ISCR Case 06-15545.h1

Case Headnote

ISCR Case No. 06-15545.h1

deniedJul 19, 2007· Hon. Christopher Graham· hearing

Summary

A 36-year-old facilities analyst for a defense contractor was denied a security clearance based on concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The applicant had a history of alcohol abuse, including a DUI in 1994 and nonjudicial punishment for drunk driving in May 1994. He was also charged with shoplifting in March 1997 and theft in October 1997, though the latter charge was dropped.

In May 2002, the applicant was charged with aggravated sexual battery of his 12-year-old step-daughter, to which he pleaded guilty to sexual battery. He received a 12-month suspended jail sentence, conditioned on good behavior, a polygraph, substance abuse evaluation, and family counseling. Since July 2002, he has been alcohol-free, completed alcohol and family counseling, and restored trust with his wife and step-daughter. He successfully mitigated security concerns related to criminal conduct, sexual behavior, and alcohol consumption.

However, the applicant failed to mitigate concerns regarding personal conduct due to intentional falsifications on his security clearance application and during investigations. Despite positive changes in other areas, the unmitigated personal conduct concerns led to the denial of his security clearance.

Why the Applicant Prevailed

Successfully mitigated security concerns regarding criminal conduct due to the passage of time and completion of court requirements.
Demonstrated rehabilitation by being alcohol-free for five years and restoring family trust.

Conditions Referenced

Disqualifying

E2.A5.1.2.2appliedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts
E2.A5.1.2.3appliedDeliberately Providing False or Misleading Information
E2.A4.1.2.1appliedSexual Behavior of a Criminal Nature
E2.A7.1.2.1raisedAlcohol-related Incidents Away From Work

Mitigating

E2.A10.1.3.1appliedThe Criminal Behavior Was Not Recent
E2.A10.1.3.6appliedThere Is Clear Evidence of Successful Rehabilitation
E2.A4.1.3.2appliedThe Behavior Was Not Recent and There Is No Evidence of Subsequent Conduct of a Similar Nature
E2.A4.1.3.4appliedThe Behavior No Longer Serves as a Basis for Coercion, Exploitation, or Duress

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedAug 30, 2006
Answer filedSep 25, 2006
Hearing heldMar 28, 2007and April 4, 2007
Decision dateJul 19, 2007

Cite For

Mitigation of Criminal Conduct Under Guideline J Due to Rehabilitation
Impact of Personal Conduct on Security Clearance Eligibility
Consideration of Sexual Behavior in Security Clearance Determinations

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

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
3.a	In May 2002, Applicant was charged with aggravated sexual battery of his 12-year-old step-daughter. He entered a guilty plea to sexual battery.	Against Applicant	Criminal Sexual Conduct	Admitted	—	—	—
3.b	He was sentenced to 12 months in jail, suspended for two years conditioned on good behavior, and required to undergo a polygraph examination, participate in a substance abuse evaluation, and attend family counseling.	Against Applicant	Criminal Sexual Conduct	Admitted	—	—	—

Allegation

Finding

Type

Response

Disqualifying (¶13)

Mitigating applied (¶14)

Mitigation

3.a

In May 2002, Applicant was charged with aggravated sexual battery of his 12-year-old step-daughter. He entered a guilty plea to sexual battery.

Against Applicant

Criminal Sexual Conduct

Admitted

—

3.b

He was sentenced to 12 months in jail, suspended for two years conditioned on good behavior, and required to undergo a polygraph examination, participate in a substance abuse evaluation, and attend family counseling.

Against Applicant

Criminal Sexual Conduct

Admitted

—

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a–2.j	10 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant	FOUND DELIBERATE	Criminal Conduct		—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a–2.j

10 sub-charges — specific text not stated in this decision (against the applicant).

Against Applicant

FOUND DELIBERATE

Criminal Conduct

—

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
4.a	The applicant has a history of alcohol-related incidents, including a DUI in 1994.	For Applicant	DUI or DWI Alcohol	Admitted	—	—	—
4.b	The applicant has been alcohol-free since July 2002.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
4.c	The applicant successfully completed treatment for alcohol dependency.	For Applicant	Treatment Non Compliance	Admitted	—	—	—
4.d	The applicant has received a favorable prognosis from a qualified professional.	For Applicant	Alcohol Use Disorder Diagnosed	Admitted	—	—	—
4.e	The applicant has attended Alcoholics Anonymous meetings regularly since treatment.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

4.a

The applicant has a history of alcohol-related incidents, including a DUI in 1994.

For Applicant

DUI or DWI Alcohol

Admitted

—

4.b

The applicant has been alcohol-free since July 2002.

For Applicant

Unspecified Alcohol Incident

Admitted

—

4.c

The applicant successfully completed treatment for alcohol dependency.

For Applicant

Treatment Non Compliance

Admitted

—

4.d

The applicant has received a favorable prognosis from a qualified professional.

For Applicant

Alcohol Use Disorder Diagnosed

Admitted

—

4.e

The applicant has attended Alcoholics Anonymous meetings regularly since treatment.

For Applicant

Unspecified Alcohol Incident

Admitted

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant abused alcohol, committed a sexual battery against his 12-year-old step-daughter, and gave false answers to investigators on a security clearance application.	For Applicant	Sexual Offense Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.b	Applicant received nonjudicial punishment in May 1994, under Article 15 of the Uniform Code of Military Justice for the offense of drunk driving.	For Applicant	DUI or DWI Criminal	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.c	Applicant was charged with shoplifting on March 27, 1997.	For Applicant	Theft or Larceny	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.d	Applicant was charged with theft under $300 on October 27, 1997. The charge was nolle prosequi.	For Applicant	Theft or Larceny	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.e	Applicant was arrested on May 19, 2002, and charged with aggravated sexual battery. He entered a plea to sexual battery, was sentenced to 12 months in jail, suspended for two years conditioned on good behavior, taking a polygraph examination, undergoing a substance abuse evaluation, and participation in family counseling.	For Applicant	Sexual Offense Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant abused alcohol, committed a sexual battery against his 12-year-old step-daughter, and gave false answers to investigators on a security clearance application.

For Applicant

Sexual Offense Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.b

Applicant received nonjudicial punishment in May 1994, under Article 15 of the Uniform Code of Military Justice for the offense of drunk driving.

For Applicant

DUI or DWI Criminal

Conduct No Charge

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.c

Applicant was charged with shoplifting on March 27, 1997.

For Applicant

Theft or Larceny

Charged Not Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.d

Applicant was charged with theft under $300 on October 27, 1997. The charge was nolle prosequi.

For Applicant

Theft or Larceny

Dismissed or Nolle Prossed

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.e

Applicant was arrested on May 19, 2002, and charged with aggravated sexual battery. He entered a plea to sexual battery, was sentenced to 12 months in jail, suspended for two years conditioned on good behavior, taking a polygraph examination, undergoing a substance abuse evaluation, and participation in family counseling.

For Applicant

Sexual Offense Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

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Case Profile

Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

SYNOPSIS

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

WHOLE PERSON ANALYSIS

FORMAL FINDINGS

DECISION

FOOTNOTES

APPEARANCES