ISCR Case 08-06149.h1

Case Headnote

ISCR Case No. 08-06149.h1

deniedDec 15, 2009· Hon. Darlene Lokey Anderson· hearing

Summary

A 36-year-old engineer with a Bachelor’s Degree in Bioengineering was denied a security clearance due to extensive criminal conduct and personal conduct issues, specifically under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The judge determined that the applicant's history of misconduct raised serious doubts about his reliability and trustworthiness, which were not mitigated by evidence of rehabilitation or significant time elapsed since the offenses.

The applicant's history included a pattern of thefts and dishonesty. While employed at a movie theater in 1991, he stole six credit cards and used them for purchases, and on two occasions stole approximately $2,500 from a safe. He also stole about $40 weekly through various illegal activities and took $20 from a sponsored charity about ten times. Between 1985 and 1991, he engaged in petty shoplifting. From 1990 to 1993, he used false identification to purchase alcohol and verify purchases with stolen credit cards. Between 1994 and 2007, while working on a U.S. military installation, he stole numerous government-owned computer parts. Additionally, in 2005 and 2006, he won $6,800 and $4,000 respectively in poker tournaments but failed to report these winnings on his income tax returns. From 2003 to 2005, he downloaded numerous sexually explicit videos, some of which he believed depicted underage females.

The denial was based on the applicant's extensive criminal conduct, including theft and dishonesty, and a lack of candor during the security clearance process, where he retracted statements made during earlier interviews. The most recent misconduct occurred as recently as 2006, indicating a persistent pattern of behavior that raised security concerns.

Why the Applicant Was Denied

The applicant had an extensive history of criminal conduct, including theft and dishonesty.
The applicant demonstrated a lack of candor during the security clearance process, retracting statements made during interviews.
The applicant's most recent misconduct occurred as recently as 2006, indicating a pattern of behavior that raises security concerns.

Conditions Referenced

Disqualifying

J 31(a)raisedCriminal Conduct - a Single Serious Crime or Multiple Offenses
J 31(c)raisedCriminal Conduct - Allegation or Admission of Criminal Conduct
E 16(d)raisedPersonal Conduct - Credible Adverse Information

Mitigating

J 32(a)rejectedCriminal Conduct - Time Elapsed Since BehaviorThe applicant's criminal conduct demonstrates a pattern of misconduct that has continued over an extended period.
J 32(d)rejectedCriminal Conduct - Evidence of Successful RehabilitationThe applicant has not provided compelling evidence of rehabilitation.
E 17(c)rejectedPersonal Conduct - Minor Offense or Infrequent BehaviorThe offenses committed by the applicant are not minor and demonstrate serious unreliability.
E 17(d)rejectedPersonal Conduct - Acknowledgment and CounselingThe applicant has not received counseling or taken significant steps to change his behavior.
E 17(e)rejectedPersonal Conduct - Steps to Reduce VulnerabilityThe applicant has not demonstrated positive steps to mitigate his past behavior.

Key Rule Quoted

“The Government relies heavily upon the integrity and honesty of clearance holders.”

Procedural Posture

SOR issuedApr 14, 2009
Answer filedMay 4, 2009
Hearing heldAug 18, 2009
Decision dateDec 15, 2009

Cite For

Extensive Criminal History as a Disqualifying Factor Under Guideline J
Lack of Candor During the Security Clearance Process as a Disqualifying Factor Under Guideline E
The Importance of Integrity and Honesty for 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–2.c	3 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		—		—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a–2.c

3 sub-charges — specific text not stated in this decision (against the applicant).

Against Applicant

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The Applicant has an extensive history of criminal conduct and poor personal conduct, which includes a pattern of thefts and numerous other incidents of questionable judgment and dishonesty described below.	Against Applicant	Theft or Larceny	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.b	In 1991, the Applicant was employed at a movie theater. During the course of his employment, he and a coworker found different ways to steal from their employer. Over the course of a year, the Applicant stole six credit cards from wallets accidentally left by customers at the theater and illegally used the credit cards to make purchases.	Against Applicant	Theft or Larceny	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.c	While working at the movie theater, in 1991, the Applicant obtained the combination of one of the theater’s safes, and on two separate occasions stole approximately $2,500.00. Over a four to six month period in 1991, the Applicant also stole approximately $40.00 a week from his employer through various illegal activities such as 'short changing' the customer, changing ticket sales and over-charging concession stand items.	Against Applicant	Theft or Larceny	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.d	The Applicant also, about ten times, stole $20.00 from a sponsored charity, which were contributions donated by customers to the employer for the charity.	Against Applicant	Theft or Larceny	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.e	Between 1985 and 1991, while in junior high school and high school, the Applicant engaged in petty shoplifting of items such as candy, magazines, and comic books from liquor stores, drug stores and comic book stores.	Against Applicant	Theft or Larceny	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.f	From 1990 to 1993, the Applicant used false identification to purchase alcohol while underage, and on at least one occasion used the false identification to verify purchases he made with stolen credit cards.	Against Applicant	Fraud or Deception Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.g	In 1994-95, while in college and working as a student aide on a United States military installation, the Applicant noticed lots of excess computer equipment, that included mice, keyboards, old computer parts, and old computers. A report of the Applicant’s interview dated August 21, 2006, indicates that the Applicant stole numerous and various Government owned computer parts over a thirteen year period.	Against Applicant	Theft or Larceny	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.h	In the summer of 2005, while gambling at a casino, the Applicant won a significant amount of $6,800, in a poker tournament. He failed to claim or report the $6,800.00 of poker winnings on his 2005 income tax return. In early 2006, he again won a poker tournament and a significant amount of money. This time he won $4,000. Again, he failed to claim or report this $4,000.00 of poker winnings on his 2006 income tax return.	Against Applicant	Fraud or Deception Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.i	During the period from 2003 to 2005, the Applicant explained that he was accessing computer files on a peer to peer network at home. He downloaded numerous sexually explicit videos some of which were underaged females engaging in intercourse and fellatio.	Against Applicant	Sexual Offense Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.j	Applicant explained that he believed some of the females in the video were underaged because they did not appear fully developed or like other pornography he had seen in the past. Applicant suggested that the females in the videos might be between the ages of 13 and 18 and that the titles of some of the videos he downloaded were described as 'underaged'.	Against Applicant	Sexual Offense Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
2.a	The Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case under Guidelines J and E of the SOR.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
2.b	The totality of this evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
2.c	The Applicant has not been candid or upfront with the Government. Many of the facts that he provided the investigator during his earlier interviews, he retracted at the hearing, and now believes the investigator misunderstood.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

The Applicant has an extensive history of criminal conduct and poor personal conduct, which includes a pattern of thefts and numerous other incidents of questionable judgment and dishonesty described below.

Against Applicant

Theft or Larceny

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.b

In 1991, the Applicant was employed at a movie theater. During the course of his employment, he and a coworker found different ways to steal from their employer. Over the course of a year, the Applicant stole six credit cards from wallets accidentally left by customers at the theater and illegally used the credit cards to make purchases.

Against Applicant

Theft or Larceny

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.c

While working at the movie theater, in 1991, the Applicant obtained the combination of one of the theater’s safes, and on two separate occasions stole approximately $2,500.00. Over a four to six month period in 1991, the Applicant also stole approximately $40.00 a week from his employer through various illegal activities such as 'short changing' the customer, changing ticket sales and over-charging concession stand items.

Against Applicant

Theft or Larceny

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.d

The Applicant also, about ten times, stole $20.00 from a sponsored charity, which were contributions donated by customers to the employer for the charity.

Against Applicant

Theft or Larceny

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.e

Between 1985 and 1991, while in junior high school and high school, the Applicant engaged in petty shoplifting of items such as candy, magazines, and comic books from liquor stores, drug stores and comic book stores.

Against Applicant

Theft or Larceny

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.f

From 1990 to 1993, the Applicant used false identification to purchase alcohol while underage, and on at least one occasion used the false identification to verify purchases he made with stolen credit cards.

Against Applicant

Fraud or Deception Criminal

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.g

In 1994-95, while in college and working as a student aide on a United States military installation, the Applicant noticed lots of excess computer equipment, that included mice, keyboards, old computer parts, and old computers. A report of the Applicant’s interview dated August 21, 2006, indicates that the Applicant stole numerous and various Government owned computer parts over a thirteen year period.

Against Applicant

Theft or Larceny

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.h

In the summer of 2005, while gambling at a casino, the Applicant won a significant amount of $6,800, in a poker tournament. He failed to claim or report the $6,800.00 of poker winnings on his 2005 income tax return. In early 2006, he again won a poker tournament and a significant amount of money. This time he won $4,000. Again, he failed to claim or report this $4,000.00 of poker winnings on his 2006 income tax return.

Against Applicant

Fraud or Deception Criminal

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.i

During the period from 2003 to 2005, the Applicant explained that he was accessing computer files on a peer to peer network at home. He downloaded numerous sexually explicit videos some of which were underaged females engaging in intercourse and fellatio.

Against Applicant

Sexual Offense Criminal

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.j

Applicant explained that he believed some of the females in the video were underaged because they did not appear fully developed or like other pornography he had seen in the past. Applicant suggested that the females in the videos might be between the ages of 13 and 18 and that the titles of some of the videos he downloaded were described as 'underaged'.

Against Applicant

Sexual Offense Criminal

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

2.a

The Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case under Guidelines J and E of the SOR.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

2.b

The totality of this evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

2.c

The Applicant has not been candid or upfront with the Government. Many of the facts that he provided the investigator during his earlier interviews, he retracted at the hearing, and now believes the investigator misunderstood.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

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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

CONCLUSION

FORMAL FINDINGS

DECISION