ISCR Case 11-12202.h1

Case Headnote

ISCR Case No. 11-12202.h1

grantedFeb 21, 2014· Hon. Martin H. Mogul· hearing

Summary

A 46-year-old defense contractor and former Army National Guard member was granted a security clearance despite concerns under Guidelines D (Sexual Behavior), E (Personal Conduct), G (Alcohol Consumption), and J (Criminal Conduct). The Statement of Reasons detailed a General Court-Martial in 2006 where the applicant was found not guilty of rape but guilty of fraternizing with enlisted persons, wrongful sex with a non-spouse, wrongful indecent acts, and violating a lawful general order by consuming alcohol. For these offenses, he was sentenced to dismissal from the military and two years of confinement.

Additional allegations included a 1990 Driving While Intoxicated (DWI) arrest, a 1989 public intoxication charge, and a 1988 arrest for furnishing alcohol to minors. The applicant was also evaluated in 1993 for alcohol abuse. He admitted to the allegations of sexual behavior, excessive alcohol consumption, and criminal acts.

However, the judge found significant rehabilitation. The applicant has abstained from alcohol since April 2005, nearly nine years prior to the decision. He provided extensive positive character references and evidence of proactive steps to address his past behavior. The time elapsed since the last incident and his demonstrated behavioral change were key mitigating factors, leading to the decision to grant the security clearance.

Why the Applicant Prevailed

The applicant has not consumed alcohol since April 2005, demonstrating significant behavioral change.
The applicant provided extensive positive character references and evidence of rehabilitation.
The time elapsed since the last incident and the applicant's proactive steps to address past behavior were considered mitigating.

Conditions Referenced

Disqualifying

E2.A2.1raisedPersonal ConductThe applicant engaged in conduct that exhibited questionable judgment and unreliability.
E2.A2.2raisedAlcohol ConsumptionThe applicant's history of alcohol-related incidents raised concerns about judgment.
E2.A2.3raisedSexual ConductThe applicant's sexual behavior was criminal in nature.
E2.A2.4raisedCriminal ConductThe applicant engaged in criminal acts that create doubt about judgment.

Mitigating

E2.A2.1appliedPersonal ConductThe applicant's conduct occurred almost nine years ago, and he has shown remorse and rehabilitation.
E2.A2.2appliedAlcohol ConsumptionThe applicant has maintained abstinence from alcohol since 2005 and has completed counseling.
E2.A2.3appliedSexual ConductThe sexual conduct occurred only once and under unusual circumstances, unlikely to recur.
E2.A2.4appliedCriminal ConductThe applicant has demonstrated successful rehabilitation and no recurrence of criminal activity.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”
— Executive Order 10865

Procedural Posture

SOR issuedMay 29, 2013
Answer filedJun 22, 2013
Hearing heldJan 30, 2014Hearing convened as scheduled.
Decision dateFeb 21, 2014

Cite For

Successful Rehabilitation After Criminal Conduct Under Guideline J
Mitigating Factors for Past Alcohol-related Incidents Under Guideline G
Consideration of the Whole-person Concept 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	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
3.a	The SOR alleges in this paragraph that Applicant is ineligible for clearance because he has engaged in sexual behavior that is either criminal, indicates a personality or emotional disorder, reflects lack of judgement or discretion, or which may subject an individual to undue influence or coercion. Applicant admitted this allegation in his RSOR.	For Applicant	Criminal Sexual Conduct	Admitted	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted (d) sexual behavior of a public nature or that reflects lack of discretion or judgment	(b) the behavior happened so long ago, so infrequently, or under such unusual circumstances that it is unlikely to recur and does not cast doubt on curren…	Claimed Other

Allegation

Finding

Type

Response

Disqualifying (¶13)

Mitigating applied (¶14)

Mitigation

3.a

The SOR alleges in this paragraph that Applicant is ineligible for clearance because he has engaged in sexual behavior that is either criminal, indicates a personality or emotional disorder, reflects lack of judgement or discretion, or which may subject an individual to undue influence or coercion. Applicant admitted this allegation in his RSOR.

For Applicant

Criminal Sexual Conduct

Admitted

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted

(d) sexual behavior of a public nature or that reflects lack of discretion or judgment

(b) the behavior happened so long ago, so infrequently, or under such unusual circumstances that it is unlikely to recur and does not cast doubt on curren…

Claimed

Other

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	It is alleged in the SOR that Applicant was tried by a General Court-Marital and was charged with Article 120 - Rape. For this charge Applicant was found Not Guilty. Applicant was also charged with Article 134 - Fraternizing with Enlisted Persons, Wrongful Sex with Person Not Your Spouse, and Wrongful Indecent Act. For these charges Applicant was found Guilty. Applicant was charged with Article 92 - Violate a Lawful General Order, by consuming alcohol. For this charge Applicant was found Guilty. Applicant was charged with Article 133 - While in a Hostile Fire Zone, mixed alcohol drinks at a party for enlisted soldiers and had sex with a female enlisted soldier. For this charge Applicant was found Guilty. For these Guilty charges, on April 7, 2006, Applicant was sentenced to dismissal from the military, and sentenced to confinement for two years.	For Applicant	Questionable Judgment General	—	Admitted	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	Credited Passage of Time Credited Acknowledgment and Remorse
1.b	It is alleged in the SOR that in 1990, Applicant was arrested and charged with Driving While Intoxicated (DWI). Applicant was fined, received alcohol counseling, license restriction, and was ordered to serve one year probation.	For Applicant	Questionable Judgment General	—	Admitted	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	Credited Passage of Time Credited Acknowledgment and Remorse
1.c	It is alleged in the SOR that on April 8, 1989, Applicant was charged with Public Intoxication.	For Applicant	Questionable Judgment General	—	Admitted	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	Credited Passage of Time Credited Acknowledgment and Remorse
1.d	It is alleged in the SOR that on November 18, 1988, Applicant was arrested for Furnishing Alcohol to Minors.	For Applicant	Questionable Judgment General	—	Admitted	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	Credited Passage of Time Credited Acknowledgment and Remorse

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

It is alleged in the SOR that Applicant was tried by a General Court-Marital and was charged with Article 120 - Rape. For this charge Applicant was found Not Guilty. Applicant was also charged with Article 134 - Fraternizing with Enlisted Persons, Wrongful Sex with Person Not Your Spouse, and Wrongful Indecent Act. For these charges Applicant was found Guilty. Applicant was charged with Article 92 - Violate a Lawful General Order, by consuming alcohol. For this charge Applicant was found Guilty. Applicant was charged with Article 133 - While in a Hostile Fire Zone, mixed alcohol drinks at a party for enlisted soldiers and had sex with a female enlisted soldier. For this charge Applicant was found Guilty. For these Guilty charges, on April 7, 2006, Applicant was sentenced to dismissal from the military, and sentenced to confinement for two years.

For Applicant

Questionable Judgment General

—

Admitted

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

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

Credited

Passage of Time

Credited

Acknowledgment and Remorse

1.b

It is alleged in the SOR that in 1990, Applicant was arrested and charged with Driving While Intoxicated (DWI). Applicant was fined, received alcohol counseling, license restriction, and was ordered to serve one year probation.

For Applicant

Questionable Judgment General

—

Admitted

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

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

Credited

Passage of Time

Credited

Acknowledgment and Remorse

1.c

It is alleged in the SOR that on April 8, 1989, Applicant was charged with Public Intoxication.

For Applicant

Questionable Judgment General

—

Admitted

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

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

Credited

Passage of Time

Credited

Acknowledgment and Remorse

1.d

It is alleged in the SOR that on November 18, 1988, Applicant was arrested for Furnishing Alcohol to Minors.

For Applicant

Questionable Judgment General

—

Admitted

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

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

Credited

Passage of Time

Credited

Acknowledgment and Remorse

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	It is alleged in the SOR that Applicant was evaluated on or about August 24, 1993, by a Ph.D. of the United States Army Soldier Support Center for a condition diagnosed in part as alcohol Abuse.	For Applicant	Alcohol Use Disorder Diagnosed	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence	—
2.b	It is alleged in the SOR that Applicant's conduct, reviewed in sub-paragraphs 1.a., through 1.d., above, constitutes excessive alcohol consumption.	For Applicant	Binge or Intoxication Pattern	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence (d) completed treatment and aftercare with established abstinence/modified use	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

2.a

It is alleged in the SOR that Applicant was evaluated on or about August 24, 1993, by a Ph.D. of the United States Army Soldier Support Center for a condition diagnosed in part as alcohol Abuse.

For Applicant

Alcohol Use Disorder Diagnosed

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

(c) habitual or binge consumption to the point of impaired judgment

(a) so much time has passed / so infrequent that it is unlikely to recur

(b) acknowledges the pattern and has established modified use or abstinence

—

2.b

It is alleged in the SOR that Applicant's conduct, reviewed in sub-paragraphs 1.a., through 1.d., above, constitutes excessive alcohol consumption.

For Applicant

Binge or Intoxication Pattern

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

(c) habitual or binge consumption to the point of impaired judgment

(a) so much time has passed / so infrequent that it is unlikely to recur

(b) acknowledges the pattern and has established modified use or abstinence

(d) completed treatment and aftercare with established abstinence/modified use

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
4.a	The SOR alleges that Applicant has engaged in criminal acts, which create doubt about a person’s judgement, reliability, and trustworthiness. As reviewed above, Applicant admitted all of these allegations in his RSOR and during his testimony at the hearing. Applicant admitted this allegation in his RSOR.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	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.)	Credited Passage of Time Credited Rehabilitation Evidence

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

4.a

The SOR alleges that Applicant has engaged in criminal acts, which create doubt about a person’s judgement, reliability, and trustworthiness. As reviewed above, Applicant admitted all of these allegations in his RSOR and during his testimony at the hearing. Applicant admitted this allegation in his RSOR.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

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.)

Credited

Passage of Time

Credited

Rehabilitation Evidence

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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

FINDINGS OF FACT

POLICIES

ANALYSIS

WHOLE PERSON CONCEPT

FORMAL FINDINGS

CONCLUSION