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ISCR Case 06-17842.h1 — CASE

ISCR Case 06-17842.h1denied

Case Headnote

ISCR Case No. 06-17842.h1

deniedMay 23, 2007· Hon. Joseph Testan· hearing

Summary

This case concerns a 34-year-old defense contractor employee whose security clearance application was denied under Guideline J (Criminal Conduct). The denial stemmed from his conviction for Reckless Homicide, for which he was sentenced to ten years in prison and served 18 months.

The Statement of Reasons specifically alleged that the applicant was convicted of Reckless Homicide and received a sentence exceeding one year. Disqualifying conditions J.2.b and J.2.c were raised, while mitigating conditions J.3.a, J.3.b, and J.3.d were applied.

Despite a recommendation for a waiver, the applicant was ultimately denied a security clearance. The denial was based on 10 U.S.C. 986, which precludes individuals who have served a certain length of incarceration from receiving a security clearance, a condition met by the applicant's 18-month prison term.

Why the Applicant Was Denied

Applicant was convicted of Reckless Homicide and sentenced to more than one year in prison, which precludes him from receiving a security clearance under 10 U.S.C. 986.

Conditions Referenced

Disqualifying

J.2.bappliedA Single Serious Crime or Multiple Lesser Offenses
J.2.cappliedConviction in a Federal or State Court, Including a Court-martial of a Crime and Sentenced to Imprisonment for a Term Exceeding One Year

Mitigating

J.3.aappliedThe Criminal Behavior Was Not Recent
J.3.bappliedThe Crime Was an Isolated Incident
J.3.dappliedThe Person Did Not Voluntarily Commit the Act And/or the Factors Leading to the Violation Are Not Likely to Recur

Key Rule Quoted

“If it were not for 10 U.S.C. 986, I would conclude that it is now clearly consistent with the national interest to grant him access to classified information.”

Procedural Posture

SOR issuedAug 25, 2006
Answer filedSep 8, 2006Applicant elected to have case determined on a written record.
FORM submittedSep 29, 2006
Decision dateMay 23, 2007

Cite For

Application of 10 U.S.C. 986 Regarding Security Clearance Eligibility
Impact of Serious Criminal Conduct on Security Clearance
Consideration of Mitigating Factors in Criminal Conduct Cases

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: denied

Bond Amendment: the decision notes incarceration over one year or a dishonorable discharge — a statutory bar to SCI / Special Access / Restricted Data eligibility absent a waiver.

The applicant was convicted of Reckless Homicide and sentenced to more than one year in prison. Due to the length of incarceration, the judge determined that granting a security clearance was not clearly consistent with the national interest, resulting in a denial of the application. However, a waiver was recommended.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was convicted of Reckless Homicide and sentenced to more than one year in prison.	Against Applicant	Homicide	Convicted	Denied	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (b) pressured/coerced and unlikely to recur absent that pressure (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Passage of Time Credited No Subsequent Offenses Claimed Rehabilitation Evidence

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

SYNOPSIS

KEYWORD: Criminal Conduct DIGEST: Applicant was convicted of Reckless Homicide and sentenced to more than one year in prison. Because he was incarcerated for more than one year, 10 U.S.C. 986 precludes him from receiving a security clearance. Clearance is denied, but waiver recommended. CASENO: 06-17842.h1 DATE: 05/23/2007 DATE: May 23, 2007 In Re: ---------------- SSN: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-17842 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

APPEARANCES

FOR GOVERNMENT Ray T. Blank, Jr., Department Counsel FOR APPLICANT Pro Se SYNOPSIS Applicant was convicted of Reckless Homicide and sentenced to more than one year in prison. Because he was incarcerated for more than one year, 10 U.S.C. 986 precludes him from receiving a security clearance. Clearance is denied, but waiver recommended. See, Footnote 1 under Disqualifying Condition cof the Criminal Conduct guideline.

STATEMENT OF CASE

On August 25, 2006, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. Applicant responded to the SOR in writing on September 8, 2006, and elected to have his case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's written case (FORM) on or about September 29, 2007. Applicant did not file a response to the FORM. The case was assigned to me on April 16, 2007.

FINDINGS OF FACT

Applicant is a 34 year old employee of a defense contractor. In March 2000, applicant was involved in a traffic accident that resulted in a death. In 2001, he pleaded guilty to the charge of Reckless Homicide, and was sentenced to ten years in prison, all but three of which were suspended. He was incarcerated for 18 months. He was also placed on probation for two years.

CONCLUSION

In March 2000, applicant was involved in a traffic accident that resulted in a death. In 2001, he was convicted of Reckless Homicide and sentenced to 10 years in prison. He actually served about 18 months in prison. Disqualifying Conditions b. (a single serious crime or multiple lesser offenses), and c. (conviction in a Federal or State court, including a court-martial of a crime and sentenced to imprisonment for a term exceeding one year) are applicable. Although applicant’s criminal conduct was clearly serious, this isolated incident occurred over six years ago. In addition, this criminal conduct is of the type that is unlikely to recur. Based on these facts, applicant qualifies for Mitigating Conditions a. (the criminal behavior was not recent), b. (the crime was an isolated incident) and d. (the person did not voluntarily commit the act and/or the factors leading to the violation are not likely to recur). Given the passage of time since applicant engaged in this isolated act of criminal conduct, the unintentional nature of the crime, and the absence of any evidence of subsequent misconduct or criminal conduct on the part of applicant, I conclude that he is unlikely to engage in criminal conduct in the future. If it were not for 10 U.S.C. 986, I would conclude that it is now clearly consistent with the national interest to grant him access to classified information. In light of this statute, however, I must conclude that it is not clearly consistent with the national interest to grant applicant a security clearance. I recommend further consideration of this case for a waiver of 10 U.S.C. 986.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for applicant. Joseph Testan Administrative Judge