ISCR Case 01-02812.h1

Case Headnote

ISCR Case No. 01-02812.h1

deniedAug 2, 2002· Hon. Roger C. Wesley· hearing

Summary

A 26-year-old systems analyst was denied a security clearance due to a history of criminal conduct and falsifications on her SF-86 application. The applicant had three separate felony theft offenses between 1994 and 1995. These included credit card fraud in State A in 1994, theft/embezzlement from a bank in State B in November 1994, and grand larceny in January 1995. For the grand larceny conviction, she was sentenced to three years of confinement, suspended for ten years, conditioned on serving 30 days in jail and other requirements.

Her criminal conduct also included a 1994 conviction for theft/embezzlement by a bank employee, for which she received a six-month prison sentence and three years of supervised release. The judge found that her felony conviction and sentence to more than 365 days of confinement triggered the Smith Amendment (10 U.S.C. Sec. 986), which disqualifies individuals from holding a security clearance, despite some demonstrated rehabilitation.

Additionally, the applicant falsified her December 1998 SF-86 by omitting five prior job terminations and a positive marijuana drug test from July 1997. These omissions were deemed willful and material, raising significant concerns about her judgment and trustworthiness. The clearance was denied under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct).

Why the Applicant Was Denied

The applicant was convicted of multiple felony theft offenses, including credit card fraud and grand larceny.
The applicant's felony conviction resulted in a sentence exceeding one year, invoking the Smith Amendment disqualification.
The applicant's omissions on her SF-86 regarding prior terminations and drug use were deemed willful and material.

Conditions Referenced

Disqualifying

DC araisedAllegations or Admission of Criminal Conduct.
DC braisedA Single Serious Crime or Multiple Lesser Offenses.
DC craisedConviction in a Federal or State Court, Including a Court-martial of a Crime and Sentenced to Imprisonment for a Term Exceeding One Year.
DC 2raisedThe Deliberate Omission, Concealment, Falsification or Misrepresentation of Relevant and Material Facts From Any Personnel Security Questionnaire.

Mitigating

MC arejectedThe Criminal Behavior Was Not Recent.The applicant's criminal conduct occurred within a short time frame and was not sufficiently remote.
MC fappliedThere Is Clear Evidence of Successful Rehabilitation.The applicant demonstrated some rehabilitation but not enough to mitigate the disqualifying conditions.

Key Rule Quoted

“"A history or pattern of criminal activity creates doubt about a person's judgement, reliability and trustworthiness."”

Procedural Posture

SOR issuedNov 21, 2001
Answer filedFeb 28, 2002
Hearing heldJun 3, 2002
Decision dateAug 2, 2002

Cite For

Application of the Smith Amendment in Security Clearance Cases
Impact of Felony Convictions on Security Clearance Eligibility
Consideration of Rehabilitation in the Context of Disqualifying Criminal Conduct

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		Employment History		—	—	—

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

Employment History

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant is alleged to have a history of criminal activity that includes three-separate offenses spanning the period of 1994 and 1995. Specifically, she is alleged to have been charged for fraudulent conduct arising out of actions on three separate occasions: (1) she was charged in 1994 in State A with credit card fraud arising out of her alleged stealing of her roommate's credit card, as a result of which she was suspended from her university in about May 1994 and ordered to make restitution; (2) she was arrested and charged in November 1994 in State B for theft/embezzlement by a bank employee (of a local bank), a felony violation of 18 U.S.C. Sec. 656, arising out of her allegedly stealing four checks from a co-worker at a local supermarket and falsely writing these four checks totaling $10,500.00, for which she pleaded guilty and was sentenced to six months imprisonment, and awarded supervised release for three years, subject to mental health counseling, participation in drug treatment, and performing 100 hours of community service work, and (3) she was arrested and charged with grand larceny (a felony) in January 1995, for allegedly stealing and carrying away property from a local retailer valued at $200.00 or more, for which she was later found guilty (in February 1996) and sentenced to confinement for a period of three years (suspended for a term of ten years), conditioned on her serving 30 days in jail, making restitution to the retailer, submitting to DNA testing, paying court costs, performing community service, and remaining on supervised probation.	Against Applicant	Theft or Larceny	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.b	As the result of Applicant's felony conviction and sentence to more than 365 days confinement (actual service of less time notwithstanding), she is alleged to be per se disqualified from having a security clearance granted or renewed by the Department of Defense (DoD), pursuant to 10 U.S.C. Sec. 986, subject to an authorized waiver exception in a meritorious case.	Against Applicant	Theft or Larceny	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.c	Additionally, Applicant is alleged to have falsified her Security Clearance Application (SF-86) of December 1998 by omitting her (a) prior terminations from (I) a federal reserve bank in July 1994 after refusing to sign a counseling form as a result of her failure to comply with her employer's rules, (ii) a local bank in October 1994 due to embezzlement and ensuing arrest, (iii) a local retailer in December 1994 due to theft of merchandise and ensuing criminal charges, (iv) a local supermarket in 1994 due, in part, to her theft of checks from a co-worker of the market, and (v) a vocational medical employer in November 1998 due to pattern misconduct, and (b) prior testing positive for marijuana in a drug test administered in July 1997, as court-required.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant is alleged to have a history of criminal activity that includes three-separate offenses spanning the period of 1994 and 1995. Specifically, she is alleged to have been charged for fraudulent conduct arising out of actions on three separate occasions: (1) she was charged in 1994 in State A with credit card fraud arising out of her alleged stealing of her roommate's credit card, as a result of which she was suspended from her university in about May 1994 and ordered to make restitution; (2) she was arrested and charged in November 1994 in State B for theft/embezzlement by a bank employee (of a local bank), a felony violation of 18 U.S.C. Sec. 656, arising out of her allegedly stealing four checks from a co-worker at a local supermarket and falsely writing these four checks totaling $10,500.00, for which she pleaded guilty and was sentenced to six months imprisonment, and awarded supervised release for three years, subject to mental health counseling, participation in drug treatment, and performing 100 hours of community service work, and (3) she was arrested and charged with grand larceny (a felony) in January 1995, for allegedly stealing and carrying away property from a local retailer valued at $200.00 or more, for which she was later found guilty (in February 1996) and sentenced to confinement for a period of three years (suspended for a term of ten years), conditioned on her serving 30 days in jail, making restitution to the retailer, submitting to DNA testing, paying court costs, performing community service, and remaining on supervised probation.

Against Applicant

Theft or Larceny

Convicted

Admitted

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

(b) evidence of criminal conduct, regardless of charge or conviction

(c) currently on parole or probation

—

1.b

As the result of Applicant's felony conviction and sentence to more than 365 days confinement (actual service of less time notwithstanding), she is alleged to be per se disqualified from having a security clearance granted or renewed by the Department of Defense (DoD), pursuant to 10 U.S.C. Sec. 986, subject to an authorized waiver exception in a meritorious case.

Against Applicant

Theft or Larceny

Convicted

Admitted

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

(b) evidence of criminal conduct, regardless of charge or conviction

(c) currently on parole or probation

—

1.c

Additionally, Applicant is alleged to have falsified her Security Clearance Application (SF-86) of December 1998 by omitting her (a) prior terminations from (I) a federal reserve bank in July 1994 after refusing to sign a counseling form as a result of her failure to comply with her employer's rules, (ii) a local bank in October 1994 due to embezzlement and ensuing arrest, (iii) a local retailer in December 1994 due to theft of merchandise and ensuing criminal charges, (iv) a local supermarket in 1994 due, in part, to her theft of checks from a co-worker of the market, and (v) a vocational medical employer in November 1998 due to pattern misconduct, and (b) prior testing positive for marijuana in a drug test administered in July 1997, as court-required.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Admitted

(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

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES