ISCR Case 10-01944.h1

Case Headnote

ISCR Case No. 10-01944.h1

grantedJan 31, 2013· Hon. Mary E. Henry· hearing

Summary

A 47-year-old employee of a DOD contractor was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons (SOR) cited several past incidents and alleged falsifications on his e-QIP application.

Specifically, the applicant had been arrested and charged with unlawful carrying of a weapon in June 1997, a charge that was dismissed. In January 2005, he was arrested and pleaded guilty to possession of marijuana, though court records did not show a sentence or fine. He was also cited for driving with an invalid license in July 2007, a charge the prosecutor rejected. Additionally, a 1998 incident related to union activity resulted in a stay-away order. The SOR also alleged that the applicant falsely answered "no" to questions about arrests, firearms/explosives offenses, and alcohol/drug offenses, and was careless in answering financial questions on his e-QIP.

The judge determined that the applicant's criminal incidents occurred under unusual circumstances and did not indicate a pattern of criminal behavior. Mitigating factors included the significant time elapsed since the last criminal behavior, the applicant's demonstrated rehabilitation through community involvement, and changes in his conduct. Based on these findings, the security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated significant time elapsed since the last criminal behavior, mitigating concerns about reliability and trustworthiness.
The applicant's past arrests occurred under unusual circumstances and did not indicate a pattern of criminal conduct.
The applicant showed evidence of rehabilitation through community involvement and changes in behavior.

Conditions Referenced

Disqualifying

AG ¶ 31(a)raisedCriminal Conduct
AG ¶ 31(c)raisedAdmission of Criminal Conduct

Mitigating

AG ¶ 32(a)appliedTime Elapsed Since Criminal Behavior
AG ¶ 32(c)appliedEvidence of Not Committing the Offense
AG ¶ 32(d)appliedEvidence of Successful Rehabilitation

Key Rule Quoted

“The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability.”

Procedural Posture

SOR issuedJun 21, 2012
Answer filedJul 2, 2012
Hearing heldNov 14, 2012record closed on 11/28/2012
Decision dateJan 31, 2013

Cite For

Mitigating Conditions Under Guideline J for Unusual Circumstances Surrounding Criminal Conduct
Successful Rehabilitation and Community Involvement as Mitigating Factors
Consideration of Time Elapsed Since Criminal Behavior in Security Clearance Decisions

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 answered “no” to financial questions, but acknowledged debt, which shows his carelessness in answering the questions.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Financial	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	Claimed Explanation of Omission Credible
2.b	Applicant answered “no” to the following questions, which are alleged in the SOR as a falsification of his e-QIP: Have you been arrested by any police office, sheriff, marshal, or any other type of law enforcement officer?	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	Claimed Explanation of Omission Credible
2.c	Applicant answered “no” to the following questions, which are alleged in the SOR as a falsification of his e-QIP: Have you EVER been charged with a firearms or explosives offense?	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	Claimed Explanation of Omission Credible
2.d	Applicant answered “no” to the following questions, which are alleged in the SOR as a falsification of his e-QIP: Have you EVER been charged with any offense(s) related to alcohol or drugs?	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	Claimed Explanation of Omission Credible

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant answered “no” to financial questions, but acknowledged debt, which shows his carelessness in answering the questions.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Financial

Denied

(e) personal conduct or concealment creating vulnerability to exploitation

—

Claimed

Explanation of Omission Credible

2.b

Applicant answered “no” to the following questions, which are alleged in the SOR as a falsification of his e-QIP: Have you been arrested by any police office, sheriff, marshal, or any other type of law enforcement officer?

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Denied

(e) personal conduct or concealment creating vulnerability to exploitation

—

Claimed

Explanation of Omission Credible

2.c

Applicant answered “no” to the following questions, which are alleged in the SOR as a falsification of his e-QIP: Have you EVER been charged with a firearms or explosives offense?

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Denied

(e) personal conduct or concealment creating vulnerability to exploitation

—

Claimed

Explanation of Omission Credible

2.d

Applicant answered “no” to the following questions, which are alleged in the SOR as a falsification of his e-QIP: Have you EVER been charged with any offense(s) related to alcohol or drugs?

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Denied

(e) personal conduct or concealment creating vulnerability to exploitation

—

Claimed

Explanation of Omission Credible

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested and charged with unlawful carrying of a weapon, a misdemeanor, in June 1997. The court dismissed the charge.	For Applicant	Weapons Offense	Dismissed or Nolle Prossed	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	—
1.b	Applicant was arrested and charged with possession of marijuana in January 2005. He entered a plea of guilty, but the court records do not show a sentence or fine.	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.c	In July 2007, Applicant was cited for driving while license invalid, a misdemeanor criminal offense. The prosecutor rejected this charge without a pre-trial diversion.	For Applicant	Traffic Offense Pattern	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.d	Applicant was involved in an incident in 1998 related to union activity, which resulted in allegations of threatening conduct. The court resolved this incident with a stay-away order, and no additional incidents have occurred.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.e–1.f	2 sub-charges — specific text not stated in this decision (rulings shown). (low confidence)	Mixed		—		—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was arrested and charged with unlawful carrying of a weapon, a misdemeanor, in June 1997. The court dismissed the charge.

For Applicant

Weapons Offense

Dismissed or Nolle Prossed

Admitted

—

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

(c) no reliable evidence the individual committed the offense

—

1.b

Applicant was arrested and charged with possession of marijuana in January 2005. He entered a plea of guilty, but the court records do not show a sentence or fine.

For Applicant

Drug Related Criminal Charge

Convicted

Admitted

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

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

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

—

1.c

In July 2007, Applicant was cited for driving while license invalid, a misdemeanor criminal offense. The prosecutor rejected this charge without a pre-trial diversion.

For Applicant

Traffic Offense Pattern

Dismissed or Nolle Prossed

Admitted

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

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

—

1.d

Applicant was involved in an incident in 1998 related to union activity, which resulted in allegations of threatening conduct. The court resolved this incident with a stay-away order, and no additional incidents have occurred.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Admitted

—

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

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

—

1.e–1.f

2 sub-charges — specific text not stated in this decision (rulings shown). (low confidence)

Mixed

—

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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

PROCEDURAL RULINGS

FINDINGS OF FACT

POLICIES

ANALYSIS

WHOLE PERSON CONCEPT

FORMAL FINDINGS

CONCLUSION

FOOTNOTES