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ISCR Case 16-03838 — CASE

ISCR Case 16-03838granted

Case Headnote

ISCR Case No. 16-03838

grantedAug 31, 2017· Hon. Edward W. Loughran· hearing

Summary

This case concerns a 44-year-old male applicant seeking eligibility for a Common Access Card (CAC), which was ultimately granted. The primary security concern fell under Guideline J (Criminal Conduct), specifically related to a history of driving while intoxicated (DWI).

The applicant had three arrests for alcohol-related offenses. In 2003, he was arrested for DWI and refusal to submit to a chemical test, pleading no contest to DWI in 2007. He received a sentence including one day in jail, $805 in fines and costs, one year of probation, and a DWI education class. An arrest in 2008 for criminal contempt was dismissed after he completed the terms of his 2003 DWI conviction. His third arrest occurred in January 2016 for DWI and refusal to submit to a chemical test, leading to a guilty plea for DWI in January 2017. This resulted in a sentence of one day in jail, $850 in fines and costs, one year of probation, and another DWI education class, which he completed in August 2016.

Despite these disqualifying conditions, the applicant demonstrated significant mitigation. He successfully completed all terms of his DWI sentences and probation. Furthermore, he showed credible remorse, a firm commitment to avoid future offenses, and provided evidence of successful rehabilitation and positive work performance. Based on these mitigating factors, the applicant's eligibility for a Common Access Card was granted.

Why the Applicant Prevailed

The applicant completed all terms of his DWI sentences and probation.
He demonstrated credible remorse and a commitment to never drink and drive again.
The applicant provided evidence of successful rehabilitation and positive work performance.

Conditions Referenced

Disqualifying

J2.araisedCriminal Conduct That Poses an Unacceptable Risk
J2.braisedCharges or Admission of Criminal Conduct

Mitigating

J2.c(1)appliedBehavior Happened Long Ago or Was Minor
J2.c(2)appliedCharges Were Dismissed or Evidence of Innocence
J2.c(3)appliedEvidence of Successful Rehabilitation

Key Rule Quoted

“A CAC will not be issued to a person if there is a reasonable basis to believe, based on the individual’s criminal or dishonest conduct, that issuance of a CAC poses an unacceptable risk.”
— DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2

Procedural Posture

SOR issuedMar 9, 2017
Answer filedMar 27, 2017
Hearing heldJun 28, 2017
Decision dateAug 31, 2017

Cite For

Successful Rehabilitation Under Guideline J
Credibility of Remorse in Mitigating Criminal Conduct
Impact of Time Elapsed Since Last Offense on CAC Eligibility

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: granted

The judge found in favor of the applicant regarding the criminal conduct allegations, determining that the applicant mitigated concerns related to criminal or dishonest conduct. The applicant's eligibility for a Common Access Card (CAC) was granted based on credible evidence of rehabilitation and the dismissal of certain charges.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested in 2003 and charged with driving while intoxicated (DWI), first offense, and refusal to submit to chemical test. Applicant’s attorney pleaded no contest on Applicant’s behalf to DWI, first offense, in 2007. The remaining charge was dismissed. Applicant was sentenced to one day in jail with credit for time served, $805 in fines and costs, probation for one year, and completion of a DWI education class.	For Applicant	DUI or DWI Criminal	Convicted	Denied	—	(c) no reliable evidence the individual committed the offense	—
1.b	Applicant was arrested in 2008 and charged with criminal contempt. He completed all the terms of his DWI conviction, and the criminal contempt charge was dismissed.	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Denied	—	(c) no reliable evidence the individual committed the offense	—
1.c	Applicant was arrested in January 2016 and charged with DWI and refusal to submit to chemical test. He pleaded guilty to DWI, first offense, in January 2017. He was sentenced to one day in jail with credit for time served, $850 in fines and costs, probation for one year, and completion of a DWI education class. Applicant completed the DWI education class in August 2016, before he pleaded guilty.	For Applicant	DUI or DWI Criminal	Convicted	Denied	—	(c) no reliable evidence the individual committed the offense	—

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: ) ) ) CAC Case No. 16-03838 ) Applicant for CAC Eligibility )

For Government: Bryan J. Olmos, Esq., Department Counsel For Applicant: Pro se

08/31/2017 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant mitigated Common Access Card (CAC) credentialing concerns raised under the criminal or dishonest conduct supplemental adjudicative standards. CAC eligibility is granted.

Statement of the Case

On March 9, 2017, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing credentialing concerns for CAC eligibility under Homeland Security Presidential Directive – 12 (HSPD-12). The DOD was unable to find that granting Applicant CAC eligibility did not pose an unacceptable risk. The action was taken under the adjudicative standards found in DOD Instruction (DODI) 5200.46, DOD Investigative and Adjudicative Guidance for Issuing the CAC, dated September 9, 2014, and the procedures set out in Enclosure 3 of DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). The concerns raised under the adjudicative standards of DODI 5200.46 are criminal or dishonest conduct.

Applicant responded to the SOR on March 27, 2017, and requested a hearing before an administrative judge. The case was assigned to me on May 10, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on May 16, 2017, scheduling the hearing for June 28, 2017. The hearing was convened as scheduled. Government Exhibits (GE) 1 through 5 were admitted in evidence without objection. Applicant testified, called a witness, and submitted Applicant’s Exhibits (AE) A through E, which were admitted without objection. DOHA received the hearing transcript (Tr.) on July 7, 2017.

FINDINGS OF FACT

Applicant is 44 years old. He has worked for his current employer, or a predecessor defense contractor, for more than four years. He attended college for about two years without earning a degree. He married in 1999 and divorced in 2003. He has a teenage child from the marriage.1

Applicant was arrested in 2003 and charged with driving while intoxicated (DWI), first offense, and refusal to submit to chemical test. Applicant’s attorney pleaded no contest on Applicant’s behalf to DWI, first offense, in 2007. The remaining charge was dismissed. Applicant was sentenced to one day in jail with credit for time served, $805 in fines and costs, probation for one year, and completion of a DWI education class.2

Applicant’s attorney did not inform him of all the terms of his probation. Applicant was arrested in 2008 and charged with criminal contempt. He completed all the terms of his DWI conviction, and the criminal contempt charge was dismissed.3

Applicant was arrested in January 2016 and charged with DWI and refusal to submit to chemical test. He pleaded guilty to DWI, first offense, in January 2017. He was sentenced to one day in jail with credit for time served, $850 in fines and costs, probation for one year, and completion of a DWI education class. Applicant completed the DWI education class in August 2016, before he pleaded guilty. In June 2017, the court clerk certified that Applicant completed all the terms of his sentence and probation, and he was no longer on probation.4

Applicant thought he was capable of driving when he was arrested in 2016. He stated that his blood alcohol concentration (BAC) was .07% and .08% on the two tests he took. He is appropriately remorseful for his actions. He credibly testified that he learned his lesson and he will never drink and drive again. He is aware that repeating the conduct could result in harming himself or others, going to jail, and losing his job.5 Applicant submitted letters attesting to his excellent job performance, work ethic, honesty, leadership, dedication, motivation, dependability, positive attitude, reliability, and integrity.6

POLICIES

Every CAC eligibility decision must be a fair and impartial overall commonsense decision based on all available evidence, both favorable and unfavorable. The specific issues raised are listed in DODI 5200.46, Enclosure 4, Appendix 1, Basic Adjudicative Standards, and Appendix 2, Supplemental Adjudicative Standards. The overriding factor for all of these conditions is unacceptable risk.

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 applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain CAC eligibility.

Factors to be applied consistently to all information available include: (1) the nature and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the recency and frequency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) contributing external conditions; and (6) the absence or presence of efforts towards rehabilitation. (DODI 5200.46, Enclosure 4, ¶ 1)

ANALYSIS

Criminal or Dishonest Conduct

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2 provides:

A CAC will not be issued to a person if there is a reasonable basis to believe, based on the individual’s criminal or dishonest conduct, that issuance of a CAC poses an unacceptable risk.

a. An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk. DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2.blists several conditions that could raise a CAC eligibility concern and may be disqualifying. The following are potentially applicable in this case:

(1) A single serious crime or multiple lesser offenses which put the safety of people at risk or threaten the protection of property or information. A person’s convictions for burglary may indicate that granting a CAC poses an unacceptable risk to the U.S. Government’s physical assets and to employees’ personal property on a U.S. Government facility; and

(2) Charges or admission of criminal conduct relating to the safety of people and proper protection of property or information systems, regardless of whether the person was formally charged, formally prosecuted, or convicted.

Applicant’s criminal history is sufficient to establish the above disqualifying conditions.

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2.clists circumstances relevant to the determination of whether there is a reasonable basis to believe there is an unacceptable risk. The following may be relevant:

(1) The behavior happened so long ago, was minor in nature, or happened under such unusual circumstances that it is unlikely to recur;

(2) Charges were dismissed or evidence was provided that the person did not commit the offense and details and reasons support his or her innocence; and

(4) Evidence has been supplied of successful rehabilitation, including but not limited to remorse or restitution, job training or higher education, good employment record, constructive community involvement, or passage of time without recurrence.

Applicant’s explanation for the criminal contempt charge is credible and accepted. The charge was dismissed. The mitigating circumstance in ¶ 2.c(2) is applicable to SOR ¶ 1.b.

Applicant is highly regarded at work. He is remorseful for his DWIs. He credibly testified that he learned his lesson and he will never drink and drive again. He is aware that repeating the conduct could result in harming himself or others, going to jail, and losing his job. I find evidence of successful rehabilitation and that criminal conduct is unlikely to recur. The mitigating circumstances in ¶¶ 2.c(1) and 2.c(3) are established. I also considered the factors in DODI 5200.46, Enclosure 4, ¶ 1.

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, Criminal or Dishonest Conduct: For Applicant

Subparagraphs 1.a-1.c: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, granting Applicant CAC eligibility does not pose an unacceptable risk. CAC eligibility is granted.

_______________________ Edward W. Loughran Administrative Judge

FOOTNOTES

1 Tr. at 15-16, 19, 39; GE 1. 2 Tr. at 21-26; Applicant’s response to SOR; GE 3, 5. 3 Tr. at 22-30; GE 5; AE A. 4 Tr. at 31-37; GE 3, 5; Applicant’s response to SOR; AE A, E. 5 Tr. at 14, 37-41. 6 AE C.