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ISCR 15-07678.h1: Guideline J security clearance hearing, granted (2017) · CASE

ISCR Case 15-07678.h1granted

Case headnote

ISCR Case No. 15-07678.h1

grantedMar 22, 2017· Hon. Thomas M. Crean· hearing

Summary

A 30-year-old logistics supervisor was granted a security clearance despite a history of criminal conduct, specifically under Guideline J. The Statement of Reasons detailed two primary allegations: a March 2008 arrest for felony possession of marijuana with intent to distribute, which resulted in a guilty plea to a misdemeanor charge and 20 days in jail; and an August 2014 charge for domestic assault and battery on a family member, leading to a two-year deferred disposition and a protective order valid until September 2016.

Disqualifying conditions related to criminal conduct were raised, but the judge applied mitigating conditions, ultimately finding the applicant's past actions did not compromise his current reliability or trustworthiness. The decision to grant the clearance was based on several factors.

The applicant demonstrated successful rehabilitation by completing all court-ordered requirements and expressing remorse for his past conduct. A significant period without further criminal incidents indicated a positive change in behavior. Additionally, the applicant's current circumstances, including agreements regarding child custody and support, reflected increased maturity and responsibility.

Why the applicant prevailed

The applicant demonstrated successful rehabilitation by completing all court-ordered requirements and showing remorse for past conduct.
There was a significant period without further criminal incidents, indicating a change in behavior.
The applicant's current circumstances and agreements regarding child custody and support reflected maturity and responsibility.

Conditions referenced

Disqualifying

AG ¶ 31(a)raisedCriminal Conduct Disqualifying Condition
AG ¶ 31(c)raisedCriminal Conduct Disqualifying Condition

Mitigating

AG ¶ 32(a)appliedCriminal Conduct Mitigating Condition
AG ¶ 32(d)appliedCriminal Conduct Mitigating Condition

Key rule quoted

“The ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.”

Procedural posture

SOR issuedMay 9, 2016
Answer filedJun 2, 2016
Hearing heldFeb 7, 2017
Decision dateMar 22, 2017

Cite for

Successful Rehabilitation Under Guideline J
Consideration of the Whole-person Concept in Security Clearance Decisions
Impact of Time Elapsed Since Criminal Conduct on Security Clearance Eligibility

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 30: “Applicant is a 30-year-old high school graduate with approximately two years of college credits.”
Tenure: ~7 years: “Since January 2010, he has been employed by a defense contractor as a logistics supervisor.”
Held a clearance before: Yes: “He was granted eligibility for access to classified information in 2011 after submitting the September 19, 2011 e-QIP.”

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 eligibility for access to classified information, finding that the applicant mitigated the criminal conduct security concerns under Guideline J. The applicant admitted to both allegations of criminal conduct but demonstrated sufficient rehabilitation and time elapsed since the incidents to alleviate concerns about his reliability and trustworthiness.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 15-07678 ) ) ) Applicant for Security Clearance

For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se

03/22/2017 ______________

STATEMENT OF CASE

______________

CREAN, Thomas M., Administrative Judge:

Based on a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted. Applicant presented sufficient information to mitigate criminal conduct security concerns under Guideline J.

Statement of the Case

On September 19, 2011, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP) to obtain a security clearance required for a position with a defense contractor. The Department of Defense (DOD) could not make the affirmative findings required to issue a security clearance. On May 9, 2016, DOD issued a Statement of Reasons (SOR) to Applicant detailing security concerns for criminal conduct under Guideline J. These actions were 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). Applicant answered the SOR on June 2, 2016. He admitted both allegations of criminal conduct. Department Counsel was prepared to proceed on July 27, 2016, and I was assigned the case on October 19, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on January 18, 2017, for a hearing on February 7, 2017. I convened the hearing as scheduled. The Government offered three exhibits that I marked and admitted into the record without objection as Government exhibits (GX) 1 through 3. Applicant testified and offered three exhibits that I marked and admitted into the record without objection as Applicant Exhibits (AX) A through C. DOHA received the transcript of the hearing (Tr.) on February 16, 2017.

FINDINGS OF FACT

After a thorough review of the pleadings, transcript, and exhibits, I make the following findings of fact. Applicant’s admissions are included in my findings of fact. Applicant is a 30-year-old high school graduate with approximately two years of college credits. Since January 2010, he has been employed by a defense contractor as a logistics supervisor. He was granted eligibility for access to classified information in 2011 after submitting the September 19, 2011 e-QIP. He married in 2010, but has been separated from his wife since August 2014 pending a divorce. He has two children with his wife, and he has primary custody of a child from a previous relationship. He never served in the military. (Tr. 15-18; GX 1, e-QIP, dated September 19, 2011)

The SOR alleges Applicant was arrested and charged with the felony offense of possession of marijuana with intent to distribute in March 2008. He pled guilty to misdemeanor possession of marijuana with intent to distribute and served 20 days in jail (SOR 1.a). The SOR also alleges that Applicant was charged with domestic assault and battery on a family member in August 2014. He received a two year deferred disposition, and the court issued a protective order which was in place until September 2016. (SOR 1.b) Applicant admitted both offenses with a detailed explanation.

Applicant pled guilty to misdemeanor offense of possession of marijuana with intent to distribute because of the amount of marijuana and the way it was packaged. He had not sold and did not intent to sell the marijuana. He served 20 days in jail and placed on probation for three years. The offense was adjudicated in 2011 for security clearance implications and Applicant was granted a security clearance. There is no record of any other criminal incidents involving Applicant between that offense and the domestic assault offense in August 2014. (Tr. 17-22)

The local police were called to Applicant’s house in 2011 to settle a disagreement between Applicant and his wife involving childcare and custody issues. The police settled the dispute without taking any official action. In August 2014, Applicant and his wife were in the process of a bitter divorce. They argued over who would have custody of their children for a weekend. During the argument, Applicant’s wife slipped and fell suffering some bruising. As Applicant tried to move past her, she put her hand out and he knocked it aside. Applicant’s wife called the police, and Applicant was charged with domestic assault as required by the protocol of the local police department. Applicant received a deferred adjudication and probation that expired in October 2016. (Tr.22-26)

Applicant was required to take and complete a parenting class as part of the deferred adjudication and probation. Applicant complied with the order and completed the classes. Applicant has complied with all requirements imposed in 2014. (Tr. 26-38)

There is minimal contact between Applicant and his wife. However, Applicant and his wife agreed to child custody, visitation rights, and child support. (AX A, Agreed Custody and Visitation Order, dated December 2016; AX B, Child Support Order, dated January 31, 2017; AX C, Co-Parenting Form, dated January 6, 2017)

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 must be considered 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion for obtaining 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 the Applicant may deliberately or inadvertently fail to protect or protect classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

ANALYSIS

Criminal Conduct

Criminal activity creates doubt about a person’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 ¶ 30). Applicant’s arrest and conviction in 2008 for possession of marijuana with intent to distribute and his domestic assault conviction in 2014 raises security concerns and questions about Applicant’s judgment, reliability, trustworthiness, and his ability and willingness to comply with laws, rules, and regulations. The following Criminal Conduct Disqualifying Conditions under AG ¶ 31 are of concern:

(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.

Once a concern is raised regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. After the Government presents evidence raising criminal conduct security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. Applicant presented evidence that he is rehabilitated and his past criminal conduct is no longer a security concern.

I considered the following Criminal Conduct Mitigating Conditions under AG ¶ 32:

(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.

Mitigating condition AG ¶32 (a) and (d) applies. The conviction for misdemeanor possession with intent to distribute marijuana occurred almost ten years ago. There have been no other drug-related incidents. The incident was previously adjudication and Applicant was granted a security clearance. The domestic assault offense occurred over two years ago. It was an unfortunate minor incident with no physical injury involving a husband and wife quarrelling over child custody. There is evidence of successful rehabilitation. Applicant competed all court-ordered directions, including a court-ordered protective order for his wife without incident. He completed a co-parenting course and the period of his probation and deferred adjudication has expired. Applicant and his wife have reached an agreement on child custody and support.

While his past conduct was criminal, it does not affect his current reliability, trustworthiness, or good judgment. There is no "bright line" rule for determining when conduct is recent or sufficient time has passed since the incidents, to establish rehabilitation. A determination whether past conduct affects an individual's present reliability and trustworthiness must be based on a careful evaluation of the totality of the evidence. If the evidence shows a significant period of time has passed without evidence of a criminal issue, there must be an evaluation whether that period of time demonstrates changed circumstances or conduct sufficient to indicate a finding of reform or rehabilitation.

Applicant has not been involved with illegal drugs in almost ten years. There have been reported instances of illegal drug use. Applicant realizes how his conduct affects his family relationships and his employment with a defense contractor. He has matured and realizes how his conduct can affect his future. Applicant’s involvement with illegal drugs in unlikely to recur, and does not now cast doubt on his reliability, trustworthiness, and good judgment.

It has been over two years since the domestic assault conviction. Applicant demonstrated at the hearing a sincere remorsefulness for his conduct and a firm desire to mature and conduct himself appropriately. He completed all court-imposed requirements. His experiences have been his best teacher. He showed his maturity be reaching agreements on child support and custody.

WHOLE PERSON ANALYSIS

Under the whole-person concept, the administrative judge must evaluate an applicant’s security eligibility by considering the totality of the applicant’s conduct and the relevant circumstances. An 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 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 the facts and circumstances surrounding this case. I considered that Applicant was young and immature when he possessed marijuana. He completed all court-ordered conditions after his domestic assault conviction. Applicant presented adequate information to establish that sufficient time has passed after the incidents to show he has been rehabilitated. Applicant’s history shows that he is reliable and trustworthy and has the ability to protect classified information. The record evidence leaves me without questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated criminal conduct security concerns.

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: FOR APPLICANT

Subparagraphs 1.a – 1.b: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

_________________ THOMAS M. CREAN Administrative Judge