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ISCR Case 01-17852.h1 — CASE

ISCR Case 01-17852.h1denied

Case Headnote

ISCR Case No. 01-17852.h1

deniedFeb 28, 2002· Hon. Joseph Testan· hearing

Summary

A 42-year-old former Army officer was denied a security clearance due to concerns under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The denial stemmed from his 1996 general court-martial conviction for rape, sodomy by force and without consent, and indecent assault. He was sentenced to forfeiture of pay, dismissal, and confinement, which was reduced to thirty months.

The applicant had served honorably from 1982 until November 1995, with strong Officer Evaluation Reports and numerous letters of support. While the judge acknowledged the applicant's belief of unjust conviction, this could not be challenged during the DOHA hearing. The judge also noted the isolated nature of the conduct, its occurrence over six years prior, and the applicant's exemplary lifestyle since his 1996 release from prison, concluding there was little chance of future poor judgment.

Despite these mitigating factors, the application was denied. The judge found the criminal conduct inexcusable and indicative of extremely poor judgment. Ultimately, the legal restrictions imposed by 10 U.S.C. 986 prevented the granting of a security clearance, leading to the denial.

Why the Applicant Was Denied

The applicant was convicted of serious criminal offenses, including rape and sodomy, which raised significant security concerns.
The judge found that the applicant's conduct was inexcusable and demonstrated extremely poor judgment.
The legal restrictions of 10 U.S.C. 986 prevented the granting of a security clearance despite mitigating factors.

Conditions Referenced

Disqualifying

E2.A10.1.2.1raisedCriminal Conduct
E2.A10.1.2.2raisedA Single Serious Crime or Multiple Lesser Offenses

Mitigating

E2.A10.1.3.1appliedThe Criminal Behavior Was Not Recent
E2.A10.1.3.4appliedThe Factors Leading to the Violation Are Not Likely to Recur

Key Rule Quoted

“The adjudicative process is the careful weighing of a number of variables known as the whole person concept.”
— Directive, Section E2.2.1.

Procedural Posture

SOR issuedOct 15, 2001
Answer filedNov 12, 2001
Hearing heldFeb 12, 2002
Decision dateFeb 28, 2002

Cite For

Impact of Serious Criminal Convictions on Security Clearance Eligibility
Application of Mitigating Conditions in Cases of Past Criminal Conduct
Consideration of the Whole Person Concept in Security Clearance Determinations

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 D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant was denied a security clearance due to serious criminal conduct involving sexual acts with an intoxicated woman, which resulted in multiple convictions including rape. Despite evidence of good character and rehabilitation since the incident, the judge ruled that granting a clearance was not consistent with national interest.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	Applicant engaged in sexual acts with the woman who was too intoxicated to stop him.	Against Applicant	Criminal Sexual Conduct	Denied	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted (b) a pattern of compulsive, self-destructive, or high-risk sexual behavior that the individual is unable to stop	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

Bond Amendment: the decision notes incarceration over one year or a dishonorable discharge — a statutory bar to SCI / Special Access / Restricted Data eligibility absent a waiver.

The judge ruled against the applicant regarding criminal conduct, specifically related to serious offenses including rape and sodomy. Despite evidence of good character and rehabilitation, the applicant's past criminal behavior was deemed inconsistent with national interest, leading to a denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was charged with (1) Rape, a violation of Article 120 of the Uniform Code of Military Justice (UCMJ), (2) Sodomy by force and without consent, a violation of Article 125 of the UCMJ, and (3) Indecent Assault, a violation of Article 134 of the UCMJ. After a trial by general court-martial in 1996, he was found guilty of all four offenses.	Against Applicant	Sexual Offense Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.b	Applicant was sentenced to forfeiture of all pay and allowances, confinement for nine years, and dismissal. The convening authority upheld the sentence except for the period of confinement, which was reduced to thirty months.	Against Applicant	Sexual Offense Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.c	Although it is obvious that applicant believes he was unjustly convicted, he is legally barred from challenging his conviction during the DOHA hearing.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.d	The evidence establishes that applicant went on active duty with the United States Army as an officer in 1982. His Officer Evaluation Reports and numerous letters of support admitted into evidence establish that he served honorably and with distinction until that fateful night in November 1995.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.e	Given this fact, the isolated nature of the conduct, the fact that it occurred over six years ago, and the fact that applicant has led an exemplary lifestyle since being released from prison in 1996, I conclude that there is little or no chance that applicant will exercise such poor judgment in the future.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

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

DATE: February 28, 2002

In Re: -------------------- SSN: ------------ Applicant for Security Clearance

ISCR Case No. 01-17852 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

STATEMENT OF CASE

On October 15, 2001, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. Applicant responded to the SOR in writing on November 12, 2001. The case was assigned to the undersigned on January 2, 2002. A Notice of Hearing was issued on January 18, 2002, and the hearing was held on February 12, 2002. The transcript was received on February 20, 2002.

FINDINGS OF FACT

Applicant is forty-two years of age. He has been offered a job with a defense contractor on the condition that he first receive a security clearance. Appellant went on active duty with the United States Army as an officer in 1982 following graduation from a university. The evidence establishes that he served honorably and with distinction (1) until November1995. Based on an early morning incident at a friend's house in November 1995, (2) applicant was charged with (1) Rape, a violation of Article 120 of the Uniform Code of Military Justice (UCMJ), (2) Sodomy by force and without consent, a violation of Article 125 of the UCMJ, and (3) Indecent Assault, a violation of Article 134 of the UCMJ. Based on a false statement he made about the incident, he was also charged with Conduct Unbecoming an Officer, a violation of Article 133 of the UCMJ. After a trial by general court-martial in 1996, he was found guilty of all four offenses. In April 1996, he was sentenced to forfeiture of all pay and allowances, confinement for nine years, and dismissal. The convening authority upheld the sentence except for the period of confinement, which was reduced to thirty months. With the reduction in the period of confinement, applicant became eligible for parole after serving ten months. He was granted parole at his first parole hearing in April 1997. Although it is obvious that applicant believes he was unjustly convicted, he is legally barred from challenging his conviction during the DOHA hearing. Applicant offered into evidence over 100 letters of support from various people including family members, acquaintances, neighbors, close friends, and fellow Army officers. I have carefully reviewed these letters. To the extent some of these letters claim that applicant was innocent of the charges, they were not considered. The remainder of the letters were considered, and in essence, they describe applicant as a truly incredible individual in terms of his good judgment, reliability and trustworthiness (Exhibits B, C, D and E). Many of these letters claim that the conduct applicant was charged with and convicted of is completely out of character for him. Of particular significance were the recently written letters of support recommending that he be granted a security clearance from the two retired colonels and three lieutenant colonels who served with applicant, and the letters attesting to applicant's current good judgment, reliability and trustworthiness from his current supervisor, a fellow member of the high school booster club, and a member of the local school board (Exhibit E). An Army officer who has known applicant for fifteen years appeared at the hearing and testified that he "would stake his life on (applicant's) character" (TR at 15).

POLICIES

Enclosure 2 of the Directive sets forth Guidelines (divided into conditions that could raise security concerns and conditions that could mitigate security concerns) which must be followed by the Administrative Judge. Based on the foregoing Findings of Fact, the following Guidelines are applicable: Criminal Conduct Disqualifying Conditions 1. E2.A10.1.2.1: Criminal conduct. 2. E2.A10.1.2.2: A single serious crime or multiple lessor offenses. Mitigating Conditions 1. E2.A10.1.3.1: The criminal behavior was not recent. 2. E2.A10.1.3.4: The factors leading to the violation are not likely to recur. In addition to the formal Guidelines discussed above, the Enclosure 2 of the Directive provides that each decision should take into consideration the following factors: The nature, extent and seriousness of the conduct; The circumstances surrounding the conduct, to include knowledgeable participation; The frequency and recency of the conduct; The individual's age and maturity at the time of the conduct; The voluntariness of participation; The presence or absence of rehabilitation and other pertinent behavioral changes; The motivation for the conduct; The potential for pressure, coercion, exploitation, or duress; and The likelihood of continuation or recurrence.

CONCLUSION

The evidence establishes that applicant went on active duty with the United States Army as an officer in 1982. His Officer Evaluation Reports and numerous letters of support admitted into evidence establish that he served honorably and with distinction until that fateful night in November 1995. Despite the fact that applicant and many of his supporters felt he was not treated fairly by the military justice system, the fact remains that he was convicted of four very serious charges. Applicant's conduct during the night in question, and his unwillingness to initially tell the truth about the incident, (3) are inexcusable. Even if he sincerely believed the woman was interested in him, he had no right to take advantage of her when he knew she was too intoxicated to resist his sexual advances. By doing so, he exercised extremely poor judgment, and he compounded the poor judgment when he failed to tell the truth about his actions when interviewed in January 1996. Although applicant's criminal conduct militates against the granting of a security clearance, his long track record of good judgment, reliability and trustworthiness, both before and after the incident, which has been so clearly demonstrated by the evidence in the record, must be considered under the "whole person" concept discussed in the Directive. (4) In short, applicant's lapses in judgment relating to the incident, albeit major lapses, must be considered in the context of his otherwise twenty years of highly responsible conduct. And, when applicant's conduct is viewed in this context, it becomes apparent that his criminal conduct was completely out of character for him. Given this fact, the isolated nature of the conduct, the fact that it occurred over six years ago, and the fact that applicant has led an exemplary lifestyle since being released from prison in 1996, I conclude that there is little or no chance that applicant will exercise such poor judgment in the future. If it were not for 10 U.S.C. 986, I would conclude that it is clearly consistent with the national interest to grant applicant access to classified information at the present time. However, in light of this statute, I must conclude that it is not clearly consistent with the national interest to grant applicant a security clearance. However, I recommend further consideration of this case for a waiver of 10 U.S.C. 986.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for applicant. ____________________________ Joseph Testan Administrative Judge 1. See, Exhibit A. 2. Applicant and an acquaintance spent the night at the house of mutual friends. They fell asleep in the same bed. Applicant awoke during the night and engaged in sexual acts with the woman who was too intoxicated to stop him. A more detailed factual summary of the incident can be found in Exhibit 2. 3. See, Exhibit 2, page 5, footnote 1. 4. Directive, Section E2.2.1., "The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination."

FOOTNOTES

01-17852.h1 FOR GOVERNMENT Martin H. Mogul, Department Counsel FOR APPLICANT Matthew W. Borowiec, Esq. file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-17852.h1.html[7/2/2021 2:24:15 PM] 01-17852.h1