ISCR Case 07-18352.h1

Case Headnote

ISCR Case No. 07-18352.h1

deniedJun 22, 2010· Hon. Robert J. Tuidar· hearing

Summary

A 40-year-old engineer technician was denied a security clearance under Guidelines E (Personal Conduct) and J (Criminal Conduct) due to an extensive criminal history. This history included a 1988 conviction for DUI and public intoxication, resulting in a fine and probation, which he satisfied through a work furlough program. In 1990, he was convicted of involuntary manslaughter following an altercation in 1989, serving two years and two months of a four-year prison sentence and receiving a $5,000 fine.

While on parole in 1992, he received a second DUI conviction. In 1993, he was convicted of receiving stolen property after a no contest plea, serving approximately nine months in jail and receiving a parole violation. His criminal conduct continued in 1995 with convictions for evading a police officer and a third DUI, for which he served 365 days in jail and completed four years of probation in 2000. Additionally, he was terminated from employment in March 2007 for unsatisfactory performance.

Despite demonstrating some rehabilitation and a positive employment record, the applicant's repeated criminal conduct, particularly the involuntary manslaughter conviction, raised unresolved doubts about his reliability and trustworthiness. The decision concluded that the applicant failed to demonstrate that his past criminal behavior was unlikely to recur, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant's extensive criminal history included multiple arrests and a conviction for involuntary manslaughter, raising significant concerns about his judgment and reliability.
The applicant failed to demonstrate that his past criminal behavior was unlikely to recur, which is essential for mitigating security concerns under Guideline J.
Despite some evidence of rehabilitation, the applicant's criminal conduct was deemed too serious and repetitive to overcome the doubts regarding his trustworthiness.

Conditions Referenced

Disqualifying

J.30raisedCriminal Conduct
J.31(a)raisedA Single Serious Crime or Multiple Lesser Offenses

Mitigating

J.32(a)rejectedTime Elapsed Since Criminal BehaviorThe applicant's criminal history spanned a seven-year period and included serious offenses.
J.32(d)rejectedEvidence of Successful RehabilitationWhile there was evidence of some rehabilitation, the severity and frequency of past offenses raised doubts about the applicant's reliability.
E.15appliedPersonal ConductThe applicant's termination from previous employment for unsatisfactory performance was considered.
E.17(c)rejectedMinor Offense or Time PassedThe applicant's offenses were not minor and did not occur under unique circumstances.
E.17(e)appliedPositive Steps to Reduce VulnerabilityThe applicant's recent employment and community involvement were noted as positive steps.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedMay 11, 2009
Answer filedJun 10, 2009
Hearing heldNov 17, 2009
Decision dateJun 22, 2010

Cite For

Evaluation of Criminal Conduct Under Guideline J
Consideration of Personal Conduct Under Guideline E
Impact of Serious Criminal History 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.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant was terminated from his employment in March 2007 for unsatisfactory performance.	For Applicant	Rules Violation at Workplace	—	Admitted	—	(c) offense is minor, long ago, infrequent, or unique circumstances (e) positive steps to reduce vulnerability to exploitation	Claimed Other

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant was terminated from his employment in March 2007 for unsatisfactory performance.

For Applicant

Rules Violation at Workplace

—

Admitted

—

(c) offense is minor, long ago, infrequent, or unique circumstances

(e) positive steps to reduce vulnerability to exploitation

Claimed

Other

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In 1988, he was convicted of driving under the influence (DUI) and public intoxication and was sentenced to a $1,200 fine and three years probation. A condition of his probation was to abstain from consuming alcohol. He was unable to pay the fine, which he satisfied by participating in a work furlough program.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	In December 1989, Applicant was arrested and charged with murder and accessory to a felony. Applicant, who had been drinking, was involved in an altercation with the former husband of his then girlfriend. Applicant and several friends brutally beat this individual and someone in the group stabbed him resulting in his death. The authorities were unable to determine who did the actual stabbing. Pursuant to Applicant’s guilty plea in March 1990, he was convicted of involuntary manslaughter and sentenced to four years in prison and a $5,000 fine. He was released from prison in 1992 after serving two years and two months, and placed on parole for four years.	Against Applicant	Homicide	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.c	In 1992, after being released from prison and while on parole, Applicant was convicted of his second DUI. He was sentenced to probation. Applicant testified he took this arrest seriously because he “needed to clean up [his] act and stop drinking” because he did not want to go back to prison. He stopped drinking and driving “[a] couple of years” and attended Alcoholics Anonymous meetings “maybe six months to a year.” He began drinking again in 1993.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.d	In 1993, Applicant was arrested for vehicle theft and receiving stolen property. Pursuant to his no contest plea, he was convicted of receiving stolen property and sentenced to 365 days in jail and probation. He testified that he subsequently learned after his friend was speeding and involved in an accident that he was driving a stolen car. Applicant served “about nine months” in jail and was told to “continue on [his] parole.” He added, “I did get a parole violation for that (receiving stolen property) also which I received a year of parole violation time which ran concurrent with [his] year in the county jail, so they ran concurrent.” He admitted to being intoxicated at the time he was arrested.	Against Applicant	Theft or Larceny	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.e	In 1995, Applicant was arrested for evading a police officer, resisting arrest, DUI, and driving on a suspended license. Applicant testified that he had been driving on a suspended license since 1992. Also at the time of this DUI arrest, he had used methamphetamine, discussed supra. Applicant was still on parole at the time he was arrested for DUI. Also, at the time of this arrest, the police found marijuana and a handgun in the car. Applicant testified that the handgun belonged to his friend and the marijuana belonged to him. Pursuant to his plea, he was convicted of evading a police officer and DUI. He was sentenced to 365 days in jail and four years probation. He completed his four-year probation sentence in 2000.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In 1988, he was convicted of driving under the influence (DUI) and public intoxication and was sentenced to a $1,200 fine and three years probation. A condition of his probation was to abstain from consuming alcohol. He was unable to pay the fine, which he satisfied by participating in a work furlough program.

Against Applicant

DUI or DWI Criminal

Convicted

Admitted

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

—

1.b

In December 1989, Applicant was arrested and charged with murder and accessory to a felony. Applicant, who had been drinking, was involved in an altercation with the former husband of his then girlfriend. Applicant and several friends brutally beat this individual and someone in the group stabbed him resulting in his death. The authorities were unable to determine who did the actual stabbing. Pursuant to Applicant’s guilty plea in March 1990, he was convicted of involuntary manslaughter and sentenced to four years in prison and a $5,000 fine. He was released from prison in 1992 after serving two years and two months, and placed on parole for four years.

Against Applicant

Homicide

Convicted

Admitted

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

—

1.c

In 1992, after being released from prison and while on parole, Applicant was convicted of his second DUI. He was sentenced to probation. Applicant testified he took this arrest seriously because he “needed to clean up [his] act and stop drinking” because he did not want to go back to prison. He stopped drinking and driving “[a] couple of years” and attended Alcoholics Anonymous meetings “maybe six months to a year.” He began drinking again in 1993.

Against Applicant

DUI or DWI Criminal

Convicted

Admitted

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

—

1.d

In 1993, Applicant was arrested for vehicle theft and receiving stolen property. Pursuant to his no contest plea, he was convicted of receiving stolen property and sentenced to 365 days in jail and probation. He testified that he subsequently learned after his friend was speeding and involved in an accident that he was driving a stolen car. Applicant served “about nine months” in jail and was told to “continue on [his] parole.” He added, “I did get a parole violation for that (receiving stolen property) also which I received a year of parole violation time which ran concurrent with [his] year in the county jail, so they ran concurrent.” He admitted to being intoxicated at the time he was arrested.

Against Applicant

Theft or Larceny

Convicted

Admitted

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

—

1.e

In 1995, Applicant was arrested for evading a police officer, resisting arrest, DUI, and driving on a suspended license. Applicant testified that he had been driving on a suspended license since 1992. Also at the time of this DUI arrest, he had used methamphetamine, discussed supra. Applicant was still on parole at the time he was arrested for DUI. Also, at the time of this arrest, the police found marijuana and a handgun in the car. Applicant testified that the handgun belonged to his friend and the marijuana belonged to him. Pursuant to his plea, he was convicted of evading a police officer and DUI. He was sentenced to 365 days in jail and four years probation. He completed his four-year probation sentence in 2000.

Against Applicant

DUI or DWI Criminal

Convicted

Admitted

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

—

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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

WHOLE PERSON CONCEPT

FORMAL FINDINGS

CONCLUSION

FOOTNOTES