ISCR Case 16-00307.h1

Case Headnote

ISCR Case No. 16-00307.h1

grantedNov 7, 2016· Hon. LeRoy F. Foreman· hearing

Summary

A 55-year-old production foreman at a defense contractor was granted a security clearance despite concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant had an extensive criminal record, including multiple DUI convictions and incidents of domestic assault.

Specific allegations included a May 2015 misdemeanor assault on a family member, an October 2007 misdemeanor assault on a family member, and a May 2001 DUI (3rd offense) for which he received a suspended jail sentence and a fine. Other incidents included an August 1997 felony obstruction of justice charge that was later dismissed, a June 1995 DUI (2nd offense) conviction resulting in a fine, suspended jail time, probation, and alcohol education, and a May 1993 misdemeanor marijuana possession charge that was dismissed. Additionally, a February 1993 incident led to a misdemeanor assault conviction, and a July 1985 DUI conviction resulted in a fine and suspended jail sentence.

The judge found that the applicant had successfully mitigated these concerns. Key factors included a significant passage of time without further criminal incidents since 2004, evidence of successful rehabilitation through Alcoholics Anonymous and counseling until 2007, and strong character references from colleagues, which supported his reliability and trustworthiness.

Why the Applicant Prevailed

The applicant demonstrated a significant passage of time without further criminal incidents since 2004.
The applicant provided evidence of successful rehabilitation, including attendance at Alcoholics Anonymous and counseling until 2007.
The applicant's strong employment record and positive character references supported his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 31(a)raisedCriminal Conduct - Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)raisedCriminal Conduct - Allegation or Admission of Criminal Conduct
AG ¶ 22(a)raisedAlcohol Consumption - Alcohol-related Incidents Away From Work

Mitigating

AG ¶ 32(a)appliedCriminal Conduct - Time Elapsed Since Criminal Behavior
AG ¶ 32(d)appliedCriminal Conduct - Evidence of Successful Rehabilitation
AG ¶ 23(a)appliedAlcohol Consumption - Time Passed or Unusual Circumstances

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG.”

Procedural Posture

SOR issuedJun 9, 2016
Answer filedJul 1, 2016
Hearing heldSep 27, 2016
Decision dateNov 7, 2016

Cite For

Mitigation of Criminal Conduct Due to Time Elapsed and Rehabilitation Under Guideline J
Mitigation of Alcohol Consumption Concerns Under Guideline G Due to Absence of Incidents and Rehabilitation
Whole-person Analysis 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	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	The applicant has a history of alcohol-related incidents, including multiple DUI convictions.	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	(a) so much time has passed / so infrequent that it is unlikely to recur	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

2.a

The applicant has a history of alcohol-related incidents, including multiple DUI convictions.

For Applicant

DUI or DWI Alcohol

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

(a) so much time has passed / so infrequent that it is unlikely to recur

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In May 2015, Applicant was again charged with misdemeanor assault on a family member. This incident arose when Applicant’s wife and his stepdaughter returned home after a concert. Both were intoxicated, and Applicant asked his wife who had driven, because he knew his stepdaughter did not have a driver’s license. His stepdaughter interrupted the conversation between Applicant and his wife, and Applicant asked her to leave. His stepdaughter began screaming and trying to hit Applicant. He retreated to another part of the house and called the police. His stepdaughter followed him and continued to punch and slap him. Applicant’s seven-year-old daughter attempted to intervene, and his stepdaughter pushed her away and knocked her to the ground. Applicant grabbed his stepdaughter and began to drag her out of the house. He let her go when she promised to leave peacefully, but she then threw a toy baby stroller at him and attempted to strike him again. He picked her up in a bear hug and dragged her out the door. She began to walk away as the police arrived. (GX 2 at 4; Tr. 36-38.)	For Applicant	Assault or Battery	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses
1.b	In October 2007, Applicant was charged with misdemeanor assault on a family member. The incident occurred when Applicant wanted to put his daughter, then one month old, in a bassinet to sleep. His 29-year-old stepdaughter (then 21 years old) insisted sleeping in bed with the baby. His stepdaughter was holding the baby tightly in her arms and refused to let Applicant take the baby. After a scuffle and some argument, his stepdaughter relinquished the baby. Applicant then picked up his stepdaughter in a bear hug and removed her from the home, with the stepdaughter punching and scratching him as she was being ejected. The police arrived as Applicant was ejecting her. (GX 2 at 11-12; Tr. 35-36.)	For Applicant	Assault or Battery	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses
1.c	In May 2001, Applicant was charged with DUI (3rd offense) and refusal to submit to a breath-alcohol test. He was sentenced to 12 months in jail (suspended) and a fine for the DUI. A nolle prosequi was entered for the breath-alcohol test refusal. (GX 3 at 2; GX 4 at 3.)	For Applicant	DUI or DWI Criminal	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses
1.d	In August 1997, Applicant was arrested for felony obstruction of justice, after he refused to answer the door for police who wanted to serve a warrant on a guest in his house. (Tr. 52.) A nolle prosequi was entered. (GX 3 at 2; GX 4 at 3.)	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses
1.e	In June 1995, Applicant was arrested for DUI (2nd offense). He was convicted, fined $1,000 ($750 suspended), sentenced to 12 months in jail (all but four days suspended), placed on unsupervised probation for three years, and required to attend alcohol education classes. (GX 1 at 28; GX 4 at 2.)	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses
1.f	In May 1993, Applicant was arrested for misdemeanor possession of marijuana. The charges were dismissed.	For Applicant	Drug Related Criminal Charge	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses
1.g	In February 1993, Applicant was arrested for misdemeanor domestic assault, destroying private property, and misdemeanor assault. The domestic assault and destruction of property charges were dismissed, and he was convicted of the misdemeanor assault. (GX 3.) The charges arose from mutual fistfight between Applicant and his estranged wife’s boyfriend. (GX 4 at 2; Tr. 44.)	For Applicant	Assault or Battery	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses
1.h	In July 1985, Applicant was convicted of driving under the influence (DUI). He was fined and given a suspended jail sentence.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In May 2015, Applicant was again charged with misdemeanor assault on a family member. This incident arose when Applicant’s wife and his stepdaughter returned home after a concert. Both were intoxicated, and Applicant asked his wife who had driven, because he knew his stepdaughter did not have a driver’s license. His stepdaughter interrupted the conversation between Applicant and his wife, and Applicant asked her to leave. His stepdaughter began screaming and trying to hit Applicant. He retreated to another part of the house and called the police. His stepdaughter followed him and continued to punch and slap him. Applicant’s seven-year-old daughter attempted to intervene, and his stepdaughter pushed her away and knocked her to the ground. Applicant grabbed his stepdaughter and began to drag her out of the house. He let her go when she promised to leave peacefully, but she then threw a toy baby stroller at him and attempted to strike him again. He picked her up in a bear hug and dragged her out the door. She began to walk away as the police arrived. (GX 2 at 4; Tr. 36-38.)

For Applicant

Assault or Battery

Charged Not Convicted

Admitted

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

(c) currently on parole or probation

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

1.b

In October 2007, Applicant was charged with misdemeanor assault on a family member. The incident occurred when Applicant wanted to put his daughter, then one month old, in a bassinet to sleep. His 29-year-old stepdaughter (then 21 years old) insisted sleeping in bed with the baby. His stepdaughter was holding the baby tightly in her arms and refused to let Applicant take the baby. After a scuffle and some argument, his stepdaughter relinquished the baby. Applicant then picked up his stepdaughter in a bear hug and removed her from the home, with the stepdaughter punching and scratching him as she was being ejected. The police arrived as Applicant was ejecting her. (GX 2 at 11-12; Tr. 35-36.)

For Applicant

Assault or Battery

Charged Not Convicted

Admitted

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

(c) currently on parole or probation

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

1.c

In May 2001, Applicant was charged with DUI (3rd offense) and refusal to submit to a breath-alcohol test. He was sentenced to 12 months in jail (suspended) and a fine for the DUI. A nolle prosequi was entered for the breath-alcohol test refusal. (GX 3 at 2; GX 4 at 3.)

For Applicant

DUI or DWI Criminal

Charged Not Convicted

Admitted

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

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

1.d

In August 1997, Applicant was arrested for felony obstruction of justice, after he refused to answer the door for police who wanted to serve a warrant on a guest in his house. (Tr. 52.) A nolle prosequi was entered. (GX 3 at 2; GX 4 at 3.)

For Applicant

Unspecified Criminal Conduct

Dismissed or Nolle Prossed

Admitted

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

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

1.e

In June 1995, Applicant was arrested for DUI (2nd offense). He was convicted, fined $1,000 ($750 suspended), sentenced to 12 months in jail (all but four days suspended), placed on unsupervised probation for three years, and required to attend alcohol education classes. (GX 1 at 28; GX 4 at 2.)

For Applicant

DUI or DWI Criminal

Convicted

Admitted

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

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

1.f

In May 1993, Applicant was arrested for misdemeanor possession of marijuana. The charges were dismissed.

For Applicant

Drug Related Criminal Charge

Dismissed or Nolle Prossed

Admitted

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

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

1.g

In February 1993, Applicant was arrested for misdemeanor domestic assault, destroying private property, and misdemeanor assault. The domestic assault and destruction of property charges were dismissed, and he was convicted of the misdemeanor assault. (GX 3.) The charges arose from mutual fistfight between Applicant and his estranged wife’s boyfriend. (GX 4 at 2; Tr. 44.)

For Applicant

Assault or Battery

Convicted

Admitted

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

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

1.h

In July 1985, Applicant was convicted of driving under the influence (DUI). He was fined and given a suspended jail sentence.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

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

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

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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

APPEARANCES

STATEMENT OF CASE

POLICIES

ANALYSIS

WHOLE PERSON CONCEPT

FORMAL FINDINGS

CONCLUSION

FOOTNOTES