CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 15-04128.h1 — CASE

ISCR Case 15-04128.h1denied

Case Headnote

ISCR Case No. 15-04128.h1

deniedMar 16, 2017· Hon. Jennifer I. Goldstein· hearing

Summary

A 73-year-old male applicant was denied a security clearance under Guideline E (Personal Conduct) due to a history of serious criminal offenses and insufficient evidence of rehabilitation. The Statement of Reasons detailed three arrests: a March 2009 arrest and indictment for Felony Sexual Assault against a minor, a June 1980 arrest and indictment for Felony Sexual Abuse against a minor, and a September 1968 arrest and conviction for Assault with Intent to Ravish.

A key concern was the applicant's failure to list the September 1968 conviction on his e-QIP. Furthermore, he provided no evidence regarding his job performance, nor did he submit character references or other documentation to establish good judgment, trustworthiness, or reliability.

The denial was based on the significant security concerns posed by his criminal history. The applicant did not demonstrate positive behavioral changes or provide evidence of rehabilitation, nor did he show that he would not be susceptible to pressure or exploitation.

Why the Applicant Was Denied

The applicant's history of serious criminal offenses raised significant security concerns under Guideline E.
He failed to provide evidence of rehabilitation or positive behavioral changes.
The applicant did not demonstrate that he would not be susceptible to pressure or exploitation.

Conditions Referenced

Disqualifying

AG ¶ 16(e)appliedPersonal Conduct Creating Vulnerability to Exploitation
AG ¶ 15appliedConduct Involving Questionable Judgment

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”
— Directive, Enclosure 2 ¶ 2(b)

Procedural Posture

SOR issuedDec 8, 2015
Answer filedJan 6, 2016
Hearing held—Applicant requested decision on written record.
Decision dateMar 16, 2017

Cite For

Denial Based on Serious Criminal History Under Guideline E
Insufficient Evidence of Rehabilitation for Security Clearance
Vulnerability to Exploitation Due to Past Conduct

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 all allegations under Guideline E, citing serious past criminal conduct that raises security concerns. The applicant failed to provide sufficient evidence of rehabilitation or mitigating circumstances, leading to a denial of eligibility for a security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant admitted three arrests: an arrest and indictment for Felony Sexual Assault, against a minor, in March 2009; an arrest and indictment for Felony Sexual Abuse, against a minor, in June 1980; and an arrest and conviction for Assault with Intent to Ravish in September 1968.	Against Applicant	Questionable Judgment General	—	Admitted	(e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.b	Applicant did not list the conviction for Assault with Intent to Ravish in September 1968 on his e-QIP.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.c	Applicant provided no evidence concerning the quality of his job performance. He submitted no character references or other evidence tending to establish good judgment, trustworthiness, or reliability.	Against Applicant	Rules Violation at Workplace	—	Unknown	(e) personal conduct or concealment creating vulnerability to exploitation	—	—

Descriptive standardized rendering of a decided public case (Guideline E). 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. 15-04128 ) ) Applicant for Security Clearance )

For Government: Tara R. Karoian, Esquire, Department Counsel For Applicant: Pro se

March 16, 2017 ______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

On September 2, 2014, Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP). On December 8, 2015, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline E (Personal Conduct). The action was taken under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of 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 Department of Defense on September 1, 2006.

Applicant answered the SOR in writing on January 6, 2016. Applicant requested his case be decided on the written record in lieu of a hearing.

Department Counsel submitted six Items in support of the SOR allegations. Item 6 is inadmissible. It will not be considered or cited as evidence in this case. It is the summary of an unsworn interview of Applicant conducted by an interviewer from the Office of Personnel Management in January 2015. Applicant did not adopt it as his own statement, or otherwise certify it to be accurate. Under Directive ¶ E3.1.20, this Report of Investigation summary is inadmissible in the absence of an authenticating witness. In light of Applicant’s admissions, it is also cumulative.

A complete copy of the file of relevant material (FORM), consisting of Items 1 to 6, was provided to Applicant on March 10, 2016. He was given the opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant received the file on March 15, 2016. Applicant did not file a Response to the FORM within the 30 day time allowed that expired on April 14, 2016.

I received the case assignment on November 1, 2016. Based upon a review of the pleadings and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

Under Paragraph 1, Personal Conduct, Applicant admitted three arrests: an arrest and indictment for Felony Sexual Assault, against a minor, in March 2009; an arrest and indictment for Felony Sexual Abuse, against a minor, in June 1980; and an arrest and conviction for Assault with Intent to Ravish in September 1968. (Item 2.)

Applicant is 73 years old. He has worked for his employer, a government contractor, since April 2014. He served in the Army from 1965 to 1967 and received an honorable discharge. He is married. He did not list any children on his e-QIP. (Item 3.)

Under “Section 22-Police Record” on his e-QIP, Applicant disclosed that in September 1980 he was charged with felony “child abuse,” but was found innocent. He also described a September 2007 “child abuse” charge because “while swimming in our pool[,] Grandda[ughter] said my foot went between her legs, when she came up behind me.” He indicated the “charges [were] dropped by [the] court.” He did not list the conviction for Assault with Intent to Ravish in September 1968 on his e-QIP. (Item 3.)

Applicant’s Federal Bureau of Investigation record shows that Applicant was arrested in September 1968 and charged with Assault with Intent to Ravish. Applicant’s answer to the SOR indicated that he was sentenced to probation for one year for this offense. He was also arrested in June 1980 for Sexual Abuse 1st degree, but he was found not guilty by a jury. Police records from Applicant’s 2009 arrest show that his alleged victim, Applicant’s step-granddaughter, claimed that during the period February 2006 to November 2008, Applicant sexually assaulted her by “touching her sexually and expos[ing] himself to her.” A grand jury indicted Applicant on this charge. Applicant pled not guilty. The case was dismissed in May 2010, under the condition that Applicant have no contact with the victim. (Item 1; Item 5.) Applicant provided no evidence concerning the quality of his job performance. He submitted no character references or other evidence tending to establish good judgment, trustworthiness, or reliability. I was unable to evaluate his credibility, demeanor, or character in person since he elected to have his case decided without a hearing.

POLICIES

When evaluating an applicant's suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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, the administrative judge applies the guidelines in conjunction with the factors listed in AG ¶ 2 describing 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 Awhole-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[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.

According to 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline E, Personal Conduct

The security concern for the Personal Conduct guideline is set out in AG ¶ 15:

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. The following disqualifying condition is potentially applicable:

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group.

Applicant’s conviction for Assault with Intent to Ravish in 1968, and his subsequent arrests for Felony Sexual Abuse and Assault, against a minor, in 1980 and 2009 create a vulnerability to exploitation, manipulation, or duress; and affect his personal, professional, or community standing. This conduct raises security concerns under AG ¶16(e), and demonstrates questionable judgment under AG ¶ 15.

AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable under the facts of this case:

(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;

(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; and (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

The Appeal Board explained an applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). (ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).)

Applicant did not meet his burden to establish mitigation under any of these conditions. He did not present evidence to show how his past arrests and conviction no longer cast doubt on his reliability, trustworthiness, and judgment. He did not present documentation to show he has taken other positive steps to alleviate the stressors, circumstances, or factors that caused his untrustworthy, unreliable, and inappropriate behavior. He did not establish that he has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

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 relevant 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 guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. Applicant committed a serious criminal offense at the age of 24, which resulted in conviction and probation for one year. This court action should have put him on notice that any such similar conduct would result in serious ramifications for him. Over the course of his life, similar allegations have resurfaced. He failed to present sufficient evidence of rehabilitation or other permanent behavioral changes to show that he would not be susceptible to pressure, coercion, exploitation, or duress. Overall, the record evidence leaves me with questions or substantial 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 the guideline for Personal Conduct.

FORMAL FINDINGS

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

Paragraph 1, Guideline E: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: 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.

_________________ Jennifer I. Goldstein Administrative Judge