ISCR Case 08-11949.h1

Case Headnote

ISCR Case No. 08-11949.h1

deniedNov 30, 2009· Hon. Matthew E. Malone· hearing

Summary

A 41-year-old electronics test technician was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to a history of criminal conduct and other concerns. The applicant's criminal record included a felony conviction in August 2001 for risk of injury to a child and cruelty to persons, for which he received a 10-year sentence, suspended after six years, followed by five years of probation. This conviction led to his discharge from the U.S. Navy under other than honorable conditions.

Additional allegations included an October 1999 arrest for failure to appear, which was dismissed, and an August 1999 arrest for assault and battery of a family member, also dismissed. While in the U.S. Navy in October 1997, the applicant was counseled for violating proper procedures for handling and storing classified materials.

The denial was based on the severe nature of the felony conviction, which raised significant doubts about the applicant's judgment and reliability. The judge determined that the applicant had not demonstrated sufficient rehabilitation or acceptance of responsibility for his past actions, concluding that his conduct reflected a fatal flaw in his character and was severe enough to end his military career.

Why the Applicant Was Denied

The applicant's felony conviction for child abuse raised serious doubts about his judgment and reliability.
The applicant did not demonstrate sufficient rehabilitation or acceptance of responsibility for his past actions.
The applicant's conduct was severe enough to end his military career and reflected a fatal flaw in his character.

Conditions Referenced

Disqualifying

AG ¶ 31(a)appliedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)appliedAllegation or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged, Formally Prosecuted or Convicted
AG ¶ 31(d)appliedIndividual Is Currently on Parole or Probation
AG ¶ 16(c)appliedCredible Adverse Information in Several Adjudicative Issue Areas That Is Not Sufficient for an Adverse Determination Under Any Other Single Guideline

Key Rule Quoted

“A fair and commonsense assessment of all available information bearing on Applicant’s past conduct and current circumstances shows he has failed to address satisfactorily the government’s doubts about his ability or willingness to protect the government’s interests as his own.”

Procedural Posture

SOR issuedJun 10, 2009
Answer filed—
Hearing heldAug 26, 2009
Decision dateNov 30, 2009

Cite For

Disqualifying Conditions Under Guideline J for Serious Criminal Conduct
Impact of Personal Conduct on Security Clearance Eligibility
Failure to Mitigate Security Concerns Related to Past Criminal Behavior

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	As a result of his arrest and conviction for the conduct alleged in SOR ¶ 1.a, in August 2001, Applicant was discharged from the U.S. Navy under other than honorable conditions.	Against Applicant	Questionable Judgment General	—	Admitted	(a) deliberate omission, concealment, or falsification on a security form (c) credible adverse information across areas supporting a whole-person concern (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—
2.b	In about October 1997, while in the U.S. Navy, he was counseled for violating proper procedures for the handling and storage of classified materials.	Against Applicant	Rules Violation at Workplace	—	Admitted	(a) deliberate omission, concealment, or falsification on a security form (c) credible adverse information across areas supporting a whole-person concern (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—
2.c	The government also cross-alleged the criminal conduct cited in SOR ¶¶ 1.a - 1.c.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Admitted	(a) deliberate omission, concealment, or falsification on a security form (c) credible adverse information across areas supporting a whole-person concern (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

As a result of his arrest and conviction for the conduct alleged in SOR ¶ 1.a, in August 2001, Applicant was discharged from the U.S. Navy under other than honorable conditions.

Against Applicant

Questionable Judgment General

—

Admitted

(a) deliberate omission, concealment, or falsification on a security form

(c) credible adverse information across areas supporting a whole-person concern

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

—

2.b

In about October 1997, while in the U.S. Navy, he was counseled for violating proper procedures for the handling and storage of classified materials.

Against Applicant

Rules Violation at Workplace

—

Admitted

(a) deliberate omission, concealment, or falsification on a security form

(c) credible adverse information across areas supporting a whole-person concern

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

—

2.c

The government also cross-alleged the criminal conduct cited in SOR ¶¶ 1.a - 1.c.

Against Applicant

Pattern of Dishonesty or Rule Violations

—

Admitted

(a) deliberate omission, concealment, or falsification on a security form

(c) credible adverse information across areas supporting a whole-person concern

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested in August 2001 and charged with (1) first degree assault, a felony; (2) risk of injury to a child, a felony; and (3) cruelty to persons, a misdemeanor. He pleaded nolo contendere to risk of injury to a child and cruelty to persons, and was sentenced to 10 years in jail, suspended after six years, and probation for five years.	Against Applicant	Assault or Battery	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
1.b	Applicant was arrested in October 1999 for failure to appear, which was dismissed.	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Admitted	—	—	—
1.c	Applicant was arrested in August 1999 and charged with assault and battery of a family member, which was dismissed.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Admitted	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was arrested in August 2001 and charged with (1) first degree assault, a felony; (2) risk of injury to a child, a felony; and (3) cruelty to persons, a misdemeanor. He pleaded nolo contendere to risk of injury to a child and cruelty to persons, and was sentenced to 10 years in jail, suspended after six years, and probation for five years.

Against Applicant

Assault or Battery

Convicted

Admitted

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

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

1.b

Applicant was arrested in October 1999 for failure to appear, which was dismissed.

For Applicant

Unspecified Criminal Conduct

Dismissed or Nolle Prossed

Admitted

—

1.c

Applicant was arrested in August 1999 and charged with assault and battery of a family member, which was dismissed.

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Admitted

—

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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