ISCR Case 02-02944.h1

Case Headnote

ISCR Case No. 02-02944.h1

grantedFeb 6, 2004· Hon. Barry M. Sax· hearing

Summary

A 41-year-old technician, originally from South Vietnam, was granted a security clearance despite concerns under Guidelines B (Foreign Influence), E (Personal Conduct), F (Financial Considerations), and J (Criminal Conduct). The applicant had a dismissed drug possession charge from 1992 and a 1996 misdemeanor citation for operating a business without a permit, which was also dismissed. The judge determined these incidents did not negatively reflect on his character.

Regarding financial concerns, the applicant had several delinquent debts, including approximately $4,739 to Bank A, which was paid off, and $67.00 to Electric Company C, which was resolved. A debt to Loan Agency B, which had increased to approximately $30,537, was brought current with ongoing monthly payments.

Foreign influence concerns were mitigated as all of the applicant's relatives who were previously citizens of Vietnam, including his mother and two sisters, became naturalized U.S. citizens. His parents-in-law also moved to the United States in 2002. Additionally, omissions on his 1999 security clearance application regarding his police record were found not to be deliberate. Based on the resolution of these issues, the security clearance was granted.

Why the Applicant Prevailed

The applicant's past criminal charges were dismissed due to lack of evidence.
All delinquent debts have been paid off or brought current.
All relatives in Vietnam have become U.S. citizens, mitigating foreign influence concerns.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
F1raisedFinancial Considerations
B1raisedForeign Influence
E1raisedPersonal Conduct

Mitigating

J1appliedCriminal ConductThe criminal behavior was not recent and was an isolated incident.
F6appliedFinancial ConsiderationsThe applicant initiated a good-faith effort to repay overdue creditors.
B1appliedForeign InfluenceImmediate family members are now U.S. citizens.
E2appliedPersonal ConductThe omissions from the application were not deliberate.

Key Rule Quoted

“An applicant's admission of the information in specific allegations relieves the Government of having to prove those allegations.”
— Executive Order 10865 and DoD Directive 5220.6

Procedural Posture

SOR issuedFeb 14, 2003
Answer filedUndatedTimely response to SOR.
Hearing heldOct 17, 2003Hearing rescheduled due to applicant's request.
Decision dateFeb 6, 2004

Cite For

Mitigation of Criminal Conduct Under Guideline J Due to Lack of Evidence
Resolution of Financial Issues as a Mitigating Factor Under Guideline F
Rebuttable Presumption of Family Ties Under Guideline B Due to Relatives Becoming U.S. Citizens.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
3.a	Applicant's sister X was a citizen of Vietnam, but became a naturalized U.S. citizen on June 20, 2003. She resides in the United States. (AX J). A second sister, Y, entered the U.S. as a legal resident in 1997, and became a naturalized citizen on May 24, 2001. (AX E)	For Applicant	Sibling in Foreign Country Immediate Family	Vietnam	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—
3.b	Applicant's mother entered the United States in 1993, as a citizen of Vietnam, was granted legal resident status, and became a naturalized citizen on December 14, 2000. (AX K).	For Applicant	Parent in Foreign Country Immediate Family	Vietnam	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—
3.c	Applicant's parents-in-law were citizens of and residents in Vietnam, but both moved to the United States in 2002. (Tr at 62). Applicant's now deceased father was an officer in the South Vietnamese Army prior to the Communist takeover, and worked in close cooperation with U.S. forces in that country. (GX 8).	For Applicant	In Law in Foreign Country Immediate Family	Vietnam	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—

Allegation

Finding

Relationship

Country

Response

Disqualifying (¶7)

Mitigating applied (¶8)

Mitigation

3.a

Applicant's sister X was a citizen of Vietnam, but became a naturalized U.S. citizen on June 20, 2003. She resides in the United States. (AX J). A second sister, Y, entered the U.S. as a legal resident in 1997, and became a naturalized citizen on May 24, 2001. (AX E)

For Applicant

Sibling in Foreign Country

Immediate Family

Vietnam

Admitted

—

(a) relationships such that a conflict between foreign and U.S. interests is unlikely

—

3.b

Applicant's mother entered the United States in 1993, as a citizen of Vietnam, was granted legal resident status, and became a naturalized citizen on December 14, 2000. (AX K).

For Applicant

Parent in Foreign Country

Immediate Family

Vietnam

Admitted

—

(a) relationships such that a conflict between foreign and U.S. interests is unlikely

—

3.c

Applicant's parents-in-law were citizens of and residents in Vietnam, but both moved to the United States in 2002. (Tr at 62). Applicant's now deceased father was an officer in the South Vietnamese Army prior to the Communist takeover, and worked in close cooperation with U.S. forces in that country. (GX 8).

For Applicant

In Law in Foreign Country

Immediate Family

Vietnam

Admitted

—

(a) relationships such that a conflict between foreign and U.S. interests is unlikely

—

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
4.a	Applicant omitted material information from his September 2, 1999 Questionnaire for National Security Positions (SF 86) when he answered "No" to Questions: 4.a. - 21. Your Police Record - Felony Offenses, when he failed to disclose the 1992 arrest cite in SOR 1.a., above. However, the omission was not deliberate.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Unknown	—	—	—
4.b	Applicant omitted material information from his September 2, 1999 Questionnaire for National Security Positions (SF 86) when he answered "No" to Questions: 4.b. - 24. Your Police Record - Alcohol/Drug Offenses, when he failed to disclose the 1992 arrest alleged in SOR 1.a. However, the omission was not deliberate.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Unknown	—	—	—
4.c	Applicant omitted material information from his September 2, 1999 Questionnaire for National Security Positions (SF 86) when he answered "No" to Questions: 4.c. - 26 - Your Police Record - Other Offenses, when he failed to disclose the offense cited in SOR 1.b. However, the omission was not deliberate.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Unknown	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

4.a

Applicant omitted material information from his September 2, 1999 Questionnaire for National Security Positions (SF 86) when he answered "No" to Questions: 4.a. - 21. Your Police Record - Felony Offenses, when he failed to disclose the 1992 arrest cite in SOR 1.a., above. However, the omission was not deliberate.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Unknown

—

4.b

Applicant omitted material information from his September 2, 1999 Questionnaire for National Security Positions (SF 86) when he answered "No" to Questions: 4.b. - 24. Your Police Record - Alcohol/Drug Offenses, when he failed to disclose the 1992 arrest alleged in SOR 1.a. However, the omission was not deliberate.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Unknown

—

4.c

Applicant omitted material information from his September 2, 1999 Questionnaire for National Security Positions (SF 86) when he answered "No" to Questions: 4.c. - 26 - Your Police Record - Other Offenses, when he failed to disclose the offense cited in SOR 1.b. However, the omission was not deliberate.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Unknown

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	As of February 3, 2003, Applicant was indebted to Bank A in the approximate amount of $4,739. However, this debt has been paid off, as of August 28, 2003. $4,739	For Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts	(c) received/receiving counseling; problem being resolved	Credited Debt Paid in Full
2.b	As of February 20, 2000, Applicant was indebted to Loan Agency B in the approximate amount of $12,601. As of June 21, 2003, the account owed had risen to $30,537. Applicant began making payments of $133.50 per month. The billing statement treats the account as current, with no amount past due and no late charges due. $30,537	For Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts	(c) received/receiving counseling; problem being resolved	Documented Payment Plan with Creditor
2.c	Applicant was indebted to Electric Company C in the approximate amount of $67.00. However, this debt has been resolved. The creditor informed Applicant that the debt had been paid, and the creditor informed the credit reporting bureaus to remove the charge from the Applicant's credit report. $67	For Applicant	Utility or Phone Debt	Admitted	(a) inability to satisfy debts	(c) received/receiving counseling; problem being resolved	Credited Debt Paid in Full

Allegation

Finding

Type

Response

Disqualifying (¶19)

Mitigating applied (¶20)

Mitigation

2.a

As of February 3, 2003, Applicant was indebted to Bank A in the approximate amount of $4,739. However, this debt has been paid off, as of August 28, 2003.

$4,739

For Applicant

Unspecified Financial

Admitted

(a) inability to satisfy debts

(c) received/receiving counseling; problem being resolved

Credited

Debt Paid in Full

2.b

As of February 20, 2000, Applicant was indebted to Loan Agency B in the approximate amount of $12,601. As of June 21, 2003, the account owed had risen to $30,537. Applicant began making payments of $133.50 per month. The billing statement treats the account as current, with no amount past due and no late charges due.

$30,537

For Applicant

Unspecified Financial

Admitted

(a) inability to satisfy debts

(c) received/receiving counseling; problem being resolved

Documented

Payment Plan with Creditor

2.c

Applicant was indebted to Electric Company C in the approximate amount of $67.00. However, this debt has been resolved. The creditor informed Applicant that the debt had been paid, and the creditor informed the credit reporting bureaus to remove the charge from the Applicant's credit report.

$67

For Applicant

Utility or Phone Debt

Admitted

(a) inability to satisfy debts

(c) received/receiving counseling; problem being resolved

Credited

Debt Paid in Full

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested on October 15, 1992, for Possession of Narcotics/Controlled Substance. The police report on which the allegation is based establishes the presence of the drug in a location in a house in which $10,700 in currency also was found. Other individuals in the house also had access to the location. Applicant admitted that $6,000 of the money was his, but he denied any knowledge of the drugs. The case was dismissed for lack of evidence tying Applicant to the drugs. (GX 1, GX 5, GX 6, GX 7, Applicant's Response to SOR, Tr at 29-32, 48-52).	For Applicant	Drug Related Criminal Charge	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 (d) evidence of successful rehabilitation (time, restitution, employment, etc.) (c) no reliable evidence the individual committed the offense	—
1.b	Applicant was given a Notice to Appear on May 6, 1996, for Business Activity without Registration and Outdoor Storage Operation. (GX 2 at page 6). A bench warrant was issued on August 26, 1996, in the amount of $250. This matter involves a misdemeanor complaint alleging (1) that Applicant caused a building to be occupied without a certificate of occupancy and; (2) that he failed to conduct a business within the building, apparently operating outside the building, which violated a city code. (GX 2 and Tr at 35-38). Applicant was never arrested. After learning from the Defense Security Service agent about the warrant, Applicant returned to court on October 9, 2001. The warrant was recalled and the matter dismissed by the court. (AX M).	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	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 (d) evidence of successful rehabilitation (time, restitution, employment, etc.) (c) no reliable evidence the individual committed the offense	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was arrested on October 15, 1992, for Possession of Narcotics/Controlled Substance. The police report on which the allegation is based establishes the presence of the drug in a location in a house in which $10,700 in currency also was found. Other individuals in the house also had access to the location. Applicant admitted that $6,000 of the money was his, but he denied any knowledge of the drugs. The case was dismissed for lack of evidence tying Applicant to the drugs. (GX 1, GX 5, GX 6, GX 7, Applicant's Response to SOR, Tr at 29-32, 48-52).

For Applicant

Drug Related Criminal Charge

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

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

(c) no reliable evidence the individual committed the offense

—

1.b

Applicant was given a Notice to Appear on May 6, 1996, for Business Activity without Registration and Outdoor Storage Operation. (GX 2 at page 6). A bench warrant was issued on August 26, 1996, in the amount of $250. This matter involves a misdemeanor complaint alleging (1) that Applicant caused a building to be occupied without a certificate of occupancy and; (2) that he failed to conduct a business within the building, apparently operating outside the building, which violated a city code. (GX 2 and Tr at 35-38). Applicant was never arrested. After learning from the Defense Security Service agent about the warrant, Applicant returned to court on October 9, 2001. The warrant was recalled and the matter dismissed by the court. (AX M).

For Applicant

Unspecified Criminal Conduct

Dismissed or Nolle Prossed

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

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

(c) no reliable evidence the individual committed the offense

—

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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

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES