ISCR Case 14-00271.h1

Case Headnote

ISCR Case No. 14-00271.h1

grantedMay 28, 2014· Hon. Francisco Mendez· hearing

Summary

This case concerns a 29-year-old merchant seaman who was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The applicant had a history of minor criminal incidents, all of which were resolved without conviction or with successful completion of sentencing terms.

Specifically, in March 2006, he was arrested for malicious wounding following a fistfight, but the felony charge was nolle prossed. In July 2008, he faced two felony drug charges after drugs were found on a passenger in his car during a traffic stop; both charges were also nolle prossed. His most recent incident was a May 2009 misdemeanor conviction for obstruction of justice, for which he received a suspended jail sentence and two years of unsupervised probation, both successfully completed.

The judge found that the applicant had demonstrated rehabilitation, noting no further criminal activity since 2009. His testimony regarding unawareness of the drugs found on his passenger was deemed credible, mitigating that specific concern. Additionally, his omission of criminal history on the security clearance application was considered an unintentional misunderstanding of disclosure requirements. Based on these factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant has not been involved in any criminal activity since 2009, demonstrating rehabilitation.
He credibly testified that he was unaware of the drugs found on a passenger during a prior arrest, which mitigated the criminal conduct concern.
The applicant's omission of his criminal history on the security clearance application was deemed unintentional, as he misunderstood the disclosure requirements.

Conditions Referenced

Disqualifying

AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)raisedAllegation or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged, Formally Prosecuted or Convicted

Mitigating

AG ¶ 32(a)appliedSo Much Time Has Elapsed Since the Criminal Behavior Happened, or It Happened Under Such Unusual Circumstances That It Is Unlikely to Recur or Does Not Cast Doubt on the Individual's Reliability, Trustworthiness, or Good Judgment
AG ¶ 32(c)appliedEvidence That the Person Did Not Commit the Offense
AG ¶ 32(d)appliedThere Is Evidence of Successful Rehabilitation; Including but Not Limited to the Passage of Time Without Recurrence of Criminal Activity, Remorse or Restitution, Job Training or Higher Education, Good Employment Record, or Constructive Community Involvement

Key Rule Quoted

“An omission is not deliberate if the person genuinely forgot the information requested, inadvertently overlooked or misunderstood the question, or sincerely thought the information did not need to be reported.”

Procedural Posture

SOR issuedMar 3, 2014
Answer filed—
Hearing heldMay 12, 2014
Decision dateMay 28, 2014

Cite For

Mitigation of Criminal Conduct Under Guideline J
Unintentional Omission of Criminal History on Security Clearance Applications
Successful Rehabilitation and Responsible Conduct in the Context of Security Clearance Eligibility

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–2.b	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant		Criminal Conduct		—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a–2.b

2 sub-charges — specific text not stated in this decision (for the applicant).

For Applicant

Criminal Conduct

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In March 2006, Applicant was involved in a fistfight with a childhood friend. During the fight, Applicant’s friend suffered a small cut on his wrist. No weapons were involved in the fight. Applicant was arrested and charged with malicious wounding, a felony. Less than two weeks later the charge was nolle prossed. (SOR ¶ 1.a)	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Denied	(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 (c) no reliable evidence the individual committed the offense	Documented No Subsequent Offenses
1.b	In July 2008, Applicant was giving a ride to a recent acquaintance when he was pulled over by the police for a traffic violation. The police then conducted a search of the car, as well as Applicant and his passenger. The police uncovered drugs on the passenger. Applicant and the passenger were arrested. Applicant was charged with two felony drug offenses. Both charges were nolle prossed. (SOR ¶ 1.b)	For Applicant	Drug Related Criminal Charge	Dismissed or Nolle Prossed	Denied	(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 (c) no reliable evidence the individual committed the offense	Documented No Subsequent Offenses
1.c	In May 2009, Applicant was cited for obstruction of justice, a misdemeanor. He was convicted of the misdemeanor charge. He was sentenced to six months in jail (all but four days suspended) and two years of unsupervised probation. He successfully completed all terms of his sentence. (SOR ¶ 1.c)	For Applicant	Probation or Court Order Violation	Convicted	Denied	(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.)	Documented No Subsequent Offenses

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In March 2006, Applicant was involved in a fistfight with a childhood friend. During the fight, Applicant’s friend suffered a small cut on his wrist. No weapons were involved in the fight. Applicant was arrested and charged with malicious wounding, a felony. Less than two weeks later the charge was nolle prossed. (SOR ¶ 1.a)

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Denied

(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

(c) no reliable evidence the individual committed the offense

Documented

No Subsequent Offenses

1.b

In July 2008, Applicant was giving a ride to a recent acquaintance when he was pulled over by the police for a traffic violation. The police then conducted a search of the car, as well as Applicant and his passenger. The police uncovered drugs on the passenger. Applicant and the passenger were arrested. Applicant was charged with two felony drug offenses. Both charges were nolle prossed. (SOR ¶ 1.b)

For Applicant

Drug Related Criminal Charge

Dismissed or Nolle Prossed

Denied

(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

(c) no reliable evidence the individual committed the offense

Documented

No Subsequent Offenses

1.c

In May 2009, Applicant was cited for obstruction of justice, a misdemeanor. He was convicted of the misdemeanor charge. He was sentenced to six months in jail (all but four days suspended) and two years of unsupervised probation. He successfully completed all terms of his sentence. (SOR ¶ 1.c)

For Applicant

Probation or Court Order Violation

Convicted

Denied

(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.)

Documented

No Subsequent Offenses

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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

FOOTNOTES