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ISCR Case 05-06890.h1 — CASE

ISCR Case 05-06890.h1granted

Case Headnote

ISCR Case No. 05-06890.h1

grantedJun 14, 2007· Hon. Charles D. Ablard· hearing

Summary

A 38-year-old defense contractor employee was granted a security clearance despite allegations under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons detailed multiple drug and alcohol-related offenses during his military service in 1988, 1989, and 1991. After leaving the Army, he incurred additional drug offenses in 1994, 1995, and 1996.

The applicant successfully mitigated these concerns by demonstrating a decade of rehabilitation, with his only subsequent criminal record being a single minor traffic offense. He also addressed a personal conduct allegation regarding a security clearance revocation from 1993.

The applicant established that he was unaware of this revocation because he had already departed from the Army prior to the notification being issued. Based on these mitigating factors, the security clearance was granted.

Why the Applicant Prevailed

Demonstrated ten years of rehabilitation with no criminal record other than one minor traffic offense.
Established lack of awareness regarding the 1993 security clearance revocation due to not receiving notification.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 32 aappliedTime Elapsed Since Criminal BehaviorTen years have elapsed since the last criminal behavior.
AG ¶ 32 dappliedEvidence of Successful RehabilitationClear evidence of successful rehabilitation over the past ten years.

Key Rule Quoted

“The objective of the security clearance process is the fair-minded, commonsense assessment of a person’s trustworthiness and fitness for access to classified information.”

Procedural Posture

SOR issuedDec 11, 2006
Answer filedJan 19, 2007
Hearing heldApr 24, 2007Applicant testified on his own behalf.
Decision dateJun 14, 2007

Cite For

Mitigation of Criminal Conduct Under Guideline J Due to Evidence of Rehabilitation
Mitigation of Personal Conduct Allegations Based on Lack of Awareness of Security Clearance Revocation
Consideration of the 'whole Person' Concept 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.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found in favor of the applicant on all allegations under Guideline E, concluding that the applicant mitigated concerns regarding personal conduct. The applicant's failure to report a security clearance revocation was deemed unintentional due to a lack of notification, and the applicant demonstrated significant rehabilitation from past criminal conduct.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a–1.b	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant		—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge granted the applicant's security clearance despite a history of criminal conduct, including drug offenses during military service and subsequent years. The applicant demonstrated significant rehabilitation over the past ten years, with no criminal record other than a minor traffic offense, leading to a favorable decision on all allegations under Guideline J.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	During his military service he was charged with a number of offenses relating to drugs and alcohol in 1988, 1989, and 1991 (SOR ¶ 2.a.)	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
2.b	During his military service he was charged with a number of offenses relating to drugs and alcohol in 1988, 1989, and 1991 (SOR ¶ 2.b.)	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
2.c	During his military service he was charged with a number of offenses relating to drugs and alcohol in 1988, 1989, and 1991 (SOR ¶ 2.c.)	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
2.d	During his military service he was charged with a number of offenses relating to drugs and alcohol in 1988, 1989, and 1991 (SOR ¶ 2.d.)	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
2.e	After leaving the Army, Applicant had a series of drug offenses in 1994, 1995, and 1996 (SOR ¶ 2.e.)	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
2.f	After leaving the Army, Applicant had a series of drug offenses in 1994, 1995, and 1996 (SOR ¶ 2.f.)	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
2.g	After leaving the Army, Applicant had a series of drug offenses in 1994, 1995, and 1996 (SOR ¶ 2.g.)	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—

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: Personal Conduct; Criminal Conduct

DIGEST: Applicant, a 38-year-old employee of a defense contractor, mitigated allegations of criminal conduct arising from a series of offenses while in the Army in the 1980's and thereafter in the mid-1990's leading to a conviction on a drug charge resulting in incarceration for seven months in 1997. Since then he has substantially improved his conduct with no criminal record other than one minor traffic offense. He has demonstrated his rehabilitation for ten years. He mitigated a personal conduct allegation concerning failure to list a 1993 security clearance revocation at Question 32 on his security clearance application (SF 86) of July 8, 2004, by establishing that he was unaware of the revocation since he had left the Army three months before the revocation and was not notified of it. Clearance is granted.

CASENO: 05-06890.h1

DATE: 06/14/2007

DATE: June 14, 2007

) ) In Re: ) ) ISCR Case No. 05-06890 ----------------------- ) SSN: ----------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE CHARLES D. ABLARD

APPEARANCES

SYNOPSIS

Applicant, a 38-year-old employee of a defense contractor, mitigated allegations of criminal conduct arising from a series of offenses while in the Army in the 1980's and thereafter in the mid- 1990's leading to a conviction on a drug charge resulting in incarceration for seven months in 1997. Since then he has substantially improved his conduct with no criminal record other than one minor traffic offense. He has demonstrated his rehabilitation for ten years. He mitigated a personal conduct allegation concerning failure to list a 1993 security clearance revocation at Question 32 on his security clearance application (SF 86) of July 8, 2004, by establishing that he was unaware of the revocation since he had left the Army three months before the revocation and was not notified of it. Clearance is granted. STATEMENT OF CASE

On December 11, 2006, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, 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. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

On January 19, 2006, Applicant responded to the SOR allegations, and requested a hearing. The matter was assigned to me on March 26, 2007. A notice of hearing was issued on April 11, 2007, for a hearing on April 24, 2007, and held that day. The government offered 17 exhibits and all were admitted into evidence. Applicant offered none at the hearing, but the record was left open for 30 days. Applicant submitted one additional exhibit with six attachments that was admitted in evidence without objection. Applicant testified on his own behalf. The transcript was received on May 2, 2007.

FINDINGS OF FACT

Applicant admitted the specific facts of the two SOR allegations but provided explanatory information. After a complete review of the record, I make the following findings of fact:

Applicant is a 38-year-old employee of a defense contractor who works as network analyst for hourly wages. Between 1986 and December 1992 he was on active duty in the Army when he held a security clearance. During his military service he was charged with a number of offenses relating to drugs and alcohol in 1988, 1989, and 1991 (SOR ¶ 2.a., b.,c., and d.) As a result of this conduct the Army Central Personnel Security Clearance Facility (facility) sent him for a psychological evaluation for the purpose of determining eligibility for holding a security clearance. This was done by a letter dated May 17, 1992, to the commander of his organization. The evaluation was made on July 21, 1992, and signed by a licensed psychologist in the psychiatry department. It recommended alcohol rehabilitation treatment on an outpatient basis and noted that Applicant was unaware of the reason for the evaluation. (Exh. 14).

A Letter of Intent (LOI) to revoke his security clearance was sent by the facility on October 19, 1992, through his commander (Exh. 15). During the period from the time of his evaluation in July 1992 until he was honorably discharged as an E-4 in December 1992, he was attempting to get an early discharge to attend a trade school and was not at any fixed assignment on the base. The facility did not receive a response to the LOI, so a final revocation letter was sent to the commander on March 2, 1993, after Applicant had left the service (Exh. 16) and moved to his home three months earlier. He was not advised of this action because he had left his mother’s address for forwarding. When he arrived home, he discovered that she had moved to a new address but he did not file a new address with the Army.

In his application for a security clearance (SF 86) filed July 8, 2004, Applicant did not report at Question 32 that his security clearance has been revoked by the Army on March 2, 1993, since he did not receive the LOI or the revocation documents.

After leaving the Army, Applicant had a series of drug offenses in 1994, 1995, and 1996 (SOR ¶ 2.e., f., and g.). The last two involved a probation violation and several drug charges. These were consolidated, and he pled guilty to one of the charges. He was sentenced to four years imprisonment, but served only seven months between September 1996 and April 1997 (Exh. 2). The incarceration was a wake-up call for Applicant. After his release he changed his life, enrolled in Alcoholics Anonymous and Narcotics Anonymous, and has not used alcohol or drugs for ten years. His only legal infraction in the past ten years has been one speeding ticket in 2000.

Applicant is well regarded by his employer (Exh.A 1-4) for his technical and management skills, and his work ethic. He was married in 1997 and has three children ages 18, 13 and 7 for whom he is responsible. He has owned his own home since May 2000. He has an associate degree in information technology management.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has “the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position that will give that person access to such information.” Id. at 527.

An evaluation of whether the applicant meets the security guidelines includes consideration of the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Directive, ¶ E2.2.1. Security clearances are granted only when “it is clearly consistent with the national interest to do so.” Executive Order No. 10865 § 2. See Executive Order No. 12968 § 3.1(b).

Initially, the government must establish, by something less than a preponderance of the evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information See Egan, 484 U.S. at 531. The applicant then bears the burden of demonstrating it is clearly consistent with the national interest to grant or continue a security clearance. “Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security.” Directive, ¶ E2.2.2. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531. See Executive Order No. 12968 § 3.1(b).

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate adjudicative factors, I conclude the following with respect to all allegations set forth in the SOR:

Applicant’s failure to report the revocation of his security clearance in 1993 prompted the allegations of security concerns under the revised Adjudicative Guideline E (Personal Conduct). Such conduct might indicate questionable judgment, unreliability, and unwillingness to comply with rules and regulations and could indicate that the person may not properly safeguard classified information (AG ¶ 15). Specifically, the deliberate omission, concealment, or falsification of relevant and material facts in a personnel security interview could raise a security concern and be disqualifying. (AG ¶ 16 a). The circumstances of the revocation action after he had left the service, the statement of the psychologist (Exh. 14) that Applicant was unaware of the reason for his evaluation, and his credible testimony that he did not receive notice of the LOI or the revocation, and was unaware of the action taken until receipt of the SOR warrants a determination in his favor on this allegation.

Under Guideline J, Criminal Conduct, a security concern arises when there is a history of criminal activity that creates doubt about a person’s judgment, reliability, and trustworthiness (AG ¶ 30). Conditions that could raise a security concern and may be disqualifying include allegations or admission of criminal conduct, regardless of whether the person was formally charged, prosecuted or convicted (AG ¶ 31 c), or a single serious offense or multiple lesser offenses (AG ¶ 31 a). The criminal conduct of Applicant during his Army service and the period up to and including his incarceration ending in 1997 was sufficient to warrant the allegation under this guideline. The allegations could be mitigated if so much time has elapsed since the criminal behavior occurred that it unlikely to recur. (AG ¶ 32 a), or there is clear evidence of successful rehabilitation (AG ¶ 32 d). The fact that all the offenses are now ten years old or older and there has been evidence of successful rehabilitation over the past ten years warrants application of both mitigating conditions.

In all adjudications the protection of our national security is of paramount concern. Persons who have access to classified information have an overriding responsibility for the security concerns of the nation. The objective of the security clearance process is the fair-minded, commonsense assessment of a person’s trustworthiness and fitness for access to classified information.

The “whole person” concept recognizes we should view a person by the totality of their acts and omissions. Each case must be judged on its own merits taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis. Applicant led a troubled life with several arrests and charges both during his military service and the period thereafter which led finally to his incarceration. He has changed his conduct over the past ten years and now holds a responsible position with family obligations which he fulfilling.

After considering all the evidence in its totality, including the whole person of Applicant, I conclude a security clearance should be granted.

FORMAL FINDINGS

Formal findings as required by the Directive (Par. E3.1.25) are as follows:

Paragraph 1. Guideline E: FOR APPLICANT

Subparagraph 1.a.: For Applicant Subparagraph 1.b.: For Applicant

Paragraph 2. Guideline J: FOR APPLICANT

Subparagraph 2.a.: For Applicant Subparagraph 2.b.: For Applicant Subparagraph 2.c.: For Applicant Subparagraph 2.d.: For Applicant Subparagraph 2.e.: For Applicant Subparagraph 2.f.: For Applicant Subparagraph 2.g.: For Applicant

DECISION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or renew a security clearance for Applicant. Clearance is granted.

Charles D. Ablard Administrative Judge

FOOTNOTES

FOR GOVERNMENT Eric H. Borgstrom, Esq. , Department Counsel

FOR APPLICANT Pro Se