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ISCR Case 01-25608.h1 — CASE

ISCR Case 01-25608.h1denied

Case Headnote

ISCR Case No. 01-25608.h1

deniedMar 7, 2003· Hon. Joseph Testan· hearing

Summary

A 42-year-old applicant was denied a security clearance under Guidelines A (Allegiance), E (Personal Conduct), and J (Criminal Conduct) due to a history of felony convictions and falsifying enlistment documents. In 1979, the applicant was arrested, charged, and convicted of felony Theft, 2nd degree, and Taking a Motor Vehicle Without Permission of Owner, receiving a five-year prison sentence. His parole was revoked twice for violations of its conditions.

Later, in 1995, the applicant received an Article 15 for Falsifying an Official Statement and Fraudulent Enlistment. These charges stemmed from his failure to disclose his arrest record on his enlistment papers when he joined the Army in 1994.

The denial was based on the applicant's history of criminal conduct and dishonesty, which was deemed to adversely affect his judgment and trustworthiness. Despite the passage of time since these offenses, the applicant failed to provide credible evidence from independent sources to demonstrate reformation or reliability, leading to the conclusion that he could not be trusted with classified information.

Why the Applicant Was Denied

The applicant has a history of felony convictions and dishonesty that adversely affects his judgment and trustworthiness.
The applicant did not provide credible evidence from independent sources to demonstrate reformation or reliability.
The passage of time since the criminal conduct was insufficient to mitigate the security concerns.

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.

Key Rule Quoted

“The evidence establishes that in 1979, applicant was convicted of two felonies and sentenced to five years in prison.”

Procedural Posture

SOR issuedSep 23, 2002
Answer filedOct 2, 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 Past Criminal Conduct on Security Clearance Eligibility
Importance of Credible Evidence of Reformation
Reliability and Trustworthiness Standards for Access to Classified Information

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 A (Allegiance to the United States) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant's criminal history, including felony convictions and falsification of enlistment documents, raised significant concerns regarding his reliability and trustworthiness. Despite the passage of time since the criminal conduct, the applicant failed to provide credible evidence of reform, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶4)	Mitigating applied (¶5)	Mitigation
1.a	Criminal conduct.	Against Applicant	Unspecified Allegiance Concern	Unknown	(a) involvement in, support of, training to commit, or advocacy of any act of sabotage, espionage, treason, terrorism, or sedition against the United States (b) association or sympathy with persons who are attempting to commit, or who are committing, any of the above acts	(a) the individual was unaware of the unlawful aims of the individual or organization and severed ties upon learning of these	—

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant regarding personal conduct concerns, specifically related to criminal conduct and falsification of enlistment papers. The applicant's past criminal activity and failure to provide credible evidence of reform led to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In 1979, applicant was arrested and charged with (1) Theft, 2nd degree and (2) Taking a Motor Vehicle Without Permission of Owner. Both offenses were felonies. He was convicted of both charges and sentenced to five years in prison. Applicant was paroled on two occasions, but each time his parole was revoked for violations of his parole conditions.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	(a) prompt, good-faith correction before being confronted	—
1.b	In 1995, applicant received an Article 15 for Falsifying an Official Statement, Fraudulent Enlistment. The charges were based on applicant's failure to disclose his arrest record on his enlistment papers when he joined the Army in 1994.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	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 applicant's criminal conduct, including felony theft and falsifying enlistment papers, was found to adversely affect his judgment and trustworthiness. Despite the passage of time since the offenses, the applicant failed to provide credible evidence of rehabilitation, leading to a denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In 1979, applicant was arrested and charged with (1) Theft, 2nd degree and (2) Taking a Motor Vehicle Without Permission of Owner. Both offenses were felonies. He was convicted of both charges and sentenced to five years in prison. Applicant was paroled on two occasions, but each time his parole was revoked for violations of his parole conditions.	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	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.b	In 1995, applicant received an Article 15 for Falsifying an Official Statement, Fraudulent Enlistment. The charges were based on applicant's failure to disclose his arrest record on his enlistment papers when he joined the Army in 1994.	Against Applicant	Fraud or Deception Criminal	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	—

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. 01-25608 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Although applicant's criminal activity is not recent, his failure to offer any credible evidence from independent sources indicating that he is now reliable and trustworthy precludes a finding that he has reformed. Clearance is denied.

STATEMENT OF CASE

On September 23, 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 October 2, 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 December 6, 2002. Applicant did not file a response to the Government's written case. The case was assigned to me on January 14, 2003.

FINDINGS OF FACT

Applicant is forty-two years of age. In 1979, applicant was arrested and charged with (1) Theft, 2nd degree and (2) Taking a Motor Vehicle Without Permission of Owner. Both offenses were felonies. He was convicted of both charges and sentenced to five years in prison. Applicant was paroled on two occasions, but each time his parole was revoked for violations of his parole conditions. In 1995, applicant received an Article 15 for Falsifying an Official Statement, Fraudulent Enlistment. The charges were based on applicant's failure to disclose his arrest record on his enlistment papers when he joined the Army in 1994. He was given seven days of extra duty, a reduction in rank (suspended), and was ordered to forfeit seven days pay (suspended). In a signed, sworn statement that he gave to the Defense Security Service (DSS) in February 2001 (Exhibit 8), applicant stated that he had informed his recruiter of the arrests and was told that since they were not documented, he did not have to list them on his recruitment papers. In the Army investigative records (Exhibit 6), however, the recruiter stated that applicant never told him about the arrests. Based on the punishment applicant received, it is apparent the Army did not believe applicant. In the February 2001 statement to the DSS, applicant stated the following: I would like to state that when I was a teenager, I was getting myself into problems and not being a good citizen. For the past twenty years I have had no additional problems with police activity.

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.

CONCLUSION

The evidence establishes that in 1979, applicant was convicted of two felonies and sentenced to five years in prison. The evidence further establishes that in 1994, applicant falsified his Army enlistment papers by not disclosing his prior arrests, and that as a result, he received an Article 15. Applicant's criminal and dishonest conduct reflects adversely on his judgment, reliability and trustworthiness, and strongly suggests that he cannot be relied upon to safeguard classified information. Applicant failed to establish that he has reformed. Although the passage of time since applicant engaged in the criminal conduct (the felonious conduct occurred over twenty years ago and the Article 15 occurred approximately eight years ago) is a mitigating factor, applicant's failure to offer any credible evidence from any independent sources (e.g., family, coworkers, supervisors, friends) indicating that he is now a reliable and trustworthy person precludes a finding that he now possesses the good judgement, reliability and trustworthiness required of individuals with access to classified information.

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

01-25608.h1 FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-25608.h1.html[7/2/2021 2:29:02 PM] 01-25608.h1