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ISCR Case 15-00239.h1 — CASE

ISCR Case 15-00239.h1denied

Case Headnote

ISCR Case No. 15-00239.h1

deniedJul 1, 2015· Hon. Robert E. Coacher· hearing

Summary

A 57-year-old defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a lengthy criminal history spanning over 30 years, which included multiple charges for driving under the influence (DUI) and controlled substance offenses, as well as charges for driving on a suspended license.

Key issues also included a felony conviction for credit card fraud in 1981, resulting in a three-year incarceration, and charges for assault with intent to rape and spousal abuse in 1988. Additionally, the applicant faced charges for grand theft, burglary, and various drug-related offenses, including possession, sale, and transportation of controlled substances.

The judge found that the applicant deliberately failed to disclose many of these criminal offenses on his March 2014 security clearance application, specifically omitting felony and drug/alcohol-related incidents. This omission, combined with a lack of credible evidence of rehabilitation, led to the determination that the applicant failed to mitigate the security concerns, resulting in the denial of his clearance.

Why the Applicant Was Denied

The applicant has a long history of criminal conduct spanning over 30 years, raising significant doubts about his reliability and trustworthiness.
He failed to provide sufficient evidence of rehabilitation or to mitigate the security concerns related to his criminal history.
The applicant deliberately omitted significant criminal offenses from his security clearance application, undermining his credibility.

Conditions Referenced

Disqualifying

J30appliedCriminal Conduct
E16appliedPersonal Conduct

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedOct 30, 2015
Answer filedNov 24, 2015
Hearing held—Case decided on written record.
Decision dateNov 22, 2016

Cite For

Denial of Security Clearance Due to Extensive Criminal History Under Guideline J
Failure to Mitigate Personal Conduct Concerns Under Guideline E
Importance of Full Disclosure in Security Clearance Applications

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: denied

The judge found against the applicant on the personal conduct allegations under Guideline E, determining that the applicant failed to provide truthful information during the security clearance process. The applicant's history of criminal conduct and lack of candor raised significant concerns about his reliability and trustworthiness, leading to a denial of eligibility for access to classified information.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	deliberately failing to provide correct information while completing his security clearance application in March 2014 concerning past felony offenses and offenses involving drugs and alcohol by failing to disclose the offenses listed in SOR ¶¶ 1.c – 1.i and 1.l – 1.p.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b	failed to list many of his criminal charges on his security clearance application.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—

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: denied

The judge found against the applicant on all allegations under Guideline J, indicating that the applicant's extensive criminal history raised significant concerns about his judgment, reliability, and trustworthiness. The applicant's criminal conduct, which included multiple DUI charges and other serious offenses, was deemed insufficiently mitigated, leading to a denial of eligibility for a security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Pleading guilty to driving on a suspended license in July 2007 (SOR ¶ 1.a)	Against Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.b	Being arrested for driving on a suspended license, and other related charges, in June 2006 (SOR ¶ 1.b)	Against Applicant	Traffic Offense Pattern	Arrested Not Charged	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.c	Being charged with driving under the influence (DUI) of alcohol/controlled substance and other related charges in June 2004 (SOR ¶ 1.c)	Against Applicant	DUI or DWI Criminal	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.d	Being charged with DUI and other related charges in November 2003 (SOR ¶ 1.d)	Against Applicant	DUI or DWI Criminal	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.e	Being charged with DUI of alcohol/controlled substance and other related charges in September 2003 (SOR ¶ 1.e)	Against Applicant	DUI or DWI Criminal	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.f	Being charged with under the influence of a controlled substance in July 2002 (SOR ¶ 1.f)	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.g	Being charged with possession of a controlled substance in June 2002 (SOR ¶ 1.g)	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.h	Being charged with DUI of alcohol/controlled substance in January 2002 (SOR ¶ 1.h)	Against Applicant	DUI or DWI Criminal	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.i	Being charged with under the influence of a controlled substance in November 2001 (SOR ¶ 1.i)	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.j	Being charged with rape of spouse by force, fear, or threat in January 1994 (SOR ¶ 1.j)	Against Applicant	Sexual Offense Criminal	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.k	Being charged with contempt of court in October 1991 (SOR ¶ 1.k)	Against Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.l	Being charged with assault with the intent to rape, spousal abuse, and possession of amphetamines in August 1988 (SOR ¶ 1.l)	Against Applicant	Assault or Battery	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.m	Being charged with possession of a controlled substance in March 1988 (SOR ¶ 1.m)	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.n	Being charged with sale and transporting marijuana/hashish in June 1986 (SOR ¶ 1.n)	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.o	Being charged with parole violation and transporting marijuana in April 1983 (SOR ¶ 1.o)	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.p	Being charged and convicted of felony credit card fraud and sentenced to three years’ incarceration in January 1981 (SOR ¶ 1.p)	Against Applicant	Fraud or Deception Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.q	Being charged with grand theft of personal property in October 1979 (SOR ¶ 1.q)	Against Applicant	Theft or Larceny	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.r	Being charged with burglary in March 1977 (SOR ¶ 1.r)	Against Applicant	Trespassing or Burglary	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

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

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 15-00239 ) ) Applicant for Security Clearance )

For Government: Andrea M. Corrales, Esq., Department Counsel For Applicant: Pro se

11/22/2016 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant has not mitigated the criminal conduct or the personal conduct security concerns. Eligibility for access to classified information is denied.

Statement of the Case

On October 30, 2015, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines J and E. DOHA acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DOD on September 1, 2006.

Applicant answered the SOR on November 24, 2015, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) on February 4, 2016. The FORM was mailed to Applicant who received it on March 11, 2016. The documents in the FORM included the pleadings (Items 1-2) and evidence (Items 3-5). Applicant was given an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He did not submit any additional evidence or object to the Government’s evidence. Items 3-5 are admitted into the record. The case was assigned to me on November 2, 2016.

FINDINGS OF FACT

In Applicant’s answer to the SOR, he admitted SOR ¶¶ 1.a – 1.r. He denied SOR ¶ 2.b (he failed to respond to SOR ¶ 2.a, which was a cross allegation of SOR ¶¶ 1.a – 1.r). The admissions are adopted as findings of fact. After a thorough and careful review of the pleadings and evidence submitted, I make the following additional findings of fact.

Applicant is 57 years old. He is married and has one adult child. He has worked for his current employer, a defense contractor, since February 2014. Before 2014, he worked in the private sector. He has never held a security clearance before.1

Applicant’s admitted conduct raised in the SOR concerning Guidelines J includes: (1) pleading guilty to driving on a suspended license in July 2007 (SOR ¶ 1.a); (2) being arrested for driving on a suspended license, and other related charges, in June 2006 (SOR ¶ 1.b); (3) being charged with driving under the influence (DUI) of alcohol/controlled substance and other related charges in June 2004 (SOR ¶ 1.c); (4) being charged with DUI and other related charges in November 2003 (SOR ¶ 1.d); (5) being charged with DUI of alcohol/controlled substance and other related charges in September 2003 (SOR ¶ 1.e); (6) being charged with under the influence of a controlled substance in July 2002 (SOR ¶ 1.f); (7) being charged with possession of a controlled substance in June 2002 (SOR ¶ 1.g); (8) being charged with DUI of alcohol/controlled substance in January 2002 (SOR ¶ 1.h); (9) being charged with under the influence of a controlled substance in November 2001 (SOR ¶ 1.i); (10) being charged with rape of spouse by force, fear, or threat in January 1994 (SOR ¶ 1.j); (11) being charged with contempt of court in October 1991 (SOR ¶ 1.k); (12) being charged with assault with the intent to rape, spousal abuse, and possession of amphetamines in August 1988 (SOR ¶ 1.l); (13) being charged with possession of a controlled substance in March 1988 (SOR ¶ 1.m); (14) being charged with sale and transporting marijuana/hashish in June 1986 (SOR ¶ 1.n); (15) being charged with parole violation and transporting marijuana in April 1983 (SOR ¶ 1.o); (16) being charged and convicted of felony credit card fraud and sentenced to three years’ incarceration in January 1981 (SOR ¶ 1.p); (17) being charged with grand theft of personal property in October 1979 (SOR ¶ 1.q); (18) being charged with burglary in March 1977 (SOR ¶ 1.r).

The personal conduct allegations included cross alleging all the Guideline J allegations, and deliberately failing to provide correct information while completing his security clearance application in March 2014 concerning past felony offenses and offenses involving drugs and alcohol by failing to disclose the offenses listed in SOR ¶¶ 1.c – 1.i and 1.l – 1.p.

In April 2014, during the course of Applicant’s security clearance review, he was interviewed by an investigator who questioned him about all the criminal charges listed in the SOR. Applicant admitted all the criminal acts except that he could not recall the two marijuana charges in 1983 and 1986. He admitted using methamphetamines from 1983 to 1989, and again from 2001 to 2003. He claims that he no longer uses illegal drugs and has no intent to do so in the future. He did not present documents to support his recovery. Applicant recalled in detail the events that led to his conviction for felony credit card fraud where he served a two-year sentence in state prison. He failed to list this offense on his security clearance application. He also failed to list his DUI and possession of controlled substance offenses. In his SOR answer, he claimed that he listed the criminal information that he had on a DOJ printout and from his memory.2

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion to obtain a favorable security decision.”

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline J, Criminal Conduct

The security concern relating to the guideline for criminal conduct is set out in AG ¶ 30:

Criminal activity creates doubt about an Applicant’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules and regulations.

AG ¶ 31 describes conditions that could raise a security concern and may be disqualifying in this case. The following are potentially applicable:

(a) a single serious crime or multiple lesser offenses; and

(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted. From 1977 to 2007, Applicant has been arrested and often convicted of numerous criminal offenses. I find that both disqualifying conditions apply.

I have also considered all of the mitigating conditions for criminal conduct under AG ¶ 32 and considered the following relevant:

(a) so 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; and

(d) there 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.

Applicant’s most recent offense was in 2007. He has shown a steady pattern of criminal activity since 1977. There has not been a sufficient amount of time to determine whether his rehabilitative efforts will be successful. His past criminal behavior casts doubt on his reliability, trustworthiness, and good judgment. Under these circumstances, his last criminal act is not sufficiently attenuated considering his behavior in its totality. AG ¶ 32(a) does not apply. Applicant failed to present sufficient evidence of his rehabilitative efforts to justify full mitigation. AG ¶ 32(d) does not apply.

Guideline E, Personal Conduct

AG ¶ 15 expresses the personal conduct security concern:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying in this case. The following disqualifying conditions are potentially applicable:

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; and (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information.

The same rationale that applied to the Guideline J concerns, also applies here. AG ¶ 16(c) applies. He also failed to list many of his criminal charges on his security clearance application. He claims he put the information on his security clearance application that was listed on a DOJ printout that he possessed and from what he remembered of the incidents. I do not find it credible that he did not remember a felony for which he was convicted and sentenced to two years’ prison time, which he served. He deliberately failed to list his felony charges, as well as his alcohol and drug charges on his security clearance application in 2014. AG ¶ 16(a) applies.

The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered all of the mitigating conditions under AG ¶ 17 and found the following relevant:

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.

I considered all of the facts and circumstances surrounding Applicant’s falsifications. Falsifying information on a security clearance application is not a minor offense and doing so casts doubt on his trustworthiness, reliability, and good judgment. He presented no evidence to support his assertion that he has stopped using drugs, nor evidence that he received counseling. Although nine years have passed since his last criminal offense, his extensive past criminal history over the preceding 30 years casts doubt on his reliability, trustworthiness, and good judgment. AG ¶¶ 17(c) and 17(d) do not apply.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent 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.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guideline and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant engaged in criminal conduct over a long period of time. He failed to provide sufficient evidence to mitigate the security concerns.

Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline J, criminal activity and Guideline E, personal conduct.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline J: AGAINST APPLICANT Subparagraphs 1.a – 1.r: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a – 2.b: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Robert E. Coacher Administrative Judge