ISCR Case 11-11232.h1

Case Headnote

ISCR Case No. 11-11232.h1

deniedJun 23, 2014· Hon. David M. White· hearing

Summary

A 57-year-old former U.S. Customs and Border Protection inspector was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The applicant's history included multiple incidents of unprofessional conduct, alcohol-related misconduct, and failures to report arrests to supervisors and on his SF-86. Notably, he was suspended and later terminated from his federal employment following a 2005 arrest for smuggling cigarettes into Canada on at least 54 occasions, resulting in a 2009 conviction for eight related offenses and an unpaid Canadian fine of $16,993.

The applicant deliberately concealed his arrest and subsequent eight months of incarceration on his security clearance application, only attempting to correct these falsifications when confronted. This demonstrated a lack of candor and reliability. Additionally, he had four delinquent credit card debts totaling $22,186, with no payments or arrangements made to resolve them. He also had no intention of addressing these financial obligations, having been unemployed since June 2005.

The judge determined that the applicant's conduct, including his conviction for smuggling while in a position of trust, falsification of his security clearance application, and substantial unresolved debts, established significant security concerns. This pattern of dishonest and untrustworthy behavior, coupled with a lack of effort to mitigate issues, led to the denial of his security clearance application.

Why the Applicant Was Denied

The applicant was convicted of multiple counts of smuggling while employed in a position of trust.
He falsified information on his security clearance application, omitting significant criminal history.
The applicant has substantial unpaid debts and has shown no effort to resolve them.

Conditions Referenced

Disqualifying

E2(a)raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts
E2(c)raisedCredible Adverse Information in Several Adjudicative Issue Areas
E2(d)raisedCredible Adverse Information That May Not Be Sufficient by Itself for an Adverse Determination
J1(a)raisedA Single Serious Crime or Multiple Lesser Offenses
J1(c)raisedAllegation or Admission of Criminal Conduct
F1raisedFailure to Meet Financial Obligations

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

Procedural Posture

SOR issuedMay 2, 2013
Answer filedMay 22, 2013
Hearing heldFeb 12, 2014via video teleconference
Decision dateJun 23, 2014

Cite For

Lack of Candor in Security Clearance Applications Under Guideline E
Criminal Conduct Impacting Security Clearance Eligibility Under Guideline J
Financial Irresponsibility as a Disqualifying Factor Under Guideline F

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
1.a	Applicant was suspended several times before termination of his previous Federal employment after his arrest for smuggling in 2005.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Denied	—	—	—
1.b	He denied the arrest and omitted the resulting incarceration on his security clearance application.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
1.c	Applicant admitted that he has made no payments toward, or other arrangements to resolve, the four delinquent credit card debts totaling $22,186 as alleged in SOR ¶¶ 3.a through 3.d.	Against Applicant	Rules Violation at Workplace	—	Admitted	—	—	—
1.d	Applicant's multiple incidents of unprofessional conduct while on duty as a CBP inspector, alcohol-related misconduct, failures to report arrests to his CBP supervisors and on his SF-86, and violations of Canadian Customs and Excise Acts while smuggling cigarettes on at least 54 different occasions clearly establish significant security concerns under each of these disqualifying conditions.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Denied	—	—	—
1.e	He also deliberately concealed his eight months of incarceration when completing his SF-86.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
1.f	Applicant's conduct supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, and unwillingness to comply with rules and regulations.	Against Applicant	Questionable Judgment General	—	Denied	—	—	—
1.g	Applicant did not attempt to correct his SF-86 falsifications until confronted with the facts, so mitigation under MC 17(a) was not shown.	Against Applicant	Failure to Cooperate with Security Processing	—	Denied	—	—	—
1.h	He demonstrated no intervening basis to conclude that it does not reflect his current reliability, trustworthiness, and judgment.	Against Applicant	Questionable Judgment General	—	Denied	—	—	—
1.i	Applicant's pattern of dishonest and untrustworthy behavior also raises substantial concerns under the provisions of AG ¶ 15 cited above.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Denied	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Applicant was suspended several times before termination of his previous Federal employment after his arrest for smuggling in 2005.

Against Applicant

Pattern of Dishonesty or Rule Violations

—

Denied

—

1.b

He denied the arrest and omitted the resulting incarceration on his security clearance application.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Criminal Conduct

Denied

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

—

1.c

Applicant admitted that he has made no payments toward, or other arrangements to resolve, the four delinquent credit card debts totaling $22,186 as alleged in SOR ¶¶ 3.a through 3.d.

Against Applicant

Rules Violation at Workplace

—

Admitted

—

1.d

Applicant's multiple incidents of unprofessional conduct while on duty as a CBP inspector, alcohol-related misconduct, failures to report arrests to his CBP supervisors and on his SF-86, and violations of Canadian Customs and Excise Acts while smuggling cigarettes on at least 54 different occasions clearly establish significant security concerns under each of these disqualifying conditions.

Against Applicant

Pattern of Dishonesty or Rule Violations

—

Denied

—

1.e

He also deliberately concealed his eight months of incarceration when completing his SF-86.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Criminal Conduct

Denied

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

—

1.f

Applicant's conduct supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, and unwillingness to comply with rules and regulations.

Against Applicant

Questionable Judgment General

—

Denied

—

1.g

Applicant did not attempt to correct his SF-86 falsifications until confronted with the facts, so mitigation under MC 17(a) was not shown.

Against Applicant

Failure to Cooperate with Security Processing

—

Denied

—

1.h

He demonstrated no intervening basis to conclude that it does not reflect his current reliability, trustworthiness, and judgment.

Against Applicant

Questionable Judgment General

—

Denied

—

1.i

Applicant's pattern of dishonest and untrustworthy behavior also raises substantial concerns under the provisions of AG ¶ 15 cited above.

Against Applicant

Pattern of Dishonesty or Rule Violations

—

Denied

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
3.a	Applicant has four delinquent credit card debts totaling $22,186. $22,186	Against Applicant	Credit Card Debt	Admitted	—	—	—
3.b	Applicant has not made any payments toward or other arrangements to resolve the four delinquent credit card debts.	Against Applicant	Unspecified Financial	Admitted	—	—	—
3.c	Applicant has an unpaid fine of $16,993 (Canadian) imposed in June 2009. $16,993	Against Applicant	Unspecified Financial	Admitted	—	—	—
3.d	Applicant has made no effort to resolve his financial obligations.	Against Applicant	Unspecified Financial	Admitted	—	—	—
3.e	Applicant has been unemployed since June 2005 and has no intention of trying to pay or otherwise resolve these delinquent debts.	Against Applicant	Unspecified Financial	Admitted	—	—	—

Allegation

Finding

Type

Response

Disqualifying (¶19)

Mitigating applied (¶20)

Mitigation

3.a

Applicant has four delinquent credit card debts totaling $22,186.

$22,186

Against Applicant

Credit Card Debt

Admitted

—

3.b

Applicant has not made any payments toward or other arrangements to resolve the four delinquent credit card debts.

Against Applicant

Unspecified Financial

Admitted

—

3.c

Applicant has an unpaid fine of $16,993 (Canadian) imposed in June 2009.

$16,993

Against Applicant

Unspecified Financial

Admitted

—

3.d

Applicant has made no effort to resolve his financial obligations.

Against Applicant

Unspecified Financial

Admitted

—

3.e

Applicant has been unemployed since June 2005 and has no intention of trying to pay or otherwise resolve these delinquent debts.

Against Applicant

Unspecified Financial

Admitted

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was arrested by Canadian police for impaired driving at about 2:30 am on October 30, 1998. He had been driving erratically after leaving a bar, and his breathalyzer test results of .09 exceeded the .08 limit for intoxication under Canadian law. The arresting officer reported that Applicant was uncooperative, had to be restrained, and claimed that he had diplomatic immunity as a U.S. Customs Officer. Canadian authorities declined prosecution, and Applicant received only a 24-hour prohibition from driving.	Against Applicant	DUI or DWI Criminal	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
2.b	On March 11, 2005, Applicant was arrested by Canadian customs agents for entering Canada with a large number of undeclared cigarettes that he claims were intended as gifts for his wife’s family in a third country. After an extensive investigation, he was charged with a number of criminal, customs, and excise offenses. Eventually, he was convicted on February 9, 2009, of eight counts alleging offenses under the Canadian Customs Act and the Canadian Excise Act, 2001.	Against Applicant	Drug Related Criminal Charge	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

2.a

Applicant was arrested by Canadian police for impaired driving at about 2:30 am on October 30, 1998. He had been driving erratically after leaving a bar, and his breathalyzer test results of .09 exceeded the .08 limit for intoxication under Canadian law. The arresting officer reported that Applicant was uncooperative, had to be restrained, and claimed that he had diplomatic immunity as a U.S. Customs Officer. Canadian authorities declined prosecution, and Applicant received only a 24-hour prohibition from driving.

Against Applicant

DUI or DWI Criminal

Conduct No Charge

Admitted

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

—

2.b

On March 11, 2005, Applicant was arrested by Canadian customs agents for entering Canada with a large number of undeclared cigarettes that he claims were intended as gifts for his wife’s family in a third country. After an extensive investigation, he was charged with a number of criminal, customs, and excise offenses. Eventually, he was convicted on February 9, 2009, of eight counts alleging offenses under the Canadian Customs Act and the Canadian Excise Act, 2001.

Against Applicant

Drug Related Criminal Charge

Convicted

Denied

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

—

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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