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ISCR Case 01-21080.h1 — CASE

ISCR Case 01-21080.h1denied

Case Headnote

ISCR Case No. 01-21080.h1

deniedMar 7, 2003· Hon. Joseph Testan· hearing

Summary

A 29-year-old purchasing agent for a defense contractor was denied a security clearance under Guideline J (Criminal Conduct) due to an involuntary manslaughter conviction from 1994. The conviction stemmed from a drunk driving incident where the applicant, while intoxicated, lost control of his vehicle and struck a tree, resulting in the death of his passenger.

In October 1995, the applicant was sentenced to five years in prison, with all but 90 days suspended, and placed on five years of probation. The applicant admitted to poor judgment and took full responsibility for his actions. Since the incident, he earned a B.S. degree and rarely consumes alcohol, never driving after drinking.

Despite demonstrating rehabilitation and the judge recommending a waiver, the clearance was denied. The denial was based on the serious nature of the criminal conduct, which resulted in a fatality, and the statutory restrictions outlined in 10 U.S.C. 986, which precluded clearance approval under the circumstances of the applicant's conviction.

Why the Applicant Was Denied

The applicant's criminal conduct was serious and resulted in the death of another person.
10 U.S.C. 986 prohibits granting a security clearance under the circumstances of the applicant's conviction.

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.A10.1.3.2appliedThe Crime Was an Isolated Incident.
E2.A10.1.3.4appliedThe Factors Leading to the Violation Are Not Likely to Recur.
E2.A10.1.3.6appliedThere Is Clear Evidence of Successful Rehabilitation.

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedJul 12, 2002
Answer filedJul 24, 2002Applicant elected to have the case determined on a written record.
Hearing held—No hearing; case determined on written record.
Decision dateMar 7, 2003

Cite For

Impact of 10 U.S.C. 986 on Security Clearance Decisions
Mitigating Factors for Isolated Criminal Conduct
Consideration of Rehabilitation in Security Clearance Cases

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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant's criminal conduct involved a serious incident of involuntary manslaughter due to driving under the influence, resulting in the death of a passenger. Although the judge recognized mitigating factors such as the isolated nature of the incident and evidence of rehabilitation, the application of 10 U.S.C. 986 led to a denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	On a winter evening in 1994, applicant was driving home after spending a night at a bar with friends. Applicant, who was intoxicated, lost control of the car and hit a tree, killing his passenger.	Against Applicant	Homicide	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(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 (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Acknowledgment and Remorse Credited No Subsequent Offenses Credited Substance Treatment Completed
1.b	As a result of the accident, applicant was charged with Involuntary Manslaughter. In October 1995, he was sentenced to five years in prison, all but 90 days suspended, and placed on probation for five years.	Against Applicant	Homicide	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(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 (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Acknowledgment and Remorse Credited No Subsequent Offenses Credited Substance Treatment Completed
1.c	Applicant admits 'to having poor judgment,' and takes 'full responsibility for (his) actions.'	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(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 (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Acknowledgment and Remorse
1.d	Since the accident he has earned his B.S. degree. Applicant rarely consumes alcohol, but when he does, he never drives a vehicle.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(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 (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Substance Treatment Completed Credited No Subsequent Offenses

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: March 7, 2003 In Re: --------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 01-21080 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Applicant's criminal conduct would have been mitigated if not for 10 U.S.C 986. Clearance is denied, but waiver recommended.

STATEMENT OF CASE

On July 12, 2002, 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 July 24, 2002, and elected to have his case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's written case on or about August 13, 2002. Applicant did not file a response to the Government's written case. The case was assigned to me on October 16, 2002.

FINDINGS OF FACT

Applicant is 29 years of age. He is employed as a purchasing agent by a defense contractor. On a winter evening in 1994, applicant was driving home after spending a night at a bar with friends. Applicant, who was intoxicated, lost control of the car and hit a tree, killing his passenger. As a result of his injuries, applicant spent about six weeks in the hospital. Applicant ended up losing the use of one of his hands. As a result of the accident, applicant was charged with Involuntary Manslaughter. In October 1995, he was sentenced to five years in prison, all but 90 days suspended, and placed on probation for five years. He was also ordered to perform 320 hours of community service and to attend therapy with the alcohol/drug department. Applicant performed the community service and completed the alcohol/drug therapy. Applicant admits "to having poor judgment," and takes "full responsibility for (his) actions." He believes that he has paid his debt to society for this isolated incident of poor judgment that occurred when he was 21 years old. Since the accident he has earned his B.S. degree. Applicant rarely consumes alcohol, but when he does, he never drives a vehicle.

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.A10.1.3.2: The crime was an isolated incident. 3. E2.A10.1.3.4: The factors leading to the violation are not likely to recur. 4. E2.A10.1.3.6: There is clear evidence of successful rehabilitation. In addition to the formal Guidelines discussed above, 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 during one evening in 1994, applicant exercised extremely poor judgment. Unfortunately, that single lapse of judgment had extremely tragic consequences. Not only did applicant's friend die as a result of applicant's irresponsible conduct, a fact that applicant has to live with every day for the rest of his life, but applicant lost the use of a hand. Despite the enormity of the tragedy, the fact remains that applicant's irresponsible conduct was an isolated incident that occurred over seven years ago. He fully understands that he alone was responsible for the accident, and he is committed to avoiding a recurrence by no longer drinking and driving. These facts, which lead to the application of the four mitigating factors referenced above, lead me to conclude that there is little or no chance 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

FOOTNOTES

01-21080.h1 FOR GOVERNMENT Jonathan A. Beyer, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-21080.h1.html[7/2/2021 2:26:09 PM] 01-21080.h1