ISCR Case 01-08559.h1

Case Headnote

ISCR Case No. 01-08559.h1

grantedMar 26, 2002· Hon. Roger C. Wesley· hearing

Summary

A 26-year-old computer programmer was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons alleged the applicant falsified his SF-86 and a subsequent interview by omitting two prior charges: a 1995 charge for permitting an intoxicated driver to operate his vehicle, which was dismissed, and a 1999 charge for assault and battery of a family household member, which was later nolle prosequi. The applicant did disclose a 1996 DUI arrest, for which he was found guilty and received a suspended jail sentence.

The judge determined that the applicant's omissions on the SF-86 and during the interview stemmed from a sincere misunderstanding of the application questions, rather than an intent to deceive. The only criminal conduct considered probative was the 1996 DUI. This incident was mitigated by the passage of time and the applicant's demonstrated maturity since then.

Further supporting the applicant's case, he was highly regarded by both family and colleagues, which bolstered his credibility and trustworthiness. Based on these mitigating factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant's omissions were determined to be the result of a sincere misunderstanding of the SF-86 question.
The only probative criminal conduct was a 1996 DUI, which was mitigated by time and demonstrated maturity.
The applicant was highly regarded by family and colleagues, supporting his credibility and trustworthiness.

Conditions Referenced

Disqualifying

DC 2raisedDeliberate Omission, Concealment, Falsification or Misrepresentation of Relevant and Material Facts
DC 5notedA Pattern of Dishonesty or Rule Violations

Mitigating

MC 1appliedThe Information Was Unsubstantiated or Not Pertinent to a Determination of Judgment, Trustworthiness, or Reliability
MC 2appliedThe Crime Was an Isolated Incident
MC 5appliedThe Individual Has Taken Positive Steps to Significantly Reduce or Eliminate Vulnerability to Coercion, Exploitation, or Duress
MC 6appliedThere Is Clear Evidence of Successful Rehabilitation

Key Rule Quoted

“Even obvious omissions of material facts may be extenuated where circumstances indicate the declarant was under some mistaken impression or understanding when he executed a government form.”
— Raybourne v. Gulf Atlantic Towing Corp., 276 F.2d 90, 92 (4th Cir. 1960)

Procedural Posture

SOR issuedSep 20, 2001
Answer filedSep 26, 2001
Hearing heldFeb 12, 2002
Decision dateMar 26, 2002

Cite For

Mitigation of Omissions in SF-86 Due to Misunderstanding
Credibility Assessments Based on Personal Character References
Isolated Incidents of Criminal Conduct Mitigated by Time and Maturity

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
1.a	Applicant is alleged to have falsified his security clearance application (SF-86) by omitting two charges: one in October 1995 for permitting an intoxicated driver to operate his vehicle, which became involved in an accident (charge dismissed), and another in June 1999 for assault and battery of a family household member (subsequently nolle prosequi), subject to a court order of no contact with the victim).	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Admitted	—	(a) prompt, good-faith correction before being confronted (b) omission/refusal followed advice of counsel; later cooperated fully	Claimed Explanation of Omission Credible
1.b	Additionally, Applicant is alleged to have omitted his 1995 and 1999 charges in a subsequently arranged DSS interview of August 2000, while disclosing his 1996 DUI arrest.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Admitted	—	(a) prompt, good-faith correction before being confronted (b) omission/refusal followed advice of counsel; later cooperated fully	Claimed Explanation of Omission Credible

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Applicant is alleged to have falsified his security clearance application (SF-86) by omitting two charges: one in October 1995 for permitting an intoxicated driver to operate his vehicle, which became involved in an accident (charge dismissed), and another in June 1999 for assault and battery of a family household member (subsequently nolle prosequi), subject to a court order of no contact with the victim).

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Admitted

—

(a) prompt, good-faith correction before being confronted

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

Claimed

Explanation of Omission Credible

1.b

Additionally, Applicant is alleged to have omitted his 1995 and 1999 charges in a subsequently arranged DSS interview of August 2000, while disclosing his 1996 DUI arrest.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Admitted

—

(a) prompt, good-faith correction before being confronted

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

Claimed

Explanation of Omission Credible

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was arrested and charged with DUI and driving on a suspended license in October 1996, for which he was found guilty of DUI and sentenced to 60 days in jail (suspended).	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (b) pressured/coerced and unlikely to recur absent that pressure (c) no reliable evidence the individual committed the offense	Credited Passage of Time Credited No Subsequent Offenses Credited Rehabilitation Evidence
2.b	In June 1999, Applicant was charged with assault and battery of a family household member, which was later nolle prosequi.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (b) pressured/coerced and unlikely to recur absent that pressure	Credited Passage of Time Credited No Subsequent Offenses
2.c	In October 1995, Applicant was cited for permitting an intoxicated driver to operate his vehicle, which resulted in an accident; the charge was dismissed.	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (b) pressured/coerced and unlikely to recur absent that pressure	Credited Passage of Time Credited No Subsequent Offenses

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

2.a

Applicant was arrested and charged with DUI and driving on a suspended license in October 1996, for which he was found guilty of DUI and sentenced to 60 days in jail (suspended).

For Applicant

DUI or DWI Criminal

Convicted

Admitted

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

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

(b) pressured/coerced and unlikely to recur absent that pressure

(c) no reliable evidence the individual committed the offense

Credited

Passage of Time

Credited

No Subsequent Offenses

Credited

Rehabilitation Evidence

2.b

In June 1999, Applicant was charged with assault and battery of a family household member, which was later nolle prosequi.

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Admitted

—

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

(b) pressured/coerced and unlikely to recur absent that pressure

Credited

Passage of Time

Credited

No Subsequent Offenses

2.c

In October 1995, Applicant was cited for permitting an intoxicated driver to operate his vehicle, which resulted in an accident; the charge was dismissed.

For Applicant

Unspecified Criminal Conduct

Dismissed or Nolle Prossed

Admitted

—

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

(b) pressured/coerced and unlikely to recur absent that pressure

Credited

Passage of Time

Credited

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

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES