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ISCR Case 16-02319.h1 — CASE

ISCR Case 16-02319.h1denied

Case Headnote

ISCR Case No. 16-02319.h1

deniedJun 1, 2017· Hon. Jennifer I. Goldstein· hearing

Summary

A 36-year-old former Air Force staff sergeant was denied a security clearance under Guideline J (Criminal Conduct) due to two instances of criminal behavior. The primary concern stemmed from a 2014 conviction for multiple offenses, including two counts of Tampering with Witness/Victim, Violation of Bail Bonds Conditions, Violation of Criminal Protection Order, and Telephone-Obstruct Service. These convictions resulted from an arrest in September 2013, where he was initially charged with several serious offenses, though he was acquitted of the most severe charges.

For the 2014 convictions, the applicant was sentenced to 59 days in jail and placed on four years of supervised probation, which he is currently serving. The Statement of Reasons highlighted these convictions, noting that no mitigating factors were found under the applicable adjudicative guidelines.

The denial was based on the applicant's ongoing supervised probation, which raised significant doubts about his judgment and reliability. The nature of his criminal conduct, involving serious and recent unresolved offenses, further undermined his trustworthiness. Ultimately, the applicant did not provide sufficient evidence of rehabilitation or other mitigating circumstances to alleviate the security concerns.

Why the Applicant Was Denied

The applicant was currently on supervised probation for his criminal convictions, which raised concerns about his judgment and reliability.
The applicant's criminal conduct included serious offenses that were recent and unresolved, casting doubt on his trustworthiness.
The applicant failed to provide sufficient evidence of rehabilitation or mitigating circumstances to alleviate security concerns.

Conditions Referenced

Disqualifying

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

Key Rule Quoted

“Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness.”
— AG ¶ 30

Procedural Posture

SOR issuedSep 30, 2016
Answer filedOct 23, 2016
Hearing heldFeb 10, 2017convened as scheduled
Decision dateJun 1, 2017

Cite For

Security Concerns Related to Criminal Conduct Under Guideline J
Impact of Ongoing Probation on Security Clearance Eligibility
The Importance of Demonstrating Rehabilitation in Criminal 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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on all allegations under Guideline J, citing concerns about the applicant's criminal conduct, which included multiple convictions and ongoing probation. The applicant's criminal history raised significant doubts about his trustworthiness and judgment, leading to the denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested on September 17, 2013 and charged with: (1) Sex Assault-Submit-Force/Threat/Other; (2) 2nd Degree Kidnapping-Seize/Carry Victim; (3) Sexual Contact-No Consent-Force/Threat; (4) Felony Menacing-Real/Simulated Weapon; (5) 3rd Degree Assault-Know/Reckless Cause Injury; (6) Telephone-Obstruct Service; and (7) Harassment-Strike/Shove/Kick. He was subsequently also charged with: two counts of Tampering with Witness/Victim; two counts of Attempting to Influence Public Servant; violation of Bail Bonds Conditions; and Violation of Criminal Protection Order. On October 3, 2014, Applicant was convicted of: Telephone-Obstruct Service; both counts of Tampering with Witness/Victim; Violation of Bail Bonds Conditions; and Violation of Criminal Protection Order. He was sentenced to 59 days in jail and placed on probation for four years. He is currently on supervised probation for these convictions.	Against Applicant	Multiple Arrests Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
1.b	Applicant was convicted of Telephone-Obstruct Service; both counts of Tampering with Witness/Victim; Violation of Bail Bonds Conditions; and Violation of Criminal Protection Order. Neither AG ¶¶ 32(b) nor 32(c) provide mitigation.	Against Applicant	Multiple Arrests Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—

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

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-02319 ) ) Applicant for Security Clearance )

For Government: Adrienne Driskill, Esq., Department Counsel For Applicant: Jim Green, Esq.

June 1, 2017 ______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Applicant was alleged to have engaged in two separate instances of criminal conduct, one in 2010 and one in 2013. He was convicted in 2014 for some of his 2013 conduct and is still on probation. His conduct raised unmitigated security concerns. Eligibility for access to classified information is denied.

Statement of the Case

On April 14, 2014, Applicant submitted a signed Electronic Questionnaires for Investigations Processing (e-QIP). On September 30, 2016, the Department of Defense issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline J, Criminal Conduct. The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective September 1, 2006. Applicant answered the SOR on October 23, 2016, (Answer), and requested a hearing before an administrative judge. The case was assigned to me on December 20, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December 20, 2016, scheduling the hearing for February 10, 2017. The hearing was convened as scheduled. The Government offered Exhibits (GE) 1 through 7, which were admitted without objection. Applicant testified, called one witness, and submitted nine exhibits (AE), marked AE A through AE I. Department Counsel had no objections to AE A through AE I, and they were admitted. The record then closed. DOHA received the transcript of the hearing (Tr.) on February 23, 2017.

FINDINGS OF FACT

Applicant is 36 years old. He served in the Air Force from 2002 to 2006. He served in the Air National Guard from 2006 to 2013. He achieved the rank of staff sergeant. He has held a security clearance since 2004. He has worked for his current employer, a government contractor, since August 2010. He was married in 2004 and divorced in 2015. He has one minor son and a minor step-daughter. (GE 1; AE G; Tr. 15-23, 42, 46-47, 55.)

Criminal Conduct

The SOR alleges Applicant engaged in two separate instances of criminal conduct. Applicant admitted to both of the criminal allegations contained in the SOR. They are as follows:

Applicant was arrested on September 17, 2013 and charged with: (1) Sex Assault-Submit-Force/Threat/Other; (2) 2nd Degree Kidnapping-Seize/Carry Victim; (3) Sexual Contact-No Consent-Force/Threat; (4) Felony Menacing-Real/Simulated Weapon; (5) 3rd Degree Assault-Know/Reckless Cause Injury; (6) Telephone-Obstruct Service; and (7) Harassment-Strike/Shove/Kick. He was subsequently also charged with: two counts of Tampering with Witness/Victim; two counts of Attempting to Influence Public Servant; violation of Bail Bonds Conditions; and Violation of Criminal Protection Order. On October 3, 2014, Applicant was convicted of: Telephone-Obstruct Service; both counts of Tampering with Witness/Victim; Violation of Bail Bonds Conditions; and Violation of Criminal Protection Order. He was sentenced to 59 days in jail and placed on probation for four years. He is currently on supervised probation for these convictions. He meets with a parole officer once per month and is subject to house inspections. (GE 3; GE 5; Tr. 29-55.)

Applicant explained that he was acquitted of (1) Sex Assault-Submit- Force/Threat/Other; (2) 2nd Degree Kidnapping-Seize/Carry Victim; (3) Sexual Contact- No Consent-Force/Threat; (4) Felony Menacing-Real/Simulated Weapon; (5) 3rd Degree Assault-Know/Reckless Cause Injury; (6) Telephone-Obstruct Service; and (7) Harassment-Strike/Shove/Kick during a trial before a jury. Applicant testified that he was arrested after a normal evening spent with his family. He and his wife were consensually intimate. However, during their encounter an argument broke out between Applicant and his wife, because she was cheating on him. His wife was allegedly drunk and was yelling at the time of the incident. She has a history of previous arrests for assaulting Applicant. (GE 6; GE 7.) His step-daughter and his brother-in-law pounded at the door of the bedroom and Applicant opened the door. He then left the residence, but returned the next morning to get his cell phone. When he returned, he was arrested for the allegations, which his wife allegedly made up. (Tr. 36-39.) During their testimony at trial, Applicant’s wife and step-daughter recanted their initial statements to the police that led to the above charges. (Tr. 29-52.)

As stated, despite Applicant’s acquittal on the above charges, he was convicted of Telephone-Obstruct Service; both counts of Tampering with Witness/Victim; Violation of Bail Bonds Conditions; and Violation of Criminal Protection Order, as a result of his talking to his mother-in-law and asking her to convince his wife to tell “the truth,” so that the charges against him would be reduced. (Tr. 39-40.) Applicant testified that he has appealed his conviction and expects to prevail on appeal. (AE I; Tr. 40-41.)

In July 2010, Applicant was the subject of a joint investigation in which he was alleged to have committed sexual assault against a minor child. The minor child he was accused of molesting was his 13-year-old step-daughter. Applicant claimed that his step-daughter made these accusations because she did not want to move as a result of his job in a new location. He claimed that the charges were dropped after his step- daughter admitted to making a false statement to the police. (Tr. 24-29.) The Sheriff’s Office investigating this incident included a summary of a recorded phone conversation between the Victim and Applicant. It reported:

[Victim] called [Applicant] who answered the phone[.] [Victim] explained to [Applicant] that she needed to speak with him and advised she did not feel comfortable coming home anymore because of what was happening. [Victim] began to describe the incident that occurred in her bedroom while watching [a movie]. [Applicant] stopped [Victim] and asked where she was at. [Applicant] explains that [Victim] needs to come home so they can talk about it. . . . [Victim] talks with [Applicant] about another incident where [Applicant] cuddled with her and asked [Victim] to take off her pants. As [Victim] described the incident [Applicant] replied, “OK.” [Victim] then explains to [Applicant] that he [Applicant] then took his clothes off. [Applicant] replied, “No I had my underwear on.” . . . [Victim] also explained to [Applicant] that he gets “hard” sometimes when they cuddle. [Applicant] explained that he did not know what to tell [Victim] about that. (GE 4.)

After the investigation, Appellant learned that Victim recanted what she said. (Tr. 48.) As a result, no charges were filed. However, his criminal conduct outlined above during the recorded call, raises concerns about his judgment.

Applicant’s girlfriend of three years testified that Applicant is “calm, loving, [and] attentive.” She reported that they do not fight and have no arguments. (Tr. 57-61.) Applicant presented copies of medals, certificates, letters of appreciation, and performance reports which praise his outstanding achievements in the Air Force and the workplace. (AE A; AE C; AE D; AE E; AE G.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be 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, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing 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, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable clearance 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 the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse 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 J, Criminal Conduct

The security concern relating to the guideline for Criminal Conduct is set out in AG ¶ 30:

Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules and regulations.

AG ¶ 31 describes conditions that could raise a security concern and may be disqualifying. The following are potentially applicable:

(a) a single serious crime or multiple lesser offenses;

(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; and

(d) the individual is currently on parole or probation.

Applicant was alleged to have engaged in two separate instances of criminal conduct, including serious crimes and lesser offenses. His interactions with his step- daughter caused a criminal investigation and showed poor judgment, despite the fact that he was not formally charged for that conduct. He was convicted of Telephone- Obstruct Service; both counts of Tampering with Witness/Victim; Violation of Bail Bonds Conditions; and Violation of Criminal Protection Order. He was sentenced to 59 days in jail and placed on probation for four years. He is currently on supervised probation for these convictions. These offenses give rise to concerns about Applicant’s judgment and reliability, both because of the nature of the offenses and the quantity of criminal offenses. The aforementioned disqualifying conditions have been established.

Four Criminal Conduct mitigating conditions under AG ¶ 32 are potentially applicable:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person’s life;

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.

Applicant’s criminal past continues to cast doubt on his trustworthiness and judgment. His offenses are recent, and he is currently on supervised probation. AG ¶ 32(a) does not provide full mitigation.

Applicant failed to present evidence to show that he was pressured into criminal acts. While he is now divorced from his wife and no longer has contact with her, he was not pressured into asking her to alter her police statement. He admitted each of the allegations. He was convicted of Telephone-Obstruct Service; both counts of Tampering with Witness/Victim; Violation of Bail Bonds Conditions; and Violation of Criminal Protection Order. Neither AG ¶¶ 32(b) nor 32(c) provide mitigation.

Applicant failed to introduce sufficient evidence of rehabilitation. While he introduced evidence of outstanding work performance during his military service and his civilian career, not enough time has passed since his conviction, given that he is currently on supervised probation under the watchful eye of the court. AG ¶ 32(d) does not provide full mitigation.

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 the 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.

I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guideline J in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment. Applicant’s criminal behavior continues to lead to questions about his trustworthiness and reliability. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the Criminal Conduct security concerns.

FORMAL FINDINGS

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

Paragraph 1, Guideline J: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Jennifer I. Goldstein Administrative Judge