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ISCR Case 06-26061 — CASE

ISCR Case 06-26061denied

Case Headnote

ISCR Case No. 06-26061

deniedDec 5, 2007· Hon. Joseph Testan· hearing

Summary

A 51-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a recent alcohol-related conviction and the intentional falsification of his Security Clearance Application (SCA).

Specifically, the applicant was charged with Driving Under the Influence (DUI) and subsequently failed to disclose these 2006 alcohol-related charges on his SCA. This omission was identified as an intentional falsification of material facts, raising concerns about his trustworthiness and reliability.

The judge found no mitigating evidence to support the applicant's case, emphasizing the seriousness of the actions and their implications for national security interests. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant had a recent alcohol-related conviction for driving under the influence and failed to disclose this on his SCA.
The applicant intentionally falsified material facts on the SCA, undermining his trustworthiness and reliability.

Conditions Referenced

Disqualifying

J1raisedCriminal ConductThe applicant was charged with a serious crime related to alcohol.
J2raisedAlcohol-related OffensesThe applicant was convicted of driving with a blood alcohol level above the legal limit.
E2raisedFalsification of InformationThe applicant intentionally omitted relevant charges on the SCA.

Key Rule Quoted

“The Government relies heavily on the honesty and integrity of individuals seeking access to our nation’s secrets.”

Procedural Posture

SOR issuedJun 6, 2007
Answer filedJun 29, 2007Applicant elected to have the case determined on a written record.
Hearing held—No hearing was held; decision made on written record.
Decision dateDec 5, 2007

Cite For

Disqualifying Conditions Related to Criminal Conduct Under Guideline J
Disqualifying Conditions for Falsification of Information Under Guideline E
Lack of Mitigating Evidence Leading to Denial of Clearance

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant failed to disclose his 2006 alcohol-related charges on the Security Clearance Application (SCA). This omission was deemed intentional, leading to a ruling against the applicant under Guideline E. The decision concluded that granting or continuing a security clearance was not consistent with the national interest.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2	Applicant failed to disclose his 2006 alcohol-related charges on the SCA.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found against the applicant on allegations of criminal conduct, specifically a Driving Under the Influence charge and falsification of a Security Clearance Application. The applicant was convicted of DUI, fined, and placed on probation, with no mitigating conditions applicable to his case.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was charged with Driving Under the Influence and falsified a Security Clearance Application.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	Applicant was charged with Driving Under the Influence and falsified a Security Clearance Application.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.c	Applicant was charged with Driving Under the Influence and falsified a Security Clearance Application.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

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: December 5, 2007 In Re: -------------------- SSN: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-26061 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN APPEARANCES FOR GOVERNMENT Melvin A. Howry, Department Counsel FOR APPLICANT Pro Se SYNOPSIS In the absence of any evidence in mitigation, applicant’s recent alcohol-related conviction and falsification of a Security Clearance Application (SCA) preclude a finding that it is clearly consistent with the national interest to grant him access to classified information. Clearance is denied.

STATEMENT OF CASE

On June 6, 2007, 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 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 clearance should be denied or revoked. Applicant responded to the SOR in writing on June 29, 2007, and elected to have his case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's written case (FORM) on or about August 8, 2007. Applicant did not file a response to the FORM. The case was assigned to me on November 9, 2007. RULING ON PROCEDURE Department Counsel’s Motion to amend the SOR, by changing the date on which applicant allegedly executed a falsified SCA, is granted.

FINDINGS OF FACT

Applicant is a 51 year old employee of a defense contractor. On January 8, 2006, applicant was arrested and charged with (1) Driving Under the Influence of Alcohol and/or Drugs and (2) Driving While Having a Measurable Blood Alcohol of .08% or More by Weight. In April 2006, he pleaded guilty to the second charge and was fined $2,050.00, placed on probation for five years, and ordered to complete a first conviction program. Applicant falsified material facts on an SCA he executed on January 27, 2006 by failing to disclose the aforementioned charges in response to Question 23(D). Although applicant responded in the affirmative to Question 23(D), which appeared on the SCA as “23D - ALCOHOL/DRUG CHARGE?” in explanation, he disclosed only a 1990 DUI conviction. In his response to the SOR, applicant stated he “thought the question was for a conviction.” He further stated he did not intend to mislead or falsify the SCA.

CONCLUSION

With respect to Guideline J, the evidence establishes that in 2006, applicant was charged with, and convicted of, driving with an alcohol level higher than the legal limit. As a result of the conviction, he was fined, placed on probation for five years, and ordered to complete a first conviction program. The SCA indicates he has at least one prior DUI. These facts require application There is no evidence that applicant paid the fine or completed the first conviction program. of Disqualifying Conditions 31(a) (a single serious crime or multiple lesser offenses) and 31 (d) (individual is currently on probation). Although two alcohol-related driving incidents over 15 years apart establishes a prima facie case under Guideline J, it is not a very strong case. Applicant may very well have been able to overcome the Government’s prima facie case had he offered credible evidence in mitigation. However, applicant offered no evidence in mitigation, and without such evidence, there is no basis upon which to conclude he has overcome the Government’s security concerns under Guideline J.1 With respect to Guideline E, the evidence establishes that applicant failed to disclose his 2006 alcohol-related charges when he completed the SCA just a few weeks after his arrest. Applicant claims he misunderstood the question, even though the word “charge” is prominently displayed and the word “conviction” is nowhere to be found. Applicant is a mature, experienced, and intelligent individual, as evidenced by the fact he teaches at a community college. He is simply too intelligent to have misunderstood the question. The Government relies heavily on the honesty and integrity of individuals seeking access to our nation’s secrets. When such an individual intentionally falsifies material facts on an SCA, it is extremely difficult to conclude that he or she nevertheless possesses the good judgment, reliability and trustworthiness required of clearance holders. Applicant’s intentional falsification requires application of Disqualifying Condition 16(a) (deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire . . .). No Mitigating Conditions apply. Based on the foregoing, Guideline E is found against applicant.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT PARAGRAPH 2: 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. ____________________________ Joseph Testan Administrative Judge