ISCR Case 06-17080.h1

Case Headnote

ISCR Case No. 06-17080.h1

grantedMar 27, 2007· Hon. Wilford H. Ross· hearing

Summary

A 33-year-old defense contractor with a Bachelor of Science degree was granted a security clearance despite allegations under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The allegations stemmed from criminal incidents in 1991 and 1996, and incorrect answers on government questionnaires.

Specifically, the Applicant was charged with Attempted Murder in 1991 after driving a shooter to a location where another gang member was shot. He cooperated with authorities, leading to the Attempted Murder charge being dropped, and he pleaded guilty to Disorderly Conduct. In 1996, he received a citation for Larceny of Private Property and Damage to Private Property for removing equipment from abandoned cars on a military base; these charges were dismissed after he completed a pre-trial diversion program. In 2000, he was acquitted by a jury of Assault with Intent to Kill and Assault and Battery with a Dangerous Weapon following a fight where he claimed self-defense.

The judge found that the Applicant's incorrect answers on government questionnaires were not made with intent to deceive. The Applicant demonstrated considerable mitigation, including his education and positive character references, and his acquittal in 2000 indicated a lack of criminal intent. Consequently, the security clearance was granted.

Why the Applicant Prevailed

The Applicant's incorrect answers on government questionnaires were not made with the intent to deceive.
The Applicant demonstrated considerable mitigation through education and positive character references.
The Applicant's acquittal in 2000 indicated a lack of criminal intent.

Conditions Referenced

Disqualifying

J31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
J31(c)raisedAllegations or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged, Formally Prosecuted or Convicted

Mitigating

J32(a)appliedSo 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
J32(c)appliedEvidence That the Person Did Not Commit the Offense
J32(d)appliedThere 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
E16(a)raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts From Any Personnel Security Questionnaire

Key Rule Quoted

“Any determination under this order...shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”
— Executive Order 10865

Procedural Posture

SOR issuedAug 16, 2006
Answer filedSep 27, 2006
Hearing heldFeb 15, 2007Hearing conducted with testimony and documentary evidence.
Decision dateMar 27, 2007

Cite For

Mitigation of Criminal Conduct Under Guideline J Due to Time Elapsed and Rehabilitation Efforts
Lack of Intent to Deceive in Security Clearance Applications
Consideration of Personal Background and Circumstances in Security Clearance Decisions

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

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	—	(a) prompt, good-faith correction before being confronted	Claimed Other
2.b	The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	—	(a) prompt, good-faith correction before being confronted	Claimed Other
2.c	The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	—	(a) prompt, good-faith correction before being confronted	Claimed Other

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.

For Applicant

Falsification Security FormNOT DELIBERATE

Criminal Conduct

Denied

—

(a) prompt, good-faith correction before being confronted

Claimed

Other

2.b

The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.

For Applicant

Falsification Security FormNOT DELIBERATE

Criminal Conduct

Denied

—

(a) prompt, good-faith correction before being confronted

Claimed

Other

2.c

The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.

For Applicant

Falsification Security FormNOT DELIBERATE

Criminal Conduct

Denied

—

(a) prompt, good-faith correction before being confronted

Claimed

Other

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The Applicant was involved in an incident where one of his fellow gang members shot another member. The Applicant had driven the shooter to the location where the other person was shot. He did not know that the shooter had a weapon until the incident took place. The Applicant was subsequently charged with Attempted Murder. According to the Applicant, the authorities knew that he was not the shooter but wanted the Applicant’s cooperation against the shooter. He did cooperate with the authorities. As a result of his cooperation, the Attempted Murder charge was dropped and he plead guilty to Disorderly Conduct, a misdemeanor.	For Applicant	Unspecified Criminal Conduct	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.b	On May 13, 1996, as a civilian, the Applicant received a citation from the Military Police at his former duty station. Along with several friends, the Applicant was involved in removing equipment from abandoned automobiles on the base. Although the car was abandoned, technically the act constituted theft. The report is somewhat unclear, but it appears that he was charged with Larceny of Private Property and Damage to Private Property. He completed a pre-trial diversion program, and on September 3, 1996, all charges were dismissed.	For Applicant	Theft or Larceny	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.c	In August 2000 the Applicant was involved in a fight with the person he was sharing a house with. The Applicant’s credible testimonial evidence is that the other person attacked him with a hammer and the Applicant, a former high school wrestler, defended himself aggressively. The end result was that the other person called the police and the Applicant was arrested as the aggressor. Specifically, the other person said that the Applicant had attacked him with a hammer. The Applicant was subsequently charged with Assault with Intent to Kill and Assault and Battery with a Dangerous Weapon. He was acquitted of both charges after a jury trial.	For Applicant	Assault or Battery	Acquitted or Found Not Guilty	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.d–2.c	4 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant		—		—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

The Applicant was involved in an incident where one of his fellow gang members shot another member. The Applicant had driven the shooter to the location where the other person was shot. He did not know that the shooter had a weapon until the incident took place. The Applicant was subsequently charged with Attempted Murder. According to the Applicant, the authorities knew that he was not the shooter but wanted the Applicant’s cooperation against the shooter. He did cooperate with the authorities. As a result of his cooperation, the Attempted Murder charge was dropped and he plead guilty to Disorderly Conduct, a misdemeanor.

For Applicant

Unspecified Criminal Conduct

Convicted

Admitted

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

(c) currently on parole or probation

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

—

1.b

On May 13, 1996, as a civilian, the Applicant received a citation from the Military Police at his former duty station. Along with several friends, the Applicant was involved in removing equipment from abandoned automobiles on the base. Although the car was abandoned, technically the act constituted theft. The report is somewhat unclear, but it appears that he was charged with Larceny of Private Property and Damage to Private Property. He completed a pre-trial diversion program, and on September 3, 1996, all charges were dismissed.

For Applicant

Theft or Larceny

Dismissed or Nolle Prossed

Admitted

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

(c) currently on parole or probation

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

—

1.c

In August 2000 the Applicant was involved in a fight with the person he was sharing a house with. The Applicant’s credible testimonial evidence is that the other person attacked him with a hammer and the Applicant, a former high school wrestler, defended himself aggressively. The end result was that the other person called the police and the Applicant was arrested as the aggressor. Specifically, the other person said that the Applicant had attacked him with a hammer. The Applicant was subsequently charged with Assault with Intent to Kill and Assault and Battery with a Dangerous Weapon. He was acquitted of both charges after a jury trial.

For Applicant

Assault or Battery

Acquitted or Found Not Guilty

Admitted

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

(c) currently on parole or probation

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

—

1.d–2.c

4 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)

For Applicant

—

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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

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES