances or conduct will continue or recur in the future." The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. The Government must make out its case under Guideline E (personal conduct); which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required. Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance. Personal conduct is conduct involving questionable judgement, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places.

CONCLUSION

When the Applicant answered question 26 on his July 2002 SCA, he answered it based on his belief at that time and to the best of his ability. He simply misread the question asked. This being the case, I find no "deliberate omission, concealment, or falsification" here, as is required by the second disqualifying condition under Personal Conduct (emphasis supplied). The Applicant testified credibly; and as there was no wilful falsification, Guideline E is for the Applicant. Considering all the evidence, the Applicant has rebutted the Government's case regarding his alleged Personal Conduct. The Applicant has thus met the mitigating conditions of Guideline E, and of Section E.2.2. of the Directive. Accordingly, he has met his ultimate burden of persuasion under Guideline E.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: FOR THE APPLICANT a. For the Applicant. Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

02-33058.h1 FOR GOVERNMENT Jennifer I. Campbell, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-33058.h1.html[6/24/2021 3:05:52 PM] 02-33058.h1