ISCR Case 09-02890.h1

Case Headnote

ISCR Case No. 09-02890.h1

deniedJun 15, 2011· Hon. Robert Robinson Gales· hearing

Summary

A 35-year-old senior electrical engineer and former U.S. Marine Corps member was denied a security clearance due to concerns under Guidelines E (Personal Conduct), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from a history of criminal conduct, including multiple driving while intoxicated (DWI) convictions in October 2006 and November 2007, with one conviction involving a blood alcohol level of 0.14. Additionally, the applicant was arrested and charged with possession of marijuana for sale and cultivating marijuana, to which he pled guilty, resulting in a sentence of probation and community service. Earlier, in 1996, he was arrested for petty theft, though the charge was dismissed. An investigation into alleged fraudulent travel claims against him and other USMC Reservists also resulted in all charges against him being dismissed.

A significant concern involved the applicant's rental property, where a tenant was cultivating marijuana and had tampered with the electrical box. The applicant provided inconsistent statements to investigators regarding his knowledge of these illegal activities. During a February 2009 interview, he initially claimed he only smelled marijuana and was unaware of cultivation or electrical tampering. However, in August 2009 interrogatories, he acknowledged knowing about both the marijuana cultivation and the electrical tampering, stating he failed to report it due to the real estate market. At a subsequent hearing, he reverted to his original position of unawareness.

Further personal conduct issues arose from his failure to disclose during the February 2009 OPM interview that he had been prescribed medical marijuana in October 2008, despite holding a security clearance. While he admitted this omission in his Answer to the Statement of Reasons, he later denied it was deliberate, claiming he never used the prescription and did not consider it relevant. The judge ultimately found that the applicant failed to mitigate the security concerns arising from his past conduct and inconsistent statements.

Why the Applicant Was Denied

The applicant had multiple DUI convictions, including one with a blood alcohol level of 0.14.
The applicant was involved in a criminal case related to a tenant cultivating marijuana in a property he owned.
The applicant provided inconsistent statements regarding his knowledge of illegal activities associated with his tenant.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
H1raisedDrug Involvement
E2raisedPersonal Conduct

Key Rule Quoted

“The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR.”
— Directive ¶ E3.1.15

Procedural Posture

SOR issuedMay 7, 2010
Answer filedJun 26, 2010Applicant requested a hearing.
Hearing heldNov 30, 2010
Decision dateJun 15, 2011

Cite For

Denial of Security Clearance Due to Multiple DUI Convictions
Inconsistent Statements Regarding Knowledge of Criminal Activity
Failure to Mitigate Security Concerns Related to Drug Involvement and Personal Conduct.

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	On February 26, 2009, Applicant was interviewed by an investigator from the Office of Personnel Management (OPM). During that interview, Applicant said he knew there was marijuana in the rental property because he had smelled it, but he was unaware that the tenant had been cultivating marijuana in the house. He also stated that he had failed to notice that the tenant had tapped into the electric box of surrounding neighbors. That information was not entirely accurate, for in his subsequent answers to interrogatories in August 2009, Applicant acknowledged knowing that the tenant was growing marijuana and that the electrical box had been tampered with, but he failed to report those facts because of the current real estate market situation. During the hearing, he reverted back to his original position about not actually knowing what his tenant had done. Applicant’s inconsistent explanations raise the specter that during his February 2009 interview, he may have deliberately failed to disclose what he knew and when he.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	—	Denied	—	—	—
2.b	The SOR alleges that during the same OPM interview, Applicant deliberately failed to disclose that he had been prescribed medical marijuana in October 2008, even though he possessed a security clearance. Applicant admitted the allegation in his Answer to the SOR, but during the hearing denied deliberately failing to disclose the fact because he had never used the prescription and did not think the information was relevant. The topic never was raised in the interview and Applicant never even thought to mention it.	For Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Denied	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

On February 26, 2009, Applicant was interviewed by an investigator from the Office of Personnel Management (OPM). During that interview, Applicant said he knew there was marijuana in the rental property because he had smelled it, but he was unaware that the tenant had been cultivating marijuana in the house. He also stated that he had failed to notice that the tenant had tapped into the electric box of surrounding neighbors. That information was not entirely accurate, for in his subsequent answers to interrogatories in August 2009, Applicant acknowledged knowing that the tenant was growing marijuana and that the electrical box had been tampered with, but he failed to report those facts because of the current real estate market situation. During the hearing, he reverted back to his original position about not actually knowing what his tenant had done. Applicant’s inconsistent explanations raise the specter that during his February 2009 interview, he may have deliberately failed to disclose what he knew and when he.

Against Applicant

Lack of Candor in InterviewFOUND DELIBERATE

—

Denied

—

2.b

The SOR alleges that during the same OPM interview, Applicant deliberately failed to disclose that he had been prescribed medical marijuana in October 2008, even though he possessed a security clearance. Applicant admitted the allegation in his Answer to the SOR, but during the hearing denied deliberately failing to disclose the fact because he had never used the prescription and did not think the information was relevant. The topic never was raised in the interview and Applicant never even thought to mention it.

For Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Other

Denied

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
3.a	Applicant owns several investment properties. He would periodically go to one particular property to collect the rent, and on one particular occasion, while repairing the washer and dryer, he detected the strong aroma of marijuana. Thinking it was the result of his tenant merely smoking a “joint,” Applicant did not give the incident any further interest. Applicant suspected his tenant might be growing marijuana but did not do anything because he did not wish to violate his tenant’s privacy. Furthermore, the tenant was a “paying renter,” and with the state of the real estate market, he chose to ignore the tenant’s actions. In October 2008, the police came to his place of employment and took Applicant into custody before driving to the rental property. A number of agents “swarmed” into the building and raided it. It appeared that Applicant’s tenant was cultivating marijuana in the building. In addition, it was discovered that the tenant had tapped into the electrical box of surrounding neighbors. Applicant is inconsistent in recalling his knowledge of the tenant’s actions pertaining to both the marijuana and the electrical box, claiming he was both unaware of the activity, and that he knew, but failed to report it.	Against Applicant	MarijuanaWHILE CLEARED	Not Applicable	Denied	—	—	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

3.a

Applicant owns several investment properties. He would periodically go to one particular property to collect the rent, and on one particular occasion, while repairing the washer and dryer, he detected the strong aroma of marijuana. Thinking it was the result of his tenant merely smoking a “joint,” Applicant did not give the incident any further interest. Applicant suspected his tenant might be growing marijuana but did not do anything because he did not wish to violate his tenant’s privacy. Furthermore, the tenant was a “paying renter,” and with the state of the real estate market, he chose to ignore the tenant’s actions. In October 2008, the police came to his place of employment and took Applicant into custody before driving to the rental property. A number of agents “swarmed” into the building and raided it. It appeared that Applicant’s tenant was cultivating marijuana in the building. In addition, it was discovered that the tenant had tapped into the electrical box of surrounding neighbors. Applicant is inconsistent in recalling his knowledge of the tenant’s actions pertaining to both the marijuana and the electrical box, claiming he was both unaware of the activity, and that he knew, but failed to report it.

Against Applicant

MarijuanaWHILE CLEARED

Not Applicable

Denied

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested and charged with petty theft in 1996, but the charge was dismissed in furtherance of justice for lack of prosecution.	Against Applicant	Theft or Larceny	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	An investigation regarding alleged fraudulent travel claims submitted by five USMC Reservists, including Applicant, was conducted. All charges against Applicant were dismissed at the Article 32.	For Applicant	Fraud or Deception Criminal	Acquitted or Found Not Guilty	Admitted	—	—	—
1.c	In October 2006, Applicant was arrested and charged with driving while intoxicated (DWI). He was convicted and sentenced to three years of probation, a fine, community service, and one night in jail.	For Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.d	In November 2007, Applicant was arrested and charged with DWI. He was convicted and sentenced to jail time and probation.	For Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.e	Applicant was arrested and charged with possession of marijuana for sale and cultivating marijuana. He pled guilty to the charges and was sentenced to probation and community service.	For Applicant	Drug Related Criminal Charge	Convicted	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

Applicant was arrested and charged with petty theft in 1996, but the charge was dismissed in furtherance of justice for lack of prosecution.

Against Applicant

Theft or Larceny

Dismissed or Nolle Prossed

Admitted

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

—

1.b

An investigation regarding alleged fraudulent travel claims submitted by five USMC Reservists, including Applicant, was conducted. All charges against Applicant were dismissed at the Article 32.

For Applicant

Fraud or Deception Criminal

Acquitted or Found Not Guilty

Admitted

—

1.c

In October 2006, Applicant was arrested and charged with driving while intoxicated (DWI). He was convicted and sentenced to three years of probation, a fine, community service, and one night in jail.

For Applicant

DUI or DWI Criminal

Convicted

Denied

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

(c) currently on parole or probation

—

1.d

In November 2007, Applicant was arrested and charged with DWI. He was convicted and sentenced to jail time and probation.

For Applicant

DUI or DWI Criminal

Convicted

Denied

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

(c) currently on parole or probation

—

1.e

Applicant was arrested and charged with possession of marijuana for sale and cultivating marijuana. He pled guilty to the charges and was sentenced to probation and community service.

For Applicant

Drug Related Criminal Charge

Convicted

Denied

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

(c) currently on parole or probation

—

Loading case…

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