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ISCR Case 14-00278.h1 — CASE

ISCR Case 14-00278.h1denied

Case Headnote

ISCR Case No. 14-00278.h1

deniedJan 20, 2015· Hon. Marc E. Curry· hearing

Summary

A 23-year-old single man with a high school education was denied a security clearance under Guideline J (Criminal Conduct) due to a history of criminal offenses. The applicant's record included a misdemeanor charge in August 2008, at age 17, for carrying a concealed weapon. He pleaded guilty in November 2008, receiving a sentence of one year of probation, one month of house arrest, and 100 hours of community service.

In July 2013, the applicant was arrested and charged with domestic-related assault and battery. He pleaded guilty to this charge and was sentenced to two years of probation, along with an order to attend an anger management course.

The security clearance was denied because the applicant's criminal conduct, including the recent assault and battery conviction, raised security concerns. He was also currently on probation, and failed to provide evidence of rehabilitation or constructive community involvement.

Why the Applicant Was Denied

Applicant has a history of criminal conduct, including a recent conviction for assault and battery.
Applicant is currently on probation, which raises security concerns under Guideline J.
Applicant failed to provide evidence of rehabilitation or constructive community involvement.

Conditions Referenced

Disqualifying

AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(d)raisedIndividual Is Currently on Parole or Probation

Mitigating

AG ¶ 32(d)rejectedEvidence of Job Training, Higher Education, Good Employment Record, or Constructive Community InvolvementApplicant offered no evidence to rebut the negative inference generated by the recency of his crime.

Key Rule Quoted

“Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness.”
— AG ¶ 30

Procedural Posture

SOR issuedMar 18, 2014
Answer filedJan 20, 2015Undated answer admitting allegations.
Hearing held—Applicant requested a decision on the record.
Decision dateDec 22, 2014Decision issued after reopening the record.

Cite For

Denial of Security Clearance Due to Ongoing Probation for Criminal Conduct
Impact of Recency of Criminal Behavior on Security Clearance Eligibility
Lack of Evidence of Rehabilitation as a Factor 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.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline J, citing concerns about the applicant's criminal conduct, which included two arrests and a recent conviction. The applicant failed to provide sufficient evidence of rehabilitation or mitigating factors, leading to a denial of security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In approximately August 2008, Applicant, then 17 years old, was arrested for carrying a concealed weapon, a misdemeanor charge. In November 2008, he pleaded guilty in juvenile court, and was sentenced to one year of probation, one month of house arrest, and 100 hours of community service.	Against Applicant	Weapons Offense	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (d) violation of parole/probation or failure to complete a court program	—	—
1.b	In July 2013, Applicant was arrested and charged with assault and battery. There is no additional information on file about the circumstances surrounding this charge other than that it was domestic-related. Applicant pleaded guilty and was placed on probation for two years. He was also ordered to attend an anger management course.	Against Applicant	Assault or Battery	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (d) violation of parole/probation or failure to complete a court program	—	—

Descriptive standardized rendering of a decided public case (Guideline J). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 14-00278 ) ) Applicant for Security Clearance )

For Government: Tovah A. Minster, Esq., Department Counsel For Applicant: pro se

01/20/2015 ______________

STATEMENT OF CASE

______________

CURRY, Marc E., Administrative Judge:

Applicant failed to mitigate the security concern generated by his criminal conduct. Clearance is denied.

Statement of the Case

On March 18, 2014, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline J, criminal conduct. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) as promulgated by the President on September 1, 2006. In an undated answer, Applicant admitted the allegations and requested a decision on the record rather than a hearing. On September 27, 2014, Department Counsel prepared a File of Relevant Material (FORM). DOHA provided Applicant with a copy of the FORM on October 6, 2014. Applicant did not submit a response, and on December 4, 2014, I was assigned the case. On December 22, 2014, I re-opened the record sua sponte to allow Applicant an opportunity to provide additional evidence. (Judge Exhibit I, dated December 22, 2014) Applicant did not provide any additional documentation.

FINDINGS OF FACT

Applicant is a 23-year-old single man with one child, a toddler. He has a high school education and has been working for a defense contractor as a fitter at a shipyard since 2012. (Item 4 at 10-11)

In approximately August 2008, Applicant, then 17 years old, was arrested for carrying a concealed weapon, a misdemeanor charge. (Item 4 at 24-26) In November 2008, he pleaded guilty in juvenile court, and was sentenced to one year of probation, one month of house arrest, and 100 hours of community service. (Item 4 at 26)

In July 2013, Applicant was arrested and charged with assault and battery. (Item 4 at 27) There is no additional information on file about the circumstances surrounding this charge other than that it was domestic-related. (Item 4 at 27) Applicant pleaded guilty and was placed on probation for two years. He was also ordered to attend an anger management course. (Item 3 at 2) Applicant contends that he completed the anger management course and that the court has ended his probation early for good behavior. (Item 3 at 2) He provided no evidence supporting this contention.

POLICIES

The adjudicative guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, they are applied together with the factors listed in the adjudicative process. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion to obtain a security clearance.

ANALYSIS

Guideline J, Criminal Conduct

Under this guideline, “criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness” (AG ¶ 30). Moreover, “by its very nature, it calls into question a person’s ability or willingness to comply with laws, rules, and regulations” (Id.).

Applicant was arrested twice between 2008 and 2013. He is currently on probation. AG ¶¶ 31(a), “a single serious crime or multiple lesser offenses;” and 31(d) “individual is currently on parole or probation,” apply.

Applicant’s 2013 conviction was recent. He offered no evidence of “job training, higher education, good employment record, or constructive community involvement” to rebut the negative inference generated by the recency of his crime. (AG ¶ 32(d)) Under these circumstances, Applicant has failed to meet his burden of proof, and I conclude his criminal conduct remains a security concern.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Applicant was a minor when he committed his first crime. It is therefore mitigated partially by his immaturity. His criminal behavior recurred, however, when he was arrested in 2013 for a domestic violence-related crime. Because he remains on probation for his latest crime and failed to submit any evidence of rehabilitation, not enough time has elapsed to conclude that he has mitigated the security concern.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline J: AGAINST APPLICANT Subparagraphs 1.a-1.b: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

MARC E. CURRY Administrative Judge