ISCR Case 05-06949.h1

Case Headnote

ISCR Case No. 05-06949.h1

deniedFeb 28, 2008· Hon. John Grattan Metz, Jr.· hearing

Summary

A 46-year-old telecommunications installer was denied a security clearance under Guideline J (Criminal Conduct) due to a history of multiple drug offenses. Between February 1981 and December 1996, the applicant was involved in six law enforcement incidents, ranging from marijuana possession and theft to assault, and more serious offenses involving cocaine possession and distribution. Three of these alleged offenses were dismissed, not disposed of, or nolle prossed, with the most recent of these occurring over 16 years prior.

However, the applicant had several significant convictions. In February 1988, he was convicted of cocaine possession, receiving a suspended one-year confinement, probation, and drug treatment. In October 1988, he was convicted of three counts of cocaine distribution and served 20 months in jail. His final conviction, in December 1996, was for attempted cocaine distribution, resulting in two years of probation. The applicant attributed these drug offenses to a desire to fit in, and his 1996 arrest involved obtaining cocaine to pay for a car wash, leading to an arrest by an undercover officer.

Despite some offenses being mitigated by time, the serious nature of the applicant's drug-related convictions, particularly those for cocaine possession and distribution, and the circumstances surrounding his most recent arrest, raised significant doubts about his judgment. The 20-month imprisonment for cocaine distribution was a disqualifying factor that could not be mitigated without meritorious circumstances, ultimately leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant had multiple serious drug offenses, including convictions for cocaine possession and distribution.
The circumstances of the applicant's most recent drug arrest raised significant doubts about his judgment.
The applicant's 20-month imprisonment disqualified him from holding a clearance, which could not be mitigated without meritorious circumstances.

Conditions Referenced

Disqualifying

AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)raisedAllegation or Admission of Criminal Conduct
AG ¶ 31(f)raisedConviction in a Federal or State Court

Mitigating

AG ¶ 32(a)rejectedTime Elapsed Since Criminal BehaviorWhile some minor offenses were mitigated by time, the serious drug charges were not.
AG ¶ 32(d)rejectedEvidence of Successful RehabilitationThe applicant did not provide sufficient evidence of rehabilitation to mitigate serious drug charges.

Key Rule Quoted

“The government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedNov 3, 2007
Answer filedNov 19, 2007
Hearing heldJan 30, 2008
Decision dateFeb 28, 2008

Cite For

Disqualifying Conditions Under Guideline J Due to Serious Criminal Conduct
Impact of Serious Drug Offenses on Security Clearance Eligibility
The Burden of Persuasion on the Applicant in Security Clearance Cases

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

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Between February 1981 and December 1996, Applicant was involved in six run-ins with law enforcement officials. The offenses run the gamut from simple marijuana possession, to theft, to assault, to more serious offenses involving cocaine possession and distribution. Three of the alleged offenses were dismissed.	For Applicant	Drug Related Criminal Charge	Dismissed or Nolle Prossed	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.b	The offenses run the gamut from simple marijuana possession, to theft, to assault, to more serious offenses involving cocaine possession and distribution. Three of the alleged offenses were dismissed (1.a.), not disposed of (1.b.) or nolle prossed (1.e.) under circumstances that suggest that the incidents lack security significance, particularly where the most recent of those incidents is over 16 years old.	For Applicant	Unspecified Criminal Conduct	—	Admitted	—	—	—
1.c	In February 1988, Applicant was convicted of cocaine possession, and sentenced to one year confinement, suspended, probation, and drug treatment.	Against Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
1.d	In October 1988, he was charged with three counts of cocaine distribution, was convicted, and served 20 months in jail.	Against Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
1.e	In December 1996 he was charged with multiple cocaine offenses, and ultimately pleaded guilty to attempted cocaine distribution—for which he received two-years probation.	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	—	—	—
1.f	Although Applicant came from a middle-class background, he attributes these drug offenses to his desire to be part of the 'in' crowd in his neighborhood.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
1.g	His 1996 arrest occurred when he obtained some cocaine from a friend so he could pay someone to wash his car. He was arrested by an undercover policeman.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Between February 1981 and December 1996, Applicant was involved in six run-ins with law enforcement officials. The offenses run the gamut from simple marijuana possession, to theft, to assault, to more serious offenses involving cocaine possession and distribution. Three of the alleged offenses were dismissed.

For Applicant

Drug Related Criminal Charge

Dismissed or Nolle Prossed

Admitted

—

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

—

1.b

The offenses run the gamut from simple marijuana possession, to theft, to assault, to more serious offenses involving cocaine possession and distribution. Three of the alleged offenses were dismissed (1.a.), not disposed of (1.b.) or nolle prossed (1.e.) under circumstances that suggest that the incidents lack security significance, particularly where the most recent of those incidents is over 16 years old.

For Applicant

Unspecified Criminal Conduct

—

Admitted

—

1.c

In February 1988, Applicant was convicted of cocaine possession, and sentenced to one year confinement, suspended, probation, and drug treatment.

Against Applicant

Drug Related Criminal Charge

Convicted

Admitted

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

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

1.d

In October 1988, he was charged with three counts of cocaine distribution, was convicted, and served 20 months in jail.

Against Applicant

Drug Related Criminal Charge

Convicted

Admitted

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

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

1.e

In December 1996 he was charged with multiple cocaine offenses, and ultimately pleaded guilty to attempted cocaine distribution—for which he received two-years probation.

For Applicant

Drug Related Criminal Charge

Convicted

Admitted

—

1.f

Although Applicant came from a middle-class background, he attributes these drug offenses to his desire to be part of the 'in' crowd in his neighborhood.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Admitted

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

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

1.g

His 1996 arrest occurred when he obtained some cocaine from a friend so he could pay someone to wash his car. He was arrested by an undercover policeman.

Against Applicant

Drug Related Criminal Charge

Conduct No Charge

Admitted

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

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

Loading case…

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

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

ANALYSIS

FORMAL FINDINGS

CONCLUSION

FOOTNOTES