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ISCR Case 01-21417.h1 — CASE

ISCR Case 01-21417.h1denied

Case Headnote

ISCR Case No. 01-21417.h1

deniedMar 24, 2003· Hon. Darlene Lokey Anderson· hearing

Summary

A 50-year-old Plant Protection Officer was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons alleged the applicant intentionally falsified material aspects of his personal background and engaged in criminal conduct.

Specifically, on December 3, 1996, the applicant was arrested and charged with felony violations of fraudulently obtaining aid for children and two counts of perjury. He was sentenced to a suspended five-day jail term, ordered to pay $2,800.00 in restitution, perform 80 hours of community service, and received three years of probation. Successful fulfillment of these conditions would reduce the charges from felonies to misdemeanors.

While a child support judgment was mitigated, the security clearance was ultimately denied. The decision cited the applicant's criminal conduct, specifically perjury and welfare fraud, as demonstrating poor judgment and unreliability, which negatively impacted his eligibility for a security clearance.

Why the Applicant Prevailed

The Applicant's failure to disclose the judgment was found to be based on a reasonable belief that it had been rescinded.
The judgment in question was entered after the Applicant completed his security clearance application.

Conditions Referenced

Disqualifying

J1raisedAllegations or Admissions of Criminal Conduct, Regardless of Whether the Person Was Formally Charged
J2raisedA Single Serious Crime or Multiple Lesser Offenses

Mitigating

E1notedNone
J1notedNone

Key Rule Quoted

“The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk.”

Procedural Posture

SOR issuedJun 19, 2002
Answer filedJul 8, 2002
Hearing heldFeb 20, 2003Hearing rescheduled from January 30, 2003.
Decision dateMar 24, 2003

Cite For

Mitigation of Personal Conduct Under Guideline E Based on Reasonable Belief of Judgment Rescission
Seriousness of Criminal Conduct Under Guideline J Leading to Denial of Clearance
Impact of Past Criminal Behavior on Current Security Clearance Eligibility

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant did not intentionally conceal a judgment against him on his security clearance application, ruling in favor of the applicant on this allegation. However, the applicant's criminal conduct, including perjury and fraud, was found to be serious and not mitigated, leading to a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	The Government alleges that the Applicant is ineligible for clearance because he intentionally falsified material aspects of his personal background during the clearance screening process.	For Applicant	Falsification Security FormNOT DELIBERATE	Other	Denied	—	—	—
2.a	The Applicant has engaged in criminal conduct.	Against Applicant	Questionable Judgment General	—	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—
2.b	The Applicant has engaged in criminal conduct.	Against Applicant	Questionable Judgment General	—	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—

Descriptive standardized rendering of a decided public case (Guideline E). 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

The judge found that the Applicant engaged in criminal conduct, specifically perjury and fraud related to welfare assistance. The judge ruled against the Applicant on these allegations, concluding that the seriousness of the offenses and the lack of sufficient evidence of rehabilitation warranted a denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2	The Government alleges that the Applicant is ineligible for clearance because he has engaged in criminal conduct.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	—	—	—
2.a	On December 3, 1996, the Applicant was arrested and charged with (1) violation of Welfare and Institutions Code-Fraudulently Obtaining Aid For Children and (2) Perjury, two counts, all charges felony violations.	Against Applicant	Fraud or Deception Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
2.b	The Applicant was sentenced to five days in jail, which was suspended, he was ordered to make restitution in the amount of $2,800.00, perform 80 hours of community service, given three years probation, and if the set conditions were successfully fulfilled, the charges would be reduced from a felony to a misdemeanor.	Against Applicant	Fraud or Deception Criminal	Convicted	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: March 24, 2003

In Re:

------------------------

SSN: -----------------

Applicant for Security Clearance

ISCR Case No. 01-21417

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

SYNOPSIS

The Applicant's failure to disclose a judgment entered against him within the last seven years on his security clearance has been mitigated. His felony arrest in 1996 has not been mitigated by sufficient evidence of reform and rehabilitation. Clearance is denied.

STATEMENT OF CASE

On June 19, 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 the 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 the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on July 8, 2002, and requested a hearing before a DOHA Administrative Judge. This case was assigned to the undersigned on November 27, 2002. A notice of hearing was issued on December 10, 2002, scheduling the hearing for January 30, 2003. On January 17, 2003, Applicant's counsel requested a 30 day continuance based upon good cause. The parties stipulated to a 21 day continuance and the hearing was rescheduled for February 20, 2003. At the hearing the Government presented eight exhibits. The Applicant presented ten exhibits. The Applicant called two witnesses and testified on his own behalf. The Applicant submitted one Post Hearing Exhibit. The official transcript (Tr.) was received on March 6, 2003.

FINDINGS OF FACT

The Applicant is 50 years old. He is employed as a Plant Protection Officer by a defense contractor and is applying for a security clearance in connection with his employment.

The Government opposes the Applicant's request for a security clearance, on the basis of allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR:

Paragraph 1 (Guideline E - Personal Conduct). The Government alleges that the Applicant is ineligible for clearance because he intentionally falsified material aspects of his personal background during the clearance screening process.

The Applicant completed a Security Clearance Application (Standard Form 86) dated August 3, 1999. Question 37, asked, "In the last seven years have you had any judgments against you that have not been paid?" The Applicant answered "No". (See, Government Item 1). This was a false statement. The truth is that the Applicant had one judgment entered against him in June 1997, for a child support arrearage, in the amount of $7,918.00, that was unpaid at the time he completed the application. (See, Government Exhibit 7). In late 1997, the Applicant's wages were garnished for about three months. His federal and state tax refunds were intercepted in the Spring of 2000, and were applied to the arrearage.

The Applicant explained that at the time he completed the security clearance application, he was not aware of the judgment. He explained that the judgment arose out of a situation where his wife obtained welfare based on her representations to Aid to Families with Dependent Children (AFDC) that she had custody of the children of their marriage. The truth is that the Applicant had legal custody of these children at all pertinent times. The Applicant testified that he went to court with documents, including his children's report cards showing his signature, to prove that he had custody of the children. He turned the paperwork over to the court clerk under the belief that the judgment had been rescinded. When he met with the Special Agent from the Defense Security Service (DSS) on arch 17, 2000, he was first again confronted with the fact that the judgment still existed. Following his interview, the Applicant then checked it out for himself and confirmed the fact that the judgment still existed.

In December 2002, the Applicant's attorney negotiated a payment arrangement with the county on behalf of the Applicant which provided that the Applicant make payments of $160.00 monthly, coming automatically out of his payroll check. At one time he owed as much as $17,000.00, but has now reduced the debt to $9,000.00. (Tr. pp. 70-76).

In his sworn statement to DSS on March 17, 2000, the Applicant explained that he did not disclose the judgment on his security clearance application because he did not think the judgment was correct and that he was not responsible for the child support claim. He was even assured by the court clerk that there was some problem with it, and it appeared that the Applicant had been wronged. The court clerk indicated that he would give his information and documents to a caseworker to be straightened out. (See, Government Exhibit 4).

Under the particular facts of this case, I find that the Applicant was under the mistaken belief that the judgment was rescinded. He is not an attorney but a pro se individual who could reasonably have believed that by taking his children's report cards to the court clerk, the judgment might have been affected in some way and even rescinded. There is no evidence in the record that after he submitted these documents to the court, that he was put on notice that the judgment still existed. I find his excuse believable. Accordingly, I find that the Applicant did not intentionally or deliberately conceal this judgment from the Government on his security clearance application.

Allegation 1.(a).2, set forth in the SOR is also found for the Applicant as the judgment in question was not entered until September 27, 1999, over a month after the Applicant completed his security clearance application on August 3, 1999.

Paragraph 2 (Guideline J - Criminal Conduct). The Government alleges that the Applicant is ineligible for clearance because he has engaged in criminal conduct.

On December 31, 1989, the Applicant and his family moved from City A to City B in search of a new start on life. His wife needed to get away from the circle of friends who influenced her drinking problem. In City B, however, he was unable to find regular full time employment. He found two part-time minimum wage jobs, but was still unable to make ends meet. He and his wife separated, and he and his children were forced to move in with his sister. After a short while, he could no longer stay with his sister and he could not afford to feed, clothe or shelter his children without some assistance. The Applicant admitted that he lied under oath, so that his children would obtain a greater amount of welfare assistance and food stamps than they were otherwise entitled to. He admitted that he committed perjury and fraud. In essence, he applied for and received AFDC welfare assistance and food stamps and did not report all of his income and earnings. In late 1993, the Applicant moved back to City A and took a job that paid him for as many as thirty two hours of work. He then reported his income and stopped taking welfare assistance. On December 3, 1996, the Applicant was arrested and charged with (1) violation of Welfare and Institutions Code- Fraudulently Obtaining Aid For Children and (2) Perjury, two counts, all charges felony violations. He was sentenced to five days in jail, which was suspended, he was ordered to make restitution in the amount of $2,800.00, perform 80 hours of community service, given three years probation, and if the set conditions were successfully fulfilled, the charges would be reduced from a felony to a misdemeanor. On December 21, 1998, the Applicant was sentenced to 45 days in jail for failing to make restitution. Imposition of sentence was stayed until February 26, 1999, at which time the Applicant paid the restitution in full. (See, Government Exhibits 2,3, 4 and 5).

The Applicant testified that he has made full restitution and the charges were reduced to misdemeanors. An affidavit submitted by the Applicant's attorney indicates that the Applicant's probation on this offense was terminated in December 2000. (See, Applicant's Post Hearing Exhibit).

Mitigation.

The Applicant's present supervisor, who has known the Applicant for the past four years, testified that the Applicant is honest, trustworthy and extremely responsible on the job. He can find no reason why the Applicant should not be eligible for a security clearance. (Tr. pp. 31-35).

The Applicant's daughter whom he adopted when she was one years old, and who is now 23 years old, testified that she has lived with the Applicant her entire life. They have never lived lavishly and only had the simple material things they needed. The Applicant has been her sole financial support, and he has always done all of the domestic duties in the home for her and her brother. She moved away in 1999. (Tr. pp. 39-46). The Applicant is obviously well respected by his daughter.

POLICIES

Enclosure 2 of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case:

Guideline E (Personal Conduct)

Condition that could raise a security concern:

None.

Conditions that could mitigate security concerns:

None.

Guideline J (Criminal Conduct)

Conditions that could raise a security concern:

1. Allegations or admissions of criminal conduct, regardless of whether the person was formally charged;

2. A single serious crime or multiple lesser offenses.

Conditions that could mitigate security concerns:

None.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. 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." The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

CONCLUSION

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in instances of dishonesty which demonstrates poor judgment or unreliability.

It is the Government's responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant's conduct and the continued holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or outweigh the Government's case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him a security clearance.

In this case the Government has met its initial burden of proving that the Applicant engaged in criminal conduct (Guideline J). This evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility.

Considering all of the evidence, the Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case.

As previously discussed, I have reviewed the Applicant's excuse for not providing information concerning his 1997 judgment on his application, and find it credible. Accordingly, Guideline E, (Personal Conduct) is found for the Applicant. On the other hand, the Applicant's criminal charges and convictions for Obtaining Aid by Fraud and perjury are serious offenses that cannot be ignored. The Applicant violated the law because his earnings had fallen to what he considered to be poverty level and he could not afford to feed himself and his two children or provide for their general support. However, under any circumstances, no matter how desperate one may get, this reason does not justify his criminal actions. He lied under oath on a Government document, committing perjury and fraudulently applied for and received welfare and food stamps for himself and his family that he was not entitled to for more than two years. Although the incident occurred almost ten years ago, he was charged and convicted just five years ago, and only completed his probation for the offense in December 2000. The nature of this offense is so serious, more time in needed to ensure the Government that the Applicant is sufficiently trustworthy to access classified information.

On balance, it is concluded that the Applicant has failed to overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraph 2 of the Government's Statement of Reasons.

FORMAL FINDINGS

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: For the Applicant.

Subpara. 1.a.: For the Applicant.

Paragraph 2: Against the Applicant.

Subpara. 2.a.: Against the Applicant.

Subpara. 2.b.: 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 the Applicant.

Darlene Lokey Anderson

Administrative Judge

FOOTNOTES

01-21417.h1 FOR GOVERNMENT Melvin A. Howry, Department Counsel FOR APPLICANT Frederick Harold Alschuler, Attorney At Law file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-21417.h1.html[7/2/2021 2:26:32 PM] 01-21417.h1