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Summary

The Applicant, a 46-year-old defense contractor, sought a security clearance despite past financial difficulties and criminal conduct. The judge found that the Applicant's financial issues were largely due to wrongful incarceration, and he demonstrated a commitment to resolving his debts. Additionally, the Applicant's criminal history was mitigated by the circumstances surrounding the incidents and his subsequent acquittal, leading to a decision to grant the security clearance.

Under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct), the Statement of Reasons alleged the following: The Applicant started work for his current employer in May 2008. He filled out an SF86 the same month. Question 23.a. asks whether the Applicant had ever been charged or convicted of any felony offense. He answered "No." This answer was false, as described above (3.a). Question 23.f. of Government Exhibit 1 asks the Applicant whether, in the last seven years, he had been arrested, charged with or convicted of any offense not listed elsewhere on the form. He answered "No." This answer was also false, as described above (3.b). The Government also alleges that the facts stated in Paragraph 2 above, have separate security significance under this Guideline as well (3.c). The Applicant admits that he is indebted to a collection agency in the amount of $205 for a returned check. The Applicant sent a letter to the creditor in October 2008 to determine how he could pay this debt. He had not heard from them as of the date of the hearing. He has obtained other contact information and intends to pay this debt as soon as possible (1.a). The Applicant admits that he owed a jaywalking ticket in the amount of $85. The debt was paid in April 2009 (1.b). The Applicant admits that he owes a medical bill in the amount of $614. The Applicant testified that the first time he knew he owed this debt was October 2008, when he obtained a credit report. He stated that he had insurance at the time this debt was incurred and believed all of his medical expenses were covered. He intends to pay this bill quickly (1.c). The Applicant admits that he owes a medical bill in the amount of $297. The Applicant testified that the first time he knew he owed this debt was October 2008, when he obtained a credit report. He stated that he had insurance at the time this debt was incurred and believed all of his medical expenses were covered. He intends to pay this bill quickly (1.d). The Applicant denied that he owes $649 for a past due credit card bill. The Applicant presented documentary evidence that he paid this debt in August 2008. The Government’s latest credit report confirms that this debt has been paid (1.e). The Applicant was arrested for allegedly assaulting Miss One on August 23, 2007. She claimed that the Applicant threw her off of a cliff. As stated earlier, the Applicant could not make bail and spent seven months in pre-trial confinement. The Applicant’s lawyer submitted a letter describing the mental problems of Miss One and stated, “After 7 months of preparation for trial and 1 week of testimony in a jury trial, it took the jury less than 30 minutes in rejecting [Miss One’s] claims and finding [the Applicant] not guilty.” The acquittal occurred on March 17, 2008. The Applicant’s ex-wife also confirms the attorney’s statements. (Transcript at 41-42, 68-72; Government Exhibit 2 at 9-10, Exhibit 3 at 1-2; Applicant’s Exhibit D at 12-13.) (2.a). The Applicant ran into Miss One in January 2006. He saw that she needed help, so he bought some groceries and other items for her at a grocery store. According to the Applicant, while at a drug store, she put stolen items into a bag he was carrying. He was stopped by store security, arrested and charged with Petty Theft. (Government Exhibit 2 at 8-9; Government Exhibit 3 at 2.) This incident is not alleged in the SOR, but is connected to the incident alleged in subparagraph 2.b. Subparagraph 2.b. states that, in May 2006, Miss One accused the Applicant of assaulting her and stealing her cell phone. He was charged with Petty Theft, Abuse of a Family Member and Criminal Contempt of Court. As part of a plea bargain, he plead guilty to the two misdemeanor counts of Petty Theft and the other charges were dismissed. The Applicant states that, in retrospect, it was a mistake to plead guilty to something he did not do. (Transcript at 40-41; Government Exhibit 2 at 9; Exhibit 3 at 2-3.) (2.b). The Applicant was arrested in August 2005 for Unauthorized Control of a Propelled Vehicle. According to the Applicant, he was involved in a dispute with a former employer that involved a vehicle. The Applicant was discharged by the police pending further investigation. There is no evidence the case ever went to court. (Transcript at 39-40; Government Exhibit 3 at 3.) (2.c). The events in subparagraphs 2.d., 2.b. and 2.a. all concern the same person. This was a woman (Miss One) that the Applicant became involved with who, after a period of time, began stalking the Applicant. On May 21, 2005, she had the Applicant arrested for Abuse of a Family Member and Criminal Property Damage. The Applicant could not make bail and spent 23 days in jail. The charges were dismissed without prejudice on June 13, 2005. The Applicant obtained an Order For Protection against Miss One on June 29, 2005. This Order continues in effect to this day. (Transcript at 35-38; Government Exhibit 2 at 8; Applicant’s Exhibit D at 4-11.) (2.d). The Applicant testified, and stated in his Answer, that he has no current knowledge of a Criminal Contempt of Court charge in February 2001. This misdemeanor charge was nolle prosequi by State B authorities. (Transcript at 34-35; Government Exhibit 3 at 4; Applicant’s Answer at 3.) (2.e). The Applicant testified that he cannot remember the particulars of a charge of Abusing a Family Member in January 1995. The police records state that the disposition is unavailable. In his Answer, the Applicant stated that he believes the charges were dismissed. (Transcript at 34; Government Exhibit 3 at 4; Applicant’s Answer at 3.) (2.f). The Applicant has no current memory of a Criminal Contempt of Court citation in January 1995. This misdemeanor charge was dismissed. (Transcript at 33-34; Government Exhibit 3 at 4.) (2.g). The Applicant was arrested in December 1993 as the result of a fight that he got into with his now ex-wife. During an argument he threatened her, hit her truck with a hammer, and then drove the truck away to try and get it fixed. When he returned he was arrested and charged with Making a Terrorist Threat, Criminal Property Damage and Unlawful Control of a Powered Vehicle. He was found guilty and served 57 days in jail, five years probation, required to take a mental health assessment and pay restitution. He successfully completed all the terms of his sentence. (Transcript at 29-33; Government Exhibit 3 at 5-6.) (2.h). The Applicant has no current memory of a Criminal Contempt of Court citation in December 1993. For this misdemeanor he was sentenced to pay a $25 fine. (Transcript at 28-29; Government Exhibit 3 at 5-6.) (2.i). The Applicant’s next arrest occurred in October 1993. The Applicant had moved to State B, where he still lives. The Applicant had bought a double edged knife at the flea market. Such knives are illegal in State B. During a traffic stop the police found the knife and confiscated it. He was charged with Carrying a Deadly Weapon. The Applicant did not appear in court until 1995. At that time he was charged with Criminal Contempt of Court and forfeited his $50 bail. The underlying charge was dismissed. Both charges were misdemeanors. (Transcript at 27-28; Government Exhibit 2 at 8, and Exhibit 3 at 6-7.) (2.j). In 1981, when he was 18 years old, the Applicant was involved in a fight in State A with a person to whom he had lent money. While chasing this person, the Applicant hit and broke a door. He was charged with Breaking and Entering and spent two months in pre-trial confinement because he could not afford the bail. He pled guilty and received credit for time served. He was also awarded two years probation and fined. (Transcript at 24-26; Government Exhibit 2 at 7-8.) (2.k).

The judge granted the clearance. The government raised disqualifying conditions AG ¶ 19(a), AG ¶ 31(a), AG ¶ 31(d). The judge applied mitigating conditions AG ¶ 20(a), AG ¶ 20(b), AG ¶ 20(d), AG ¶ 32(a), AG ¶ 32(b). The decision turned on the following: The Applicant successfully mitigated financial concerns by demonstrating a commitment to resolving debts after wrongful incarceration; The Applicant's criminal conduct was mitigated by the circumstances of being a victim of stalking and subsequent acquittal of serious charges; The Applicant's credible testimony and character references indicated rehabilitation and reliability.

Why the Applicant Prevailed

• The Applicant successfully mitigated financial concerns by demonstrating a commitment to resolving debts after wrongful incarceration.
• The Applicant's criminal conduct was mitigated by the circumstances of being a victim of stalking and subsequent acquittal of serious charges.
• The Applicant's credible testimony and character references indicated rehabilitation and reliability.

Conditions Referenced

Key Rule Quoted

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

Procedural Posture

• SOR issuedFeb 19, 2009
• Answer filedMar 16, 2009
• Hearing heldApr 28, 2009
• Decision dateAug 13, 2009

Cite For

• Mitigation of Financial Difficulties Due to Wrongful Incarceration
• Mitigation of Criminal Conduct Due to Unusual Circumstances
• Successful Rehabilitation and Character References in Security Clearance Cases