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ISCR Case 16-00116 — CASE

ISCR Case 16-00116denied

Case Headnote

ISCR Case No. 16-00116

deniedJun 16, 2017· Hon. Robert E. Coacher· hearing

Summary

A 29-year-old volunteer fireman was denied a security clearance due to concerns under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The applicant had a history of multiple arrests, including three for driving under the influence (DUI) in November 2008, February 2009, and December 2009. He was convicted for the November 2008 DUI, receiving 36 months of probation.

Further criminal conduct included a probation violation charge in April 2009, a guilty finding for driving on a suspended license in October 2009 with a 24-month probation sentence, and a guilty finding for corporal injury to a spouse in September 2011. The record did not contain dispositions for some of these charges or sentencing information for the corporal injury conviction.

The primary reason for denial stemmed from a material false statement made in June 2015 on a Declaration of Federal Employment form. When asked if he had been convicted, imprisoned, on probation, or on parole within the last seven years, the applicant answered "no," despite his probation status. While some criminal conduct concerns were mitigated, the failure to disclose his probation status on the federal employment form was deemed disqualifying, leading to the denial of his CAC eligibility.

Why the Applicant Prevailed

Applicant mitigated concerns related to criminal or dishonest conduct due to the recency and frequency of his offenses, which occurred when he was younger and have not recurred since 2011.

Conditions Referenced

Disqualifying

AG ¶ 3.bappliedMaterial, Intentional Falsification

Mitigating

AG ¶ 2.cappliedCircumstances Relevant to Criminal Conduct

Key Rule Quoted

“The overriding factor for all of these conditions is unacceptable risk.”

Procedural Posture

SOR issuedMar 21, 2016
Answer filedApr 4, 2016Applicant requested an administrative determination.
Hearing held—No hearing was held; decision made based on written submissions.
Decision dateJun 16, 2017

Cite For

Disqualifying Conditions Related to Material False Statements Under Guideline J
Mitigating Factors for Criminal Conduct Under Guideline D
Assessment of Unacceptable Risk in CAC Eligibility Determinations

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 D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant mitigated concerns related to criminal or dishonest conduct but failed to mitigate concerns regarding material false statements. As a result, the applicant's eligibility for a Common Access Card (CAC) was denied.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a–2.a	7 sub-charges — specific text not stated in this decision (1 against, 6 for the applicant).	Mixed			—	—	—

Descriptive standardized rendering of a decided public case (Guideline D). 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 that the applicant mitigated concerns related to criminal or dishonest conduct but failed to mitigate concerns regarding material false statements. Consequently, the applicant's request for CAC eligibility was denied.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In November 2008, Applicant was arrested for driving under the influence (DUI). He was convicted and his sentence included 36 months of probation.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	—	—	—
1.b	In February 2009, he was arrested for DUI. No disposition is contained in the record.	For Applicant	DUI or DWI Criminal	—	Unknown	—	—	—
1.c	In April 2009, he was charged with a probation violation. No disposition is contained in the record.	For Applicant	Probation or Court Order Violation	—	Unknown	—	—	—
1.d	In October 2009, he was charged with driving on a suspended license, a guilty finding was entered, and he was sentenced to 24 months’ probation.	For Applicant	Traffic Offense Pattern	Convicted	Admitted	—	—	—
1.e	In December 2009, he was arrested for DUI and a probation violation. No disposition is contained in the record.	For Applicant	DUI or DWI Criminal	—	Unknown	—	—	—
1.f	In September 2011, he was charged with corporal injury to a spouse. A guilty finding was entered, but no sentencing information is contained in the record.	For Applicant	Domestic Violence	Convicted	Unknown	—	—	—
2.a	In June 2015, Applicant completed a Declaration of Federal Employment form. Question number 9 of the form asked Applicant, 'During the last 7 years, have you been convicted, been imprisoned, been on probation, or been on parole? (Includes felonies, firearms or explosives violations, misdemeanors, and all other offenses)' Applicant answered 'no' to this question.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction	—	—

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: ) ) ) CAC Case No. 16-00116 ) Applicant for CAC Eligibility )

For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: Pro se

06/16/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant mitigated Common Access Card (CAC) credentialing concerns raised under the criminal or dishonest conduct supplemental adjudicative standards, but failed to mitigate the concerns raised under the material, false statement, deception, or fraud supplemental adjudication standards. CAC eligibility is denied.

Statement of the Case

On March 21, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing criminal or dishonest conduct eligibility concerns, and material, false statement, deception, or fraud eligibility concerns. The DOD was unable to find that it was clearly consistent with the national interest to grant Applicant CAC eligibility. The action was taken under Homeland Security Presidential Directive – 12 (HSPD-12); the Adjudicative Standards found in DOD Instruction (DODI) 5200.46, DOD Investigative and Adjudicative Guidelines for Issuing the CAC, dated September 9, 2014; and the procedures set out in Enclosure 3 of DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). Applicant responded to the SOR on April 4, 2016, and requested an administrative determination, in lieu of a hearing. Applicant was sent the government’s file of relevant material (FORM) on August 17, 2016. The evidence included in the FORM is identified as Items 4-7 (Items 1-3 include pleadings and transmittal information). Applicant received the FORM on August 25, 2016. He was given an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He did not submit a response to the FORM in the time allotted to do so. Items 4-7 are admitted in evidence without objection. The case was assigned to me on June 2, 2017.

FINDINGS OF FACT

Applicant is 29 years old. He has worked as a volunteer fireman since December 2005. He was married in 2011. No further information is available about his current marital status. The record contains no educational information for Applicant.1

In November 2008, Applicant was arrested for driving under the influence (DUI). He was convicted and his sentence included 36 months of probation. In February 2009, he was arrested for DUI. No disposition is contained in the record. In April 2009, he was charged with a probation violation. No disposition is contained in the record. In October 2009, he was charged with driving on a suspended license, a guilty finding was entered, and he was sentenced to 24 months’ probation. In December 2009, he was arrested for DUI and a probation violation. No disposition is contained in the record. In September 2011, he was charged with corporal injury to a spouse. A guilty finding was entered, but no sentencing information is contained in the record.2

In June 2015, Applicant completed a Declaration of Federal Employment form. Question number 9 of the form asked Applicant, “During the last 7 years, have you been convicted, been imprisoned, been on probation, or been on parole? (Includes felonies, firearms or explosives violations, misdemeanors, and all other offenses)” Applicant answered “no” to this question. In Applicant’s answer to the SOR, he admitted being on probation concerning SOR ¶¶ 1.a and 1.dand not putting that information down on the form. The record contains no additional arrest or conviction information after September 2011.3

POLICIES

Every CAC eligibility decision must be a fair and impartial overall commonsense decision based on all available evidence, both favorable and unfavorable. The specific issues raised are listed in DODI 5200.46, Enclosure 4, Appendix 1, Basic Adjudicative Standards, and Appendix 2, Supplemental Adjudicative Standards. The overriding factor for all of these conditions is unacceptable risk. The decision must be arrived at by applying the standard that the grant of CAC eligibility is clearly consistent with the national interest.

The objective of the CAC credentialing process is the fair-minded commonsense assessment of a person’s life to make an affirmative determination that the person is an acceptable risk to have CAC eligibility. Each case must be judged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis.

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 to obtain CAC eligibility.

Factors to be applied consistently to all information available include: (1) the nature and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the recency and frequency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) contributing external conditions; and (6) the absence or presence of efforts towards rehabilitation. (DODI 5200.46, Enclosure 4, ¶ 1) In all adjudications, the protection of the national interest is the paramount consideration. Therefore, any doubt concerning personnel being considered for CAC eligibility should be resolved in favor of the national interest.

ANALYSIS

Criminal or Dishonest Conduct

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2 provides:

A CAC will not be issued to a person if there is a reasonable basis to believe, based on the individual’s criminal or dishonest conduct, that issuance of a CAC poses an unacceptable risk.

a. An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk.

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2.blists several conditions that could raise a CAC concern and may be disqualifying. The following are potentially applicable in this case: (1) A single serious crime or multiple lesser offenses which put the safety of people at risk or threaten the protection of property or information. A person’s convictions for burglary may indicate that granting a CAC poses an unacceptable risk to the U.S. Government’s physical assets and to employees’ personal property on a U.S. Government facility;

(2) Charges or admission of criminal conduct relating to the safety of people and proper protection of property or information systems, regardless of whether the person was formally charged, formally prosecuted, or convicted; and

(5) Actions involving violence or sexual behavior of a criminal nature that poses an unacceptable risk if access is granted to federally-controlled facilities and federally-controlled information systems. For example, convictions for sexual assault may indicate that granting a CAC poses an unacceptable risk to the life and safety of persons on U.S. Government facilities.

Applicant’s criminal history is sufficient to establish all of the above disqualifying conditions.

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2.clists circumstances relevant to the determination of whether there is a reasonable basis to believe there is an unacceptable risk. The following may be relevant:

(1) The behavior happened so long ago, was minor in nature, or happened under such unusual circumstances that it is unlikely to recur.

Five of six of Applicant’s criminal events occurred when he was 20 or 21 years old. The most recent event occurred in 2011 and there is no evidence of recurrence since then. The above mitigating circumstance is established.

Material False Statements

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 3 provides:

A CAC will not be issued to a person if there is a reasonable basis to believe, based on the individual’s material, intentional, false statement, deception, or fraud in connection with federal or contract employment, that issuance of a CAC poses an unacceptable security risk.

3.a. The individual’s conduct involving questionable judgment, lack of candor, or unwillingness to comply with rules and regulations can raise questions about an individual’s honesty, reliability, trustworthiness, and put people, property, or information systems at risk. 3.b. Therefore, the conditions that may be disqualifying include material, intentional falsification, deception or fraud related to answers or information provided during the employment process for the current or a prior federal or contract employment (e.g. on the employment application or other employment, appointment or investigative documents, or during interviews).

3.c. Circumstances relevant to a determination of whether there is a reasonable basis to believe there is an unacceptable security risk include:

(1) The misstated or omitted information was so long ago, was minor, or happened under such unusual circumstances it is unlikely to recur.

(2) The misstatement or omission was unintentional or inadvertent and was followed by a prompt, good-faith effort to correct the situation.

Applicant’s failure to list his convictions that resulted in his probationary status was material information that was reasonably known to him at the time. His action qualifies as disqualifying under ¶ 3.b. Applicant did not present sufficient information to establish either mitigating circumstance listed in ¶ 3.c (1) or (2).

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, Criminal or Dishonest Conduct: For Applicant

Subparagraphs 1.a-1.f: For Applicant

Paragraph 2, Material False Statements: Against Applicant

Subparagraph 2.a: 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 CAC eligibility. CAC eligibility is denied.

_______________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 Items 4, 7 2 Items 6-7. 3 Items 3, 5.