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ISCR 08-08831.h1: Guideline E security clearance hearing, granted, reversed on appeal (2010) · CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date8/30/2010
StatusgrantedReversed on appeal
LevelHEARING
TypeSTANDARD ISCR
Reversed on appeal — clearance denied
The judge granted eligibility below, but the DOHA Appeal Board reversed that decision. The applicant did not keep the clearance. The Appeal Board decided on 1/4/2011.
Read the appeal decision →
Related decisionSee the appeal decision (Case 08-08831.a1) →
From the decisionFacts this decision states. Hover a value to see the exact sentence.
Age at decision32
Tenure~3 years
Held a clearance beforeNo
Participants
Judge: John Grattan Metz, Jr.
Applicant Representation: Pro Se
Guidelines Evaluated
- EPersonal Conduct · For Applicant
- JCriminal Conduct · For Applicant
Other decisions whose allegations most closely resemble this one’s. Similarity of the allegations only.
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ISCR Case 08-08831.h1grantedReversed on appeal

Case headnote

ISCR Case No. 08-08831.h1

grantedReversed on appealAug 30, 2010· Hon. John Grattan Metz, Jr.· hearing

Summary

A 32-year-old technical coordinator for a defense contractor was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons cited multiple arrests from 1993 to 1994 for malicious mischief, reckless endangerment, theft, and burglary. Additionally, the applicant had outstanding arrest warrants from 1995 for alleged theft and from 1996 for alleged forgery.

The judge applied disqualifying conditions AG ¶ 31(a) and AG ¶ 31(c). However, mitigating conditions AG ¶ 32(a) and AG ¶ 32(d) were also applied. The decision to grant the clearance was based on several factors. The applicant demonstrated successful rehabilitation through consistent employment and community involvement.

Crucially, the most recent criminal conduct occurred over 14 years prior to the decision, with no subsequent criminal activity. Furthermore, the applicant was unaware of the outstanding warrants and was actively taking steps to resolve them.

Why the applicant prevailed

The applicant demonstrated successful rehabilitation through steady employment and community involvement.
The most recent criminal conduct occurred over 14 years ago, and there has been no further criminal activity since then.
The applicant was unaware of the outstanding warrants and was taking steps to resolve them.

Conditions referenced

Disqualifying

AG ¶ 31(a)raisedCriminal Conduct
AG ¶ 31(c)raisedCriminal Conduct

Mitigating

AG ¶ 32(a)appliedCriminal Conduct
AG ¶ 32(d)appliedCriminal Conduct

Key rule quoted

“The presence or absence of a disqualifying or mitigating condition is not determinative for or against applicant.”

Procedural posture

SOR issuedJan 8, 2010
Answer filed—
Hearing held—Applicant requested a decision without hearing.
Decision dateAug 30, 2010

Cite for

Successful Rehabilitation Under Guideline J
Mitigation of Criminal Conduct Due to Time Elapsed
Consideration of Personal Circumstances in Resolving Outstanding Warrants

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 32: “He is a 32-year-old technical coordinator employed by a defense contractor since September 2007.”
Tenure: ~3 years: “He is a 32-year-old technical coordinator employed by a defense contractor since September 2007.”
Held a clearance before: No: “He has not previously held a security clearance.”

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found no security concerns under Guideline E related to the applicant's personal conduct. The allegations of falsification and failure to disclose were mitigated by the applicant's lack of awareness of the outstanding warrants. The applicant's overall conduct and efforts to resolve past issues were viewed favorably, leading to a decision for the applicant.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant had a history of criminal conduct, including arrests for malicious mischief, reckless endangerment, theft, and burglary, but ruled in favor of the applicant under Guideline J. The applicant demonstrated significant rehabilitation and a long period without further criminal conduct, leading to the decision to grant the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. 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: ) ) ) ISCR Case No. 08-08831 SSN: ) ) Applicant for Security Clearance )

For Government: D. Michael Lyles, Esquire, Department Counsel For Applicant: Pro se

August 30, 2010 ______________

STATEMENT OF CASE

______________

METZ, John Grattan, Jr., Administrative Judge:

On 8 January 2010 the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant stating security concerns under Guidelines J (Criminal Conduct) and E (Personal Conduct). Applicant timely answered and requested a decision without hearing. DOHA assigned the case to me 28 April 2010. The case record closed 22 April 2010, when Department Counsel gave no objection to Applicant’s response to the Government’s File of Relevant Material (FORM, Items 1-9).

FINDINGS OF FACT

Applicant admitted a June 1993 arrest for malicious mischief and reckless endangerment (SOR 1.c) and a February 1994 arrest for theft and burglary (SOR 1.a and 1.b). He denied the remainder of the SOR allegations. Accordingly, I incorporate his admissions as findings of fact. He is a 32-year-old technical coordinator employed by a defense contractor since September 2007. He has not previously held a security clearance.

Applicant grew up on the west coast, but has lived on the east coast since at least September 1999. He has been married for 10 years. He and his wife have two children together, and she has two teenagers from an earlier relationship. Applicant got his college degree in February 2008.

As a teenager, Applicant hung out with the wrong crowd. In June 1993, he was arrested (along with two other friends and several combatants) for malicious mischief and reckless endangerment for violating the city curfew for minors and getting into a fight. He went to court and paid a fine without appearing before a judge.

In February 1994, Applicant and two friends got the admittedly-ludicrous idea to break into an office building and steal something. The owner of the building was still there, and he caught Applicant; the two friends got away. Applicant was charged with burglary and theft. He was tried in juvenile court, pled guilty, and was sentenced to 24 months community supervision, 50 days detention, and fined. Applicant completed his sentence without incident, and the case files were closed in May 1998.

After his February 1994 arrest, Applicant started taking additional classes at an on-line high school, while still attending his regular school, so he could accelerate his graduation date to graduate before he had to serve his detention. He graduated from high school in June 1994, and served his detention the remainder of that summer.

In February 1996, a warrant was issued for Applicant’s arrest on charges that he stole tools from a hardware store by trick in June 1995 (Item 8). The probable cause affidavit was signed by the county prosecutor based on a 1995 police report that is not in evidence. Applicant contends, and the Government’s documents tend to confirm, the warrant was never served on him, despite the fact that he lived in the same town for at least a year after the alleged theft and his mother was a deputy sheriff in the county where he lived.

In September 1996, a warrant was issued for Applicant’s arrest for failure to appear (Item 9) on charges alleged to be forgery. However, the only evidence that the charge was forgery is a hand-written notation on the face of the warrant. There is no documentation that Applicant was ever served a notice to appear on the underlying charge. The warrant itself was not served on Applicant, and Applicant further denies having been served the underlying notice to appear and warrant.

Applicant’s response to the FORM documents that he paid the fees associated with the February 1994 arrest, and received several certificates recognizing his community service and volunteer work—including certificates issued by the county sheriff in the county where the warrants were issued commending him for his work in the department’s emergency management division. He also provided two work references praising the quality of his work and his trustworthiness.

Applicant began researching the outstanding warrants when he became aware of them in July 2008. He contacted several lawyers in his hometown, and received minimum quotes of $15,000 to retain counsel on the charges because of their age. Applicant began saving money to pay the lawyer’s fees, but had unexpected surgery that consumed the money he had saved. He understands that he must eventually resolve the warrants.

POLICIES

The adjudicative guidelines (AG) list factors to be considered in evaluating an Applicant’s suitability for access to classified information. Administrative judges must assess both disqualifying and mitigating conditions under each issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in AG ¶ 2(a). The presence or absence of a disqualifying or mitigating condition is not determinative for or against applicant. However, specific adjudicative guidelines should be followed where a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant adjudicative guidelines are Guideline J (Criminal Conduct) and Guideline E (Personal Conduct).

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, it establishes a valid case against access to classified information. Applicant must then refute, extenuate, or mitigate the Government’s case. Because no one has a right to a security clearance, the applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the Government has a compelling interest in ensuring each applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an Applicant’s suitability for access in favor of the government.4

ANALYSIS

The Government established a case for disqualification under Guideline J, by showing Applicant’s criminal conduct in 1993 and 1994, and two arrest warrants in 1996. However, Applicant mitigated the criminal conduct security concerns. When Applicant moved to the east coast by September 1999, he left behind the environment and the people surrounding his criminal conduct. The most recent criminal conduct—the alleged-but-not-proven crimes underlying his two warrants—occurred over 13 years ago. The most recent of the proven criminal conduct occurred over 14 years ago. All the crimes occurred when Applicant was 16-18 years old. There has been no further criminal conduct, not even a traffic stop that could reveal the outstanding warrants, even though Applicant was unaware of the warrants from 1996 to July 2008. He has been steadily employed since April 2000, and currently has a good employment record. He married (March 2000), started a family (November 2000 and 2004), and obtained his college degree (February 2008). He paid the fees associated with his 1990scrimes, and has been constructively involved in his community. Thus, the evidence of successful rehabilitation is very strong. I resolve Guideline J for Applicant.

The Government did not establish a case for disqualification under Guideline E. The criminal conduct allegations cross-referenced in SOR 2.a raise no security concerns not fully addressed by Guideline J. The allegations of SOR 1.a-e do not constitute deliberate falsification of a clearance application [16. (a)], deliberately false information to an investigator [16 (b)], adverse information in several adjudicative areas [16 (c)] adverse information not explicitly covered elsewhere [16 (d)], personal conduct creating vulnerability to exploitation [16 (e)], a violation of an acknowledged condition of employment [16 (f)], or association with criminals [16 (g)]. SOR 2.balleges giving false information to a government investigator by failing to disclose the arrest warrants of SOR 1.dand 1.e, but record evidence establishes that Applicant was unaware of the warrants when he was first interviewed. I resolve Guideline E for Applicant.

The most important consideration under the whole person factors of AG ¶ 2(a) is the fact that Applicant still has two outstanding arrest warrants in his home state. However, he understands that he has to resolve the warrants, and was taking steps to do so when unexpected surgery dealt him a financial setback. He has contacted several lawyers about representing him in these two matters. Although Applicant has known about the warrants for two years, his decision to postpone surrendering on the warrants until he has counsel and is able to coordinate his surrender with state law enforcement officials is reasonable and demonstrates good judgment. In the meantime, I consider the risk that he can be pressured because of the warrants is low.

FORMAL FINDINGS

Paragraph 1. Guideline J: FOR APPLICANT

Subparagraphs a-e: For Applicant

Paragraph 2. Guideline E: FOR APPLICANT

Subparagraphs a-b: For Applicant

CONCLUSION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance granted.

JOHN GRATTAN METZ, JR Administrative Judge

FOOTNOTES

DOHA acted under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1990), as amended; Department of Defense (DoD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DoD on 1 September 2006. Although the Government alleged the theft and burglary as separate charges (SOR 1.a and 1.b), the two allegations arose out of the same incident and were tried together. Applicant reported the charges on his clearance application by the disposition date, August 1995 (Item 4), but mistakenly reported the arrest as occurring in 1993 during his subject interview (Item 5). The FBI rap sheet (Item 7) reports the correct February 1994 date.

The affidavit references the police report, but beyond being able to identify it as a 1995 report, it is not possible to state how long after the alleged theft the police report was written. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

¶31.(a) a single serious crime or multiple lesser offenses; (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted;

¶32.(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or judgment; (d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, . . . higher education, good employment record, or constructive community involvement.