ISCR Case 08-09733.h1

Case Headnote

ISCR Case No. 08-09733.h1

grantedDec 17, 2009· Hon. Philip S. Howe· hearing

Summary

A 39-year-old married male applicant sought eligibility for a public trust position, facing concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons detailed several past incidents. In 1990, the applicant was arrested for drug and stolen property offenses, pleading guilty and successfully completing probation. A more serious incident occurred in 1989 when the applicant, intoxicated, stabbed a man during a fight, leading to the victim's death. In 1995, the applicant was arrested for murder and burglary, with charges later reduced to voluntary manslaughter and burglary in 1996. He was sentenced to 20 years for manslaughter and 10 years for burglary, served concurrently, and was released after 7.5 years in 2002, successfully completing probation in 2007.

Additionally, the applicant failed to disclose his 1995 arrest and 1996 conviction for voluntary manslaughter and burglary on his SF-85P in April 2008. Disqualifying conditions J.31.a (allegations or admissions of criminal conduct) and J.31.c (a pattern of criminal conduct) were raised.

However, the applicant demonstrated significant rehabilitation. He completed rehabilitation programs and earned multiple college degrees while incarcerated. Since his release in 2002, he has maintained a clean record with no further criminal behavior. Positive testimonials from his current employer and a prosecuting attorney further supported his character and trustworthiness. Mitigating conditions J.32.a (the criminal conduct was not recent), J.32.d (the individual has demonstrated rehabilitation), and E.16.a (the individual has taken positive steps to significantly mitigate the impact of the conduct) were applied, leading to a GRANTED outcome.

Why the Applicant Prevailed

The applicant successfully completed rehabilitation programs and obtained multiple college degrees while incarcerated.
He has maintained a clean record since his release from prison in 2002, demonstrating no further criminal behavior.
The applicant's current employer and a prosecuting attorney provided positive testimonials regarding his character and trustworthiness.

Conditions Referenced

Disqualifying

J.31.araisedCriminal Conduct - a Single Serious Crime or Multiple Lesser Offenses
J.31.craisedCriminal Conduct - Allegation or Admission of Criminal Conduct

Mitigating

J.32.aappliedCriminal Conduct - so Much Time Has Elapsed Since the Criminal Behavior Happened That It Is Unlikely to Recur
J.32.dappliedCriminal Conduct - Evidence of Successful Rehabilitation
E.16.arejectedPersonal Conduct - Deliberate Omission, Concealment, or Falsification of Relevant FactsThe applicant did not deliberately falsify his SF-85P as he believed his offenses were outside the seven-year reporting period.

Key Rule Quoted

“The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, the person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to sensitive duties is clearly consistent with the interests of national security.”

Procedural Posture

SOR issuedMay 5, 2009
Answer filedMay 12, 2009
Hearing heldJul 15, 2009
Decision dateDec 17, 2009

Cite For

Successful Rehabilitation After Serious Criminal Conduct
Consideration of the Whole-person Concept in Adjudication
Impact of Positive Character Testimonials on Trustworthiness Determinations

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 did not disclose his 1995 arrest for murder and burglary on his SF-85P completed in April 2008. Nor did he disclose his conviction in 1996 for voluntary manslaughter and burglary on his SF-85P.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	—	(a) prompt, good-faith correction before being confronted	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant did not disclose his 1995 arrest for murder and burglary on his SF-85P completed in April 2008. Nor did he disclose his conviction in 1996 for voluntary manslaughter and burglary on his SF-85P.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Denied

—

(a) prompt, good-faith correction before being confronted

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested on or about September 24, 1990, for possession of drugs, possession of stolen property, and possession of drugs with intent to sell them. The Applicant’s friend was arrested for the offenses originally, but the drugs were Applicant’s because the friend was transporting them for the Applicant’s roommates to use. Applicant was a passenger in his friend’s car. Applicant denied using these drugs. Applicant turned himself into the police and took the blame for the drugs, exonerating his friend. He pled guilty to the offenses, and received a sentence of fines, community service, and probation. Applicant successfully completed his probation. (Tr. 36; Exhibits 2, 3)	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses
1.b	In 1989, Applicant used his pocket knife to stab a man who was in a fight with one of Applicant’s friends. The Applicant and his friend had gone to the victim’s house to buy some bootlegged liquor. Applicant was intoxicated at the time. When he saw his friend involved in the fight, he assumed the bootlegger attacked his friend. In fact, his friend was attempting to rob the bootlegger. Applicant stabbed the victim bootlegger several times with the knife. On the news several days later Applicant learned the victim died. In April 1995 Applicant was arrested and charged with murder and burglary (for stealing beer as he fled from the victim’s home). Applicant remained in jail after his arrest until the trial on the charges. In June 1996, the charges were reduced to voluntary manslaughter and burglary as part of a plea agreement. The victim’s mother and brother, now deceased, requested at the time that Applicant be given a chance to rejoin society as a productive member of it after serving any prison time. The state court sentenced Applicant to 20 years in jail on the manslaughter charge, and 10 years on the burglary charge, to be served simultaneously. Applicant served 7.5 years in jail. He applied for early release, and was granted it by the state court by the modification and early release in 2002. Applicant was placed on probation for at least five years. After successfully completing the five years, his probation officer suggested he apply to have the probation removed. He did so, and the state court again granted his request, terminating the probation in 2007. (Tr. 37-45, 61-64, 83; Exhibits 2, 3, A)	For Applicant	Homicide	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented No Subsequent Offenses Documented Rehabilitation Evidence

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was arrested on or about September 24, 1990, for possession of drugs, possession of stolen property, and possession of drugs with intent to sell them. The Applicant’s friend was arrested for the offenses originally, but the drugs were Applicant’s because the friend was transporting them for the Applicant’s roommates to use. Applicant was a passenger in his friend’s car. Applicant denied using these drugs. Applicant turned himself into the police and took the blame for the drugs, exonerating his friend. He pled guilty to the offenses, and received a sentence of fines, community service, and probation. Applicant successfully completed his probation. (Tr. 36; Exhibits 2, 3)

For Applicant

Drug Related Criminal Charge

Convicted

Admitted

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

(c) currently on parole or probation

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

1.b

In 1989, Applicant used his pocket knife to stab a man who was in a fight with one of Applicant’s friends. The Applicant and his friend had gone to the victim’s house to buy some bootlegged liquor. Applicant was intoxicated at the time. When he saw his friend involved in the fight, he assumed the bootlegger attacked his friend. In fact, his friend was attempting to rob the bootlegger. Applicant stabbed the victim bootlegger several times with the knife. On the news several days later Applicant learned the victim died. In April 1995 Applicant was arrested and charged with murder and burglary (for stealing beer as he fled from the victim’s home). Applicant remained in jail after his arrest until the trial on the charges. In June 1996, the charges were reduced to voluntary manslaughter and burglary as part of a plea agreement. The victim’s mother and brother, now deceased, requested at the time that Applicant be given a chance to rejoin society as a productive member of it after serving any prison time. The state court sentenced Applicant to 20 years in jail on the manslaughter charge, and 10 years on the burglary charge, to be served simultaneously. Applicant served 7.5 years in jail. He applied for early release, and was granted it by the state court by the modification and early release in 2002. Applicant was placed on probation for at least five years. After successfully completing the five years, his probation officer suggested he apply to have the probation removed. He did so, and the state court again granted his request, terminating the probation in 2007. (Tr. 37-45, 61-64, 83; Exhibits 2, 3, A)

For Applicant

Homicide

Convicted

Admitted

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

(c) currently on parole or probation

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

Documented

No Subsequent Offenses

Documented

Rehabilitation Evidence

Loading case…

Case Profile

Summary

Why the Applicant Prevailed

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