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ISCR 16-02884.h1: Guideline D security clearance hearing, denied (2017) · CASE

ISCR Case 16-02884.h1denied

Case headnote

ISCR Case No. 16-02884.h1

deniedOct 19, 2017· Hon. Robert E. Coacher· hearing

Summary

A 43-year-old former Air Force lieutenant colonel was denied a security clearance under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The denial stemmed from a 2014 General Court-Martial conviction for rape, which was cited in the Statement of Reasons as both criminal conduct and sexual behavior.

The judge determined that the rape conviction raised significant security concerns regarding the applicant's reliability and trustworthiness. Despite the applicant presenting evidence of potential rehabilitation, the judge found this insufficient to mitigate the concerns.

Ultimately, the denial was based on the applicant's conviction for rape, his failure to accept responsibility for his past criminal actions, and the judge's finding that his past behavior cast doubt on his current reliability and trustworthiness. The security clearance was therefore denied.

Why the applicant was denied

Applicant was convicted of rape by General Court-Martial, which raises significant security concerns.
Applicant failed to accept responsibility for his past criminal actions, undermining claims of rehabilitation.
The judge found that the applicant's past criminal behavior casts doubt on his current reliability and trustworthiness.

Conditions referenced

Disqualifying

J.1.araisedCriminal Conduct
D.1.araisedSexual Behavior of a Criminal Nature

Key rule quoted

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

Procedural posture

SOR issuedOct 3, 2016
Answer filedNov 2, 2016
Hearing heldApr 12, 2017
Decision dateOct 19, 2017

Cite for

Denial of Security Clearance Due to Criminal Conduct Under Guideline J
Impact of a Criminal Conviction on Security Clearance Eligibility
Insufficient Evidence of Rehabilitation in the Context of Serious Criminal Behavior

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 43: “Applicant is 43 years old.”
Tenure: ~2 years: “He has worked for a defense contractor since June 2015.”

Standardized Decision Profile

SEAD-4 Guideline D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant was denied a security clearance due to a conviction for rape, which raised significant concerns under Guideline D regarding sexual behavior. The judge found that the applicant's past criminal behavior undermined his reliability and trustworthiness, leading to a formal ruling against him on the allegations related to sexual behavior.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The applicant was denied eligibility for a security clearance due to a conviction for rape, which raised significant concerns under Guideline J regarding criminal conduct. The judge found that the applicant failed to mitigate these concerns, leading to a formal ruling against the applicant.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 16-02884 ) Applicant for Security Clearance )

For Government: Mary Margaret Foreman, Esq., Department Counsel For Applicant: Terri R. Zimmermann, Esq.

10/19/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant failed to mitigate the Government’s security concerns under Guideline J, criminal conduct and Guideline D, sexual behavior. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On October 3, 2016, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline J, criminal conduct and Guideline D, sexual behavior. The DOD acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. 1 Applicant answered the SOR on November 2, 2016, and requested a hearing. The case was assigned to me on January 27, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on March 15, 2017, and the hearing was held as scheduled on April 12, 2017. The Government offered exhibits (GE) 1 through 5, which were admitted into evidence without objection. The Government’s Exhibit list was marked as hearing exhibit (HE) II. Applicant testified and offered exhibits (AE) A through D, which were admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on April 19, 2017.

Motion in Limine--Evidentiary Ruling

On April 4, 2017, Department Counsel submitted a written motion in limine to preclude admission of Applicant’s evidence that intended to controvert Applicant’s 2014 General Court-Martial conviction for rape. I granted the motion prohibiting Applicant from re-litigating his court-martial conviction. I allowed admission of evidence related to Applicant’s character during his Air Force career and thereafter. I specifically denied admission of evidence that attacked the veracity of the victim of Applicant’s rape conviction.2

FINDINGS OF FACT

In Applicant’s Answer, he admitted all the allegations in the SOR, with explanations. The admissions are adopted as findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact.

Applicant is 43 years old. He is divorced and has two children. He has worked for a defense contractor since June 2015. He served on active duty in the Air Force from 1996 until his court-martial in August 2014. He is currently in appellate leave status pending the final appellate review of his General Court-Martial conviction in 2014. During his military career, he deployed to Afghanistan and Iraq. He has two master’s degrees.3

The SOR alleges Applicant was convicted of rape (criminal conduct) in August 2014 by General Court-Martial (SOR ¶ 1.a). This conduct was cross alleged as sexual behavior under Guideline D in the SOR. (SOR ¶ 2.a)

Sometime between July 2013 and August 2014, Applicant, who was at the time an active duty lieutenant colonel pilot in the Air Force, was charged with rape in violation of Article 120 of the Uniform Code of Military Justice (UCMJ). The charges stemmed from an incident that occurred in 2005. The victim alleged Applicant raped her when both were together on a temporary duty assignment. The victim (an enlisted subordinate of Applicant at the time of the incident) had recently come forward about the incident while undergoing sexual assault and awareness training. Applicant was tried on the rape charge by a General Court-Martial in August 2014. Applicant was represented by civilian and military counsel at the court-martial, waived his right to be tried by a panel of military officers, choosing instead to be tried by a military judge, pleaded not guilty, and testified at trial. He denied raping the victim claiming the sex was consensual (he admitted committing the UCMJ offenses of adultery and fraternization). The victim testified for the Government. After hearing all the evidence presented, the military judge convicted Applicant of the rape charge. He was sentenced to a dismissal, confinement for five months and a reprimand. The convening authority (an Air Force Lieutenant General) approved the findings of guilt and the sentence in November 2014.4

Applicant’s case was automatically appealed to the Air Force Court of Criminal Appeals (AFCCA), which issued an unpublished opinion in June 2016. The opinion concluded that “the approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the Appellant occurred.” The AFCCA affirmed the findings and sentence approved by the convening authority. On October 16, 2016, Applicant’s petition to the United States Court of Appeals for the Armed Forces (CAAF) for review was granted solely on the procedural issue of whether the AFCCA panel that heard Applicant’s case was properly constituted. On December 1, 2016, CAAF denied Applicant’s petition for review on any other issues.5

At the hearing, Applicant claimed his innocence to the rape charge. He admitted engaging in adultery and fraternization. He also admitted committing adultery on other occasions after 2005, while in the Air Force. When he raped the victim in 2005, his wife was pregnant. He and his wife divorced in October 2015.6

Applicant was evaluated by a clinical psychologist who prepared a report in August 2014, which was submitted to the military judge during the sentencing portion of Applicant’s court-martial. Applicant also submitted the same report as part of his Answer in this case. Applicant was given a series of tests and his behavior was observed over the course of five days. The psychologist concluded that Applicant “has a variety of positive factors suggesting exceptional rehabilitation potential as well as excellent prognosis for avoiding further sexual offenses.”7

Applicant presented four reference letters from colleagues and his priest. Two of the colleagues refer to his rape conviction as a one-time mistake. They described his skills as a pilot and potential simulator instructor. They believe he is loyal and a good leader. They feel Applicant has learned from his mistake and will not find himself in that position in the future. They recommend granting him a security clearance. His priest described Applicant’s volunteer activities within the church and believes he is a quality person deserving of a security clearance.8

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(a), the entire process is a careful weighing 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 national security eligibility will be resolved in favor of the 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, and has the ultimate burden of persuasion to obtain 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 that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Section 7 of EO 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 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 in this case. The following are potentially applicable:

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; and

(e) discharge or dismissal from the Armed Forces for reasons less than "Honorable."

Applicant was convicted of rape by General Court-Martial and was sentenced to a dismissal from the Air Force. I find that both disqualifying conditions apply.

I have also considered all of the mitigating conditions for criminal conduct under AG ¶ 32 and considered the following relevant:

(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; and

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. Applicant’s act of rape occurred in 2005, but because of his silence and the victim’s hesitation to come forward it was not prosecuted until 2014. He claims to be rehabilitated, but despite his conviction and appellate review, he has not admitted his wrongdoing. It is difficult to determine that rehabilitation has occurred when a person refuses to accept responsibility for their past criminal actions. Although applicant has made some rehabilitative strides since being released from prison, such as obtaining employment and working with his church, his past criminal behavior casts doubt on his current reliability, trustworthiness, and good judgment. AG ¶¶ 32(a) and 32(d) do not fully apply.

Guideline D, Sexual Behavior

The security concern relating to the guideline for sexual behavior is set out in AG ¶ 12:

Sexual behavior that involves a criminal offense; reflects a lack of judgment or discretion; or may subject the individual to undue influence of coercion, exploitation, or duress. These issues, together or individually, may raise questions about an individual's judgment, reliability, trustworthiness, and ability to protect classified or sensitive information. Sexual behavior includes conduct occurring in person or via audio, visual, electronic, or written transmission. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.

AG ¶ 13 describes conditions that could raise a security concern and may be disqualifying in this case. The following is potentially applicable:

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted.

Applicant was convicted of rape by a General Court-Martial. The above disqualifying condition applies.

I have also considered all of the mitigating conditions for sexual behavior under AG ¶ 14 and considered the following potentially relevant:

(b) the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or judgment; and

(e) the individual has successfully completed an appropriate program of treatment, or is currently enrolled in one, has demonstrated ongoing and consistent compliance with the treatment plan, and/or has received a favorable prognosis from a qualified mental health professional indicating the behavior is readily controllable with treatment.

AG ¶ 14(b) does not fully apply as explained above under the criminal conduct guideline. Although Applicant was seen by a psychologist before his court-martial, there is no evidence in the record to show that he started and completed a treatment plan during his confinement or after his release, or that he is currently enrolled in any such program. AG ¶ 14(e) does not apply.

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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(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 the facts and circumstances surrounding this case. I considered Applicant’s military service, his letters of recommendation, his psychological report, and his personal circumstances. However, I also considered that he was convicted of raping an Air Force enlisted subordinate. Applicant failed to provide sufficient evidence to mitigate the criminal conduct security concerns.

Overall the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns under Guidelines J and D.

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 APPLICANT

Subparagraph 1.a: Against Applicant

Paragraph 2, Guideline D: AGAINST APPLICANT

Subparagraph 2.a: 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.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Tr. 9-22; HE I (Department Counsel’s written motion in limine, including enclosures 1-4), HE III through VI (Applicant’s appeal briefs and related documents submitted to the United States Air Force Court of Criminal Appeals (AFCCA) and to the United States Court of Appeals for the Armed Forces (CAAF).

3 Tr. 38-41, 49; GE 1, 3. 4 GE 2-3.

5 HE I (encls. 1-4), HE III-IV.

6 Tr. 54-55, 57-58.

7 Answer. 8 AE A-C; Consistent with my ruling on the motion in limine, I also considered the enclosures to Applicant’s November 14, 2014 clemency request that were attached to his Answer.