ISCR Case 06-21516.h1

Case Headnote

ISCR Case No. 06-21516.h1

grantedAug 10, 2007· Hon. Wilford H. Ross· hearing

Summary

A 27-year-old married Test Engineer with a Bachelor’s degree sought to retain his Top Secret-level DoD security clearance despite a history of minor criminal and dishonest conduct, primarily related to driving offenses and theft. The allegations included a 1998 grocery store theft, two instances of marijuana use in 1997 and 2002, and a 2002 non-judicial punishment in the Army for fighting. Additionally, the Applicant faced charges for missing a 2002 court date for a traffic citation, a 2003 arrest for driving on a suspended license, and a 2004 arrest for reckless driving and evading a police officer, to which he pled guilty to reckless driving, receiving a fine and probation. He consistently denied a 1999 public peace offense arrest, providing evidence he was overseas with the Army.

The Administrative Judge considered the Applicant's conduct under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). Disqualifying conditions were raised, but mitigating conditions were also applied.

The security clearance was GRANTED because the Applicant took responsibility for his past actions, demonstrated a change in attitude towards the law, and provided persuasive evidence of rehabilitation, including a promotion and a good employment record. The Judge noted that the majority of the criminal conduct occurred over 15 years ago, with no significant misconduct since 2004.

Why the Applicant Prevailed

The Applicant took responsibility for his past conduct and demonstrated a change in attitude towards the law.
He presented evidence of successful rehabilitation, including a promotion at work and a good employment record.
The majority of the criminal conduct occurred over 15 years ago, and there has been no significant misconduct since 2004.

Conditions Referenced

Disqualifying

J 31.(a)raisedA Single Serious Crime or Multiple Lesser Offenses
J 31.(d)raisedIndividual Is Currently on Parole or Probation
E 16.(c)raisedCredible Adverse Information in Several Adjudicative Areas
E 16.(d)raisedCredible Adverse Information That Is Not Explicitly Covered Under Any Other Guideline

Mitigating

J 32.(a)appliedSo Much Time Has Elapsed Since the Criminal Behavior Happened
J 32.(d)appliedEvidence of Successful Rehabilitation
E 17.(c)appliedThe Offense Is so Minor, or so Much Time Has Passed

Key Rule Quoted

“Each adjudication is to be an overall common sense determination based upon consideration and assessment of all available information, both favorable and unfavorable.”

Procedural Posture

SOR issuedNov 27, 2006
Answer filedDec 15, 2006
Hearing heldMar 15, 2007
Decision dateAug 10, 2007

Cite For

Mitigation of Criminal Conduct Under Guideline J Due to Time Elapsed and Evidence of Rehabilitation
Successful Rebuttal of Personal Conduct Allegations Under Guideline E
Consideration of Maturity and Personal Growth 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.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The Applicant was working as a bagger at a grocery store in 1998. He freely admits that he used extremely poor judgment when he stole some grocery items from his employer. He was terminated for this incident.	For Applicant	Questionable Judgment General	—	Admitted	—	(d) acknowledged the behavior; counseling/positive steps taken	Claimed Acknowledgment and Remorse
2.b	The Applicant used marijuana twice, in 1997 and August 2002. The August incident happened after the Applicant had been discharged from the Army, but his security clearance was still active. The Applicant did not know that his security clearance was still active at that time.	For Applicant	Questionable Judgment General	—	Admitted	—	(d) acknowledged the behavior; counseling/positive steps taken	Claimed Acknowledgment and Remorse
2.c	The Applicant’s conduct, set forth under Paragraph 1, above, will be viewed under this Guideline as well.	For Applicant	Pattern of Dishonesty or Rule Violations	—	Unknown	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

The Applicant was working as a bagger at a grocery store in 1998. He freely admits that he used extremely poor judgment when he stole some grocery items from his employer. He was terminated for this incident.

For Applicant

Questionable Judgment General

—

Admitted

—

(d) acknowledged the behavior; counseling/positive steps taken

Claimed

Acknowledgment and Remorse

2.b

The Applicant used marijuana twice, in 1997 and August 2002. The August incident happened after the Applicant had been discharged from the Army, but his security clearance was still active. The Applicant did not know that his security clearance was still active at that time.

For Applicant

Questionable Judgment General

—

Admitted

—

(d) acknowledged the behavior; counseling/positive steps taken

Claimed

Acknowledgment and Remorse

2.c

The Applicant’s conduct, set forth under Paragraph 1, above, will be viewed under this Guideline as well.

For Applicant

Pattern of Dishonesty or Rule Violations

—

Unknown

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The Applicant has consistently denied being arrested on November 26, 1999, for a Public Peace Offense. He submitted his DD-214, which shows that he was on an overseas tour with the Army on that particular date. (Applicant’s Exhibit C; Transcript at 16-17.)	For Applicant	Unspecified Criminal Conduct	—	Denied	—	—	—
1.b	The Applicant admitted receiving Non-Judicial punishment in the Army in 2002 for having a fight with a fellow soldier. He was sentenced to perform extra duty. According to the Applicant, this was one of three fights he has had in his life. (Transcript at 17-18, 30-32.)	For Applicant	Assault or Battery	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.c	In 2002, the Applicant missed a court date for a traffic citation and a warrant for Failure to Appear was issued. In November 2002 he was arrested on this charge. He subsequently paid a fine and the charge was dismissed. The Applicant admitted he was at fault for missing the court date and avers that such an occurrence will never happen again. (Transcript at 19-20, 34-36.)	For Applicant	Traffic Offense Pattern	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.d	The Applicant’s next involvement with the police happened in October 2003 when, after a traffic stop, he was arrested for Driving on a Suspended License. The Applicant avers that he did not know his license was suspended for having too many driving infractions. However, the Applicant testified, “I went to Court and pled guilty to driving with a suspended license and I was given five days in jail, in which I served three and I did pay my fine.” (Transcript at 20-21, 36-37.)	For Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (d) violation of parole/probation or failure to complete a court program	—	—
1.e	On November 2, 2004, the Applicant was arrested and charged with Reckless Driving and Evading a Police Officer. He pled Guilty to the Reckless Driving Charge, for which he received a $761 fine and 36 months informal probation. The probation will expire in April 2008. The available evidence indicates that this incident was not as serious as the charges indicate. (Transcript at 21-25, 38-42.)	For Applicant	Traffic Offense Pattern	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (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

The Applicant has consistently denied being arrested on November 26, 1999, for a Public Peace Offense. He submitted his DD-214, which shows that he was on an overseas tour with the Army on that particular date. (Applicant’s Exhibit C; Transcript at 16-17.)

For Applicant

Unspecified Criminal Conduct

—

Denied

—

1.b

The Applicant admitted receiving Non-Judicial punishment in the Army in 2002 for having a fight with a fellow soldier. He was sentenced to perform extra duty. According to the Applicant, this was one of three fights he has had in his life. (Transcript at 17-18, 30-32.)

For Applicant

Assault or Battery

Conduct No Charge

Admitted

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

—

1.c

In 2002, the Applicant missed a court date for a traffic citation and a warrant for Failure to Appear was issued. In November 2002 he was arrested on this charge. He subsequently paid a fine and the charge was dismissed. The Applicant admitted he was at fault for missing the court date and avers that such an occurrence will never happen again. (Transcript at 19-20, 34-36.)

For Applicant

Traffic Offense Pattern

Dismissed or Nolle Prossed

Admitted

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

—

1.d

The Applicant’s next involvement with the police happened in October 2003 when, after a traffic stop, he was arrested for Driving on a Suspended License. The Applicant avers that he did not know his license was suspended for having too many driving infractions. However, the Applicant testified, “I went to Court and pled guilty to driving with a suspended license and I was given five days in jail, in which I served three and I did pay my fine.” (Transcript at 20-21, 36-37.)

For Applicant

Traffic Offense Pattern

Convicted

Admitted

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

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

—

1.e

On November 2, 2004, the Applicant was arrested and charged with Reckless Driving and Evading a Police Officer. He pled Guilty to the Reckless Driving Charge, for which he received a $761 fine and 36 months informal probation. The probation will expire in April 2008. The available evidence indicates that this incident was not as serious as the charges indicate. (Transcript at 21-25, 38-42.)

For Applicant

Traffic Offense Pattern

Convicted

Admitted

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

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

—

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Case Profile

Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

SYNOPSIS

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES