ISCR Case 06-17335.h1

Case Headnote

ISCR Case No. 06-17335.h1

deniedMar 15, 2007· Hon. Barry M. Sax· hearing

Summary

A 49-year-old software engineer was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to a history of criminal offenses and falsification on his security clearance application.

The applicant had three arrests in State A. In June 1994, he was arrested for being "Under the Influence of a Controlled Substance"; the charge was dismissed after he completed a diversion program. In September 1994, he was arrested and charged with spousal injury and battery; these proceedings were also suspended for one year, and he completed diversion and volunteer service. In July 2004, he was arrested for Possession of a Controlled Narcotic Substance (Cocaine/Base Rock) after being observed buying rock cocaine. This charge was dismissed in February 2005 after he completed a six-month drug diversion program, substance abuse classes, and random drug testing, and paid a $500 fee.

Crucially, the applicant knowingly omitted his 1994 drug-related arrest from his July 2003 security clearance application (SF 86), which he resigned in July 2004, answering "No" to a question about alcohol or drug offenses. This omission was deemed a falsification of material facts and a violation of 18 U.S.C. 1001. The judge found that the applicant failed to establish adequate mitigation for his conduct, leading to the denial of his clearance.

Why the Applicant Was Denied

The applicant committed multiple criminal offenses, including drug-related charges and spousal abuse.
The applicant knowingly omitted a drug-related arrest from his security clearance application, constituting a felony under 10 U.S.C. 1001.
The applicant failed to provide adequate evidence of rehabilitation or mitigation for his criminal conduct.

Conditions Referenced

Disqualifying

J1raisedAny Criminal Activity, Regardless of Whether the Individual Was Actually Charged.
J2raisedA Single Serious Crime or Multiple Lesser Offenses.
E2raisedThe Deliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire.

Key Rule Quoted

“It is basic to the security clearance adjudication process that the ultimate burden of proof is on the Applicant to demonstrate that he is eligible to possess a security clearance, as he did in the past.”

Procedural Posture

SOR issuedAug 31, 2006
Answer filedNov 2, 2006
Hearing heldFeb 16, 2007via MS Teams
Decision dateMar 15, 2007

Cite For

Denial Based on Multiple Criminal Offenses Under Guideline J
Falsification of Security Clearance Application Under Guideline E
Failure to Establish Adequate Mitigation for Criminal Conduct

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	Applicant falsified material facts on his security clearance application (SF 86), dated July 30, 2003, and resigned by him on July 2, 2004, his response to the following question: "24. Your Police Record - Alcohol/Drug Offenses For this item, report information regardless of whether the record in your case has been ‘sealed’ or otherwise stricken from the court record. [The only exception is not applicable under the facts of this case]. Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs," to which he answered "No," and intentionally failed to disclose his 1994 drug use, as alleged in 1.a., above.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(b) deliberately providing false information to an investigator or official	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant falsified material facts on his security clearance application (SF 86), dated July 30, 2003, and resigned by him on July 2, 2004, his response to the following question: "24. Your Police Record - Alcohol/Drug Offenses For this item, report information regardless of whether the record in your case has been ‘sealed’ or otherwise stricken from the court record. [The only exception is not applicable under the facts of this case]. Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs," to which he answered "No," and intentionally failed to disclose his 1994 drug use, as alleged in 1.a., above.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Criminal Conduct

Denied

(b) deliberately providing false information to an investigator or official

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested on or about June 2, 1994, in State A, and charged with being “Under the Influence of a Controlled Substance.” His criminal proceedings were suspended for one year and he was granted diversion. When he had successfully completed the diversion program, the charge against him was dismissed. Applicant explains the problem as arising during a “particularly bitter divorce.”	Against Applicant	Drug Related Criminal Charge	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	—	—
1.b	Applicant was arrested on or about September 29, 1994, in State A, and charged with (1) Inflict Injury/Spouse; (2) Inflict Corporal Injury; and (3) Battery. The criminal proceedings were suspended for one year, he was granted diversion, and he was required to perform 20 hours of volunteer service. Applicant views his wife as the instigator of the situation leading to his arrest.	Against Applicant	Domestic Violence	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	—	—
1.c	Applicant was arrested on or about July 27, 2004, in State A, and charged with Possession of a Controlled Narcotic Substance (Cocaine/Base Rock). He was observed by undercover officers buying rock cocaine. The criminal proceedings were suspended for six months, he was granted drug diversion, ordered to participate in substance abuse classes for six months, to participate in random drug testing, and to pay a $500 fee. He was also issued a Restraining Order to stay away from the drug dealer. On or about February 3, 2005, the charge was dismissed. Applicant admits the incident and he has “no excuse for [his] actions.”	Against Applicant	Drug Related Criminal Charge	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	—	—
1.d	The falsification alleged in 2.b., below, constitutes a violation of 18 U.S.C. 1001, a felony.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was arrested on or about June 2, 1994, in State A, and charged with being “Under the Influence of a Controlled Substance.” His criminal proceedings were suspended for one year and he was granted diversion. When he had successfully completed the diversion program, the charge against him was dismissed. Applicant explains the problem as arising during a “particularly bitter divorce.”

Against Applicant

Drug Related Criminal Charge

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

—

1.b

Applicant was arrested on or about September 29, 1994, in State A, and charged with (1) Inflict Injury/Spouse; (2) Inflict Corporal Injury; and (3) Battery. The criminal proceedings were suspended for one year, he was granted diversion, and he was required to perform 20 hours of volunteer service. Applicant views his wife as the instigator of the situation leading to his arrest.

Against Applicant

Domestic Violence

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

—

1.c

Applicant was arrested on or about July 27, 2004, in State A, and charged with Possession of a Controlled Narcotic Substance (Cocaine/Base Rock). He was observed by undercover officers buying rock cocaine. The criminal proceedings were suspended for six months, he was granted drug diversion, ordered to participate in substance abuse classes for six months, to participate in random drug testing, and to pay a $500 fee. He was also issued a Restraining Order to stay away from the drug dealer. On or about February 3, 2005, the charge was dismissed. Applicant admits the incident and he has “no excuse for [his] actions.”

Against Applicant

Drug Related Criminal Charge

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

—

1.d

The falsification alleged in 2.b., below, constitutes a violation of 18 U.S.C. 1001, a felony.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

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

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

—

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Case Profile

Summary

Why the Applicant Was Denied

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

STATEMENT OF CASE

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES