ISCR Case 16-00429

Case Headnote

ISCR Case No. 16-00429

deniedMar 30, 2017· Hon. Arthur E. Marshall, Jr.· hearing

Summary

A 53-year-old defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a significant history of criminal offenses, including multiple DUIs and assault charges, which raised questions about his reliability and trustworthiness.

Specifically, the applicant had convictions for DUI in 1993, 2005 (with an escape charge), and again in 2005. He was also convicted of simple assault in 2009, and disorderly conduct in 2015, a lesser charge from an initial arrest for simple assault and harassment. Additionally, he was cited for two DUIs on the same day in June 2016, resulting in a conviction for one DUI and one charge of reckless driving. While he was arrested for contempt for violating a protective order in 2012, that case was dismissed.

The applicant also faced allegations of falsifying a Declaration for Federal Employment form (306) by denying current charges and past convictions. However, the adjudicator found his explanations for these omissions credible, mitigating some concerns related to false statements. Despite this, the extensive criminal history, particularly the repeated DUIs and assaults, led to the denial, as the applicant failed to demonstrate sufficient rehabilitation or a sustained period without further criminal conduct.

Why the Applicant Was Denied

The applicant's criminal history included multiple DUIs and assaults, raising concerns about reliability and trustworthiness.
The applicant failed to demonstrate sufficient rehabilitation or time without recurrence of criminal conduct.

Conditions Referenced

Disqualifying

E2.araisedA Single Serious Crime or Multiple Lesser Offenses Which Put the Safety of People at Risk or Threaten the Protection of Property or Information.
E2.braisedCharges or Admission of Criminal Conduct Relating to the Safety of People and Proper Protection of Property or Information Systems.
E2.eraisedActions 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.

Mitigating

E3.cappliedEvidence Has Been Supplied of Successful Rehabilitation, Including but Not Limited to Remorse or Restitution, Job Training or Higher Education, Good Employment Record, Constructive Community Involvement, or Passage of Time Without Recurrence.The applicant demonstrated genuine contrition and has a good work record.
E3.arejectedThe Behavior Happened so Long Ago, Was Minor in Nature, or Happened Under Such Unusual Circumstances That It Is Unlikely to Recur.
E3.brejectedThe Individual Has Acknowledged the Behavior and Has Taken Positive Steps to Mitigate the Risk.

Key Rule Quoted

“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.”
— DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2

Procedural Posture

SOR issuedApr 13, 2016
Answer filedApr 30, 2016
Hearing heldNov 16, 2016
Decision dateMar 30, 2017

Cite For

Denial of CAC Eligibility Due to a Pattern of Criminal Conduct Under Guideline E
Mitigation of False Statement Concerns Under Guideline J
Importance of Demonstrating Rehabilitation and Time Without Recurrence in Security Clearance Cases

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
1.a	Applicant was arrested, charged, and convicted of driving under the influence (DUI), a misdemeanor.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.b	Applicant was arrested, charged, and convicted of DUI and escape.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.c	Applicant was arrested, charged, and convicted of DUI and sentenced to confinement for two months and 28 days to six months.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.d	Applicant was arrested, charged, and convicted of simple assault and sentenced to probation.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.e	Applicant was arrested, charged, and convicted of contempt for violation of a protective order.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.f	Applicant was arrested, charged, and convicted of two counts of simple assault and harassment, but was ultimately convicted of a lesser charge, disorderly conduct.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.g	Applicant was cited for DUI twice in the same day in June 2016.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (e) personal conduct or concealment creating vulnerability to exploitation	—	—
2.a	Applicant signed a Declaration for Federal Employment form (306) and falsified material facts when he denied currently being under charges for any violations of the law.	For Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
2.b	Applicant denied having been convicted, imprisoned, on probation, or on parole in the preceding seven years.	For Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
2.c	Applicant did not mention the then-pending 2015 incident involving his lady friend and her son because he did not feel he was guilty.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Applicant was arrested, charged, and convicted of driving under the influence (DUI), a misdemeanor.

Against Applicant

Pattern of Dishonesty or Rule Violations

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(e) personal conduct or concealment creating vulnerability to exploitation

—

1.b

Applicant was arrested, charged, and convicted of DUI and escape.

Against Applicant

Pattern of Dishonesty or Rule Violations

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(e) personal conduct or concealment creating vulnerability to exploitation

—

1.c

Applicant was arrested, charged, and convicted of DUI and sentenced to confinement for two months and 28 days to six months.

Against Applicant

Pattern of Dishonesty or Rule Violations

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(e) personal conduct or concealment creating vulnerability to exploitation

—

1.d

Applicant was arrested, charged, and convicted of simple assault and sentenced to probation.

Against Applicant

Pattern of Dishonesty or Rule Violations

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(e) personal conduct or concealment creating vulnerability to exploitation

—

1.e

Applicant was arrested, charged, and convicted of contempt for violation of a protective order.

Against Applicant

Pattern of Dishonesty or Rule Violations

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(e) personal conduct or concealment creating vulnerability to exploitation

—

1.f

Applicant was arrested, charged, and convicted of two counts of simple assault and harassment, but was ultimately convicted of a lesser charge, disorderly conduct.

Against Applicant

Pattern of Dishonesty or Rule Violations

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(e) personal conduct or concealment creating vulnerability to exploitation

—

1.g

Applicant was cited for DUI twice in the same day in June 2016.

Against Applicant

Pattern of Dishonesty or Rule Violations

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(e) personal conduct or concealment creating vulnerability to exploitation

—

2.a

Applicant signed a Declaration for Federal Employment form (306) and falsified material facts when he denied currently being under charges for any violations of the law.

For Applicant

Falsification Security FormFOUND DELIBERATE

Criminal Conduct

Denied

—

2.b

Applicant denied having been convicted, imprisoned, on probation, or on parole in the preceding seven years.

For Applicant

Falsification Security FormFOUND DELIBERATE

Criminal Conduct

Denied

—

2.c

Applicant did not mention the then-pending 2015 incident involving his lady friend and her son because he did not feel he was guilty.

For Applicant

Falsification Security FormNOT DELIBERATE

Criminal Conduct

Denied

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In 1993, Applicant was arrested, charged, and convicted of driving under the influence (DUI), a misdemeanor. He was sentenced to confinement for a period of one to 23 months. He believes he served about one month in prison.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
1.b	In 2005, he was arrested, charged, and convicted of DUI and escape. He was sentenced to confinement for a period of five months to five years, and to probation for two years.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
1.c	About three months later, he was arrested, charged, and convicted of DUI, and sentenced to confinement for two months and 28 days to six months.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
1.d	In around August 2009, Applicant was arrested, charged, and convicted of simple assault, a misdemeanor, and sentenced to probation for a period of 28 days to one year and 11 months. He served three months in jail.	Against Applicant	Assault or Battery	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
1.e	While he admits that around January 2012 he was arrested and charged with contempt for violation of a protective order, a misdemeanor, Applicant asserts the case was dismissed.	Against Applicant	Domestic Violence	Dismissed or Nolle Prossed	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
1.f	Applicant also admits that in about February 2015, he was arrested and charged with two counts of simple assault and harassment, a misdemeanor, but that he was ultimately convicted of a lesser charge, disorderly conduct.	Against Applicant	Assault or Battery	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
1.g	In addition, although not alleged in the SOR as it occurred after the SOR was issued, Applicant was cited for DUI twice in the same day in June 2016. He was ultimately convicted of one DUI offense and one charge of reckless driving.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
2.a	Applicant admits that he did not list that he was arrested and charged with contempt for violating a protective order because, to his thinking, the ultimate dismissal of the case obviated the need to report the arrest and charge.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	—	—	—
2.b	In addition, Applicant admits that he did not list that he was arrested and charged with two counts of simple assault and harassment in 2015 because the case was still pending.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	—	—	—
2.c	To date, Applicant still seems confused by the issue. Given his overall testimony, education, experience, and consistent statements, I find his explanation credible.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In 1993, Applicant was arrested, charged, and convicted of driving under the influence (DUI), a misdemeanor. He was sentenced to confinement for a period of one to 23 months. He believes he served about one month in prison.

Against Applicant

DUI or DWI Criminal

Convicted

Denied

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

(b) evidence of criminal conduct, regardless of charge or conviction

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

1.b

In 2005, he was arrested, charged, and convicted of DUI and escape. He was sentenced to confinement for a period of five months to five years, and to probation for two years.

Against Applicant

DUI or DWI Criminal

Convicted

Denied

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

(b) evidence of criminal conduct, regardless of charge or conviction

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

1.c

About three months later, he was arrested, charged, and convicted of DUI, and sentenced to confinement for two months and 28 days to six months.

Against Applicant

DUI or DWI Criminal

Convicted

Denied

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

(b) evidence of criminal conduct, regardless of charge or conviction

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

1.d

In around August 2009, Applicant was arrested, charged, and convicted of simple assault, a misdemeanor, and sentenced to probation for a period of 28 days to one year and 11 months. He served three months in jail.

Against Applicant

Assault or Battery

Convicted

Denied

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

(b) evidence of criminal conduct, regardless of charge or conviction

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

1.e

While he admits that around January 2012 he was arrested and charged with contempt for violation of a protective order, a misdemeanor, Applicant asserts the case was dismissed.

Against Applicant

Domestic Violence

Dismissed or Nolle Prossed

Denied

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

(b) evidence of criminal conduct, regardless of charge or conviction

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

1.f

Applicant also admits that in about February 2015, he was arrested and charged with two counts of simple assault and harassment, a misdemeanor, but that he was ultimately convicted of a lesser charge, disorderly conduct.

Against Applicant

Assault or Battery

Convicted

Denied

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

(b) evidence of criminal conduct, regardless of charge or conviction

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

1.g

In addition, although not alleged in the SOR as it occurred after the SOR was issued, Applicant was cited for DUI twice in the same day in June 2016. He was ultimately convicted of one DUI offense and one charge of reckless driving.

Against Applicant

DUI or DWI Criminal

Convicted

Denied

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

(b) evidence of criminal conduct, regardless of charge or conviction

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

2.a

Applicant admits that he did not list that he was arrested and charged with contempt for violating a protective order because, to his thinking, the ultimate dismissal of the case obviated the need to report the arrest and charge.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Admitted

—

2.b

In addition, Applicant admits that he did not list that he was arrested and charged with two counts of simple assault and harassment in 2015 because the case was still pending.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Admitted

—

2.c

To date, Applicant still seems confused by the issue. Given his overall testimony, education, experience, and consistent statements, I find his explanation credible.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Admitted

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

ANALYSIS

FORMAL FINDINGS

CONCLUSION