ISCR Case 01-02060.h1

Case Headnote

ISCR Case No. 01-02060.h1

grantedDec 10, 2001· Hon. William R. Kearney· hearing

Summary

A 44-year-old technician with 22 years of security clearance was granted a security clearance despite allegations under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The allegations stemmed from several past incidents, including three misdemeanor arrests for Battery in 1992, 1999, and 2000. The 1992 charge was resolved through a successful Pre-trial Diversion program, while the 1999 and 2000 cases were closed with a 'Notice of No Information.' Additionally, the applicant was detained in 1995 for suspicion of Driving While Intoxicated but passed a Breathalyzer test and was released.

The applicant was also alleged to have falsified answers on an SF-86 form in 1997 by not disclosing these past incidents. However, the judge found that the applicant was not convicted of any of the minor criminal offenses.

Crucially, the judge determined that the applicant's failure to disclose a past charge was a mistake rather than intentional concealment. Given that no convictions resulted from the criminal allegations and the lack of intent in the disclosure issue, the security clearance was granted.

Why the Applicant Prevailed

The applicant was not convicted of any of the alleged minor criminal offenses.
The applicant's failure to disclose a past charge was deemed a mistake, not intentional concealment.
The applicant successfully completed a Pre-trial Diversion program, leading to the dismissal of the charge.

Conditions Referenced

Disqualifying

J.1.araisedAllegations or Admissions of Criminal Conduct, Regardless of Whether the Person Was Formally Charged
J.1.braisedA Single Serious Crime or Multiple Lesser Offenses
E.2raisedThe Deliberate Omission, Concealment, or Falsification of Relevant and Material Facts

Mitigating

J.aappliedThe Criminal Behavior Was Not Recent
J.eappliedAcquittal
E.2appliedThe Falsification Was an Isolated Incident, Was Not Recent, and the Individual Has Subsequently Provided Correct Information Voluntarily
E.4appliedOmission of Material Facts Was Caused or Significantly Contributed to by Improper or Inadequate Advice of Authorized Personnel

Key Rule Quoted

“The gravamen of a falsification case is whether an Applicant has been less than truthful and candid with the Government, not whether the Government was ultimately misled or deceived.”

Procedural Posture

SOR issuedJun 14, 2001
Answer filedJul 19, 2001
Hearing heldOct 2, 2001
Decision dateDec 10, 2001

Cite For

Mitigation of Minor Criminal Conduct Under Guideline J
Evaluation of Personal Conduct and Intent Under Guideline E
Impact of Legal Advice on Disclosure Obligations in Security Clearance Applications

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	The Amended SOR alleges that the Applicant falsified his answers on SF-86, to question 23, subparagraph (d) and (f), when he answered them in the negative on August 22, 1997.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	—	(b) omission/refusal followed advice of counsel; later cooperated fully	Claimed Other

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

The Amended SOR alleges that the Applicant falsified his answers on SF-86, to question 23, subparagraph (d) and (f), when he answered them in the negative on August 22, 1997.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Denied

—

(b) omission/refusal followed advice of counsel; later cooperated fully

Claimed

Other

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	On March 19, 2000, the Applicant was arrested for Battery, a misdemeanor. The case was closed as a 'Notice of No Information' was filed with the Court.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Denied	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.b	On August 14, 1999, the Applicant was arrested for Battery, a misdemeanor. The case was closed as a 'Notice of No Information' was filed with the Court.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Denied	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.c	On November 5, 1995, the Applicant was detained while at Vandenberg Air Force Base, California, for suspicion of Driving While Intoxicated. The Applicant passed the Breathalyser test and was released.	For Applicant	Traffic Offense Pattern	Conduct No Charge	Denied	—	—	—
1.d	On May 19, 1992, the Applicant was arrested for Battery, a misdemeanor. The Applicant was placed on Pre-trial Diversion, which he completed successfully, leading to the charge being null and void.	For Applicant	Assault or Battery	Diversion or Deferred	Denied	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

On March 19, 2000, the Applicant was arrested for Battery, a misdemeanor. The case was closed as a 'Notice of No Information' was filed with the Court.

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Denied

—

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

—

1.b

On August 14, 1999, the Applicant was arrested for Battery, a misdemeanor. The case was closed as a 'Notice of No Information' was filed with the Court.

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Denied

—

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

—

1.c

On November 5, 1995, the Applicant was detained while at Vandenberg Air Force Base, California, for suspicion of Driving While Intoxicated. The Applicant passed the Breathalyser test and was released.

For Applicant

Traffic Offense Pattern

Conduct No Charge

Denied

—

1.d

On May 19, 1992, the Applicant was arrested for Battery, a misdemeanor. The Applicant was placed on Pre-trial Diversion, which he completed successfully, leading to the charge being null and void.

For Applicant

Assault or Battery

Diversion or Deferred

Denied

—

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

—

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Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision