ISCR Case 02-13164.h1

Case Headnote

ISCR Case No. 02-13164.h1

deniedOct 29, 2002· Hon. Richard A. Cefola· hearing

Summary

A 38-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to willful falsification on his April 2000 Security Clearance Application (SCA). The Administrative Judge found that the Applicant knowingly failed to disclose a 1994 felony charge for Debit Card Abuse and his history of drug abuse, both of which constituted violations of 18 U.S.C. Section 1001.

Specifically, the Applicant did not disclose the 1994 felony charge in response to question 21 on his SCA. He also failed to disclose any past drug abuse when answering question 27. While he did not disclose a 1994 Public Intoxication charge or a related drug charge, the Judge determined this was an honest oversight, not willful falsification, as he had disclosed an associated weapons charge. The Applicant's claim that he had permission to use a debit card in 1994 was supported by the dismissal of the Debit Card Abuse allegation, and no willful falsification was found regarding that specific incident. Additionally, the Applicant copied software, but this was not shown to be illegal or a workplace violation.

The denial was based on the Applicant's willful failure to disclose the 1994 felony charge and his past drug abuse, which was not corrected until nearly two years after the initial application. Despite positive assessments from his supervisors and numerous employer awards, the lack of candor regarding these significant issues led to the denial of his security clearance.

Why the Applicant Was Denied

The Applicant willfully failed to disclose a 1994 felony charge of Debit Card Abuse on his Security Clearance Application.
The Applicant did not disclose his past drug abuse, which was a violation of 18 U.S.C. Section 1001.
The Applicant's failure to disclose derogatory information was not corrected until confronted nearly two years later.

Conditions Referenced

Disqualifying

E2.A2.raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire.
J1.raisedAllegations or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged.

Key Rule Quoted

“Unacceptable personal conduct is conduct involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations.”

Procedural Posture

SOR issuedJun 19, 2002
Answer filedJun 26, 2002
Hearing heldOct 8, 2002
Decision dateOct 29, 2002

Cite For

Willful Falsification Under Guideline E
Failure to Disclose Criminal Conduct Under Guideline J
Lack of Prompt Correction of Falsification as a Mitigating Factor

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

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In answering question 21 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose that he had been charged with Debit Card Abuse, a third degree felony, in August of 1994. This lack of candor is a violation of 18 U.S.C. Section 1001.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
1.b	In answering question 24 on his April 2000 SCA, the Applicant failed to disclose a 1994 charge for Public Intoxication and a 1994 drug related charge. The drug related charge was in conjunction with a 1994 weapons charge, which the Applicant thought was the gravamen charges against him, and which he fully disclosed in responding to question 21.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	—	—	—
1.c	In answering question 27 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose any of his past drug abuse. This lack of candor is also a violation of 18 U.S.C. Section 1001.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
1.d	In a signed sworn statement, executed by the Applicant on January 17, 2002, the Applicant states that he withdrew $40 from an ATM machine using his girlfriend's debit card, but with her permission. He disputes the fact that he did not have her permission, and his averment is supported by the fact that the related allegation of Debit Card Abuse was dismissed.	For Applicant	Falsification of Employment or Other RecordsNOT DELIBERATE	—	Denied	—	—	—
1.e	The Applicant copied games, music and other software from the Internet, and also copied software products. The Applicant does not believe that his conduct was illegal or violative of any rules or regulations at his workplace.	For Applicant	Misuse of Employer Time or Resources	—	Unknown	—	—	—
2.a	In answering question 27 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose any of his past drug abuse. This lack of candor is also a violation of 18 U.S.C. Section 1001.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
3.a	The Applicant copied games, music and other software from the Internet, and also copied software products. The Applicant does not believe that his conduct was illegal or violative of any rules or regulations at his workplace.	For Applicant	Misuse of Employer Time or Resources	—	Unknown	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

In answering question 21 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose that he had been charged with Debit Card Abuse, a third degree felony, in August of 1994. This lack of candor is a violation of 18 U.S.C. Section 1001.

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

—

1.b

In answering question 24 on his April 2000 SCA, the Applicant failed to disclose a 1994 charge for Public Intoxication and a 1994 drug related charge. The drug related charge was in conjunction with a 1994 weapons charge, which the Applicant thought was the gravamen charges against him, and which he fully disclosed in responding to question 21.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Denied

—

1.c

In answering question 27 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose any of his past drug abuse. This lack of candor is also a violation of 18 U.S.C. Section 1001.

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Drug Involvement

Denied

(a) deliberate omission, concealment, or falsification on a security form

—

1.d

In a signed sworn statement, executed by the Applicant on January 17, 2002, the Applicant states that he withdrew $40 from an ATM machine using his girlfriend's debit card, but with her permission. He disputes the fact that he did not have her permission, and his averment is supported by the fact that the related allegation of Debit Card Abuse was dismissed.

For Applicant

Falsification of Employment or Other RecordsNOT DELIBERATE

—

Denied

—

1.e

For Applicant

Misuse of Employer Time or Resources

—

Unknown

—

2.a

In answering question 27 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose any of his past drug abuse. This lack of candor is also a violation of 18 U.S.C. Section 1001.

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Drug Involvement

Denied

(a) deliberate omission, concealment, or falsification on a security form

—

3.a

For Applicant

Misuse of Employer Time or Resources

—

Unknown

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In answering question 21 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose that he had been charged with Debit Card Abuse, a third degree felony, in August of 1994. This lack of candor is a violation of 18 U.S.C. Section 1001.	Against Applicant	Fraud or Deception Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	In answering question 24 on his April 2000 SCA, the Applicant failed to disclose a 1994 charge for Public Intoxication and a 1994 drug related charge. The drug related charge was in conjunction with a 1994 weapons charge, which the Applicant thought was the gravamen charges against him, and which he fully disclosed in responding to question 21. I find the Applicant's failure to fully disclose the drug related charge an honest oversight on his part, and not a wilful falsification.	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Denied	—	—	—
1.c	In answering question 27 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose any of his past drug abuse. This lack of candor is also a violation of 18 U.S.C. Section 1001.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.d	In a signed sworn statement, executed by the Applicant on January 17, 2002, the Applicant states that he withdrew $40 from an ATM machine using his girlfriend's debit card, but with her permission. He disputes the fact that he did not have her permission, and his averment is supported by the fact that the related allegation of Debit Card Abuse was dismissed. I find no wilful falsification, here.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	—	—	—
1.e	The Applicant copied games, music and other software from the Internet, and also copied software products. The Applicant does not believe that his conduct was illegal or violative of any rules or regulations at his workplace, and there is no showing that this conduct was, in fact, illegal or violative of any such rules or regulations.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	—	—	—
2.a	The Applicant's personal conduct, related criminal conduct and alleged rule violation, militate against the granting of a security clearance.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
3.a	The Applicant's first and second level supervisors think highly of his integrity and skills. He has also received numerous awards from his employer.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Against Applicant

Fraud or Deception Criminal

Conduct No Charge

Denied

(a) pattern of minor offenses casting doubt on judgment/reliability

—

1.b

For Applicant

Drug Related Criminal Charge

Conduct No Charge

Denied

—

1.c

In answering question 27 on his April 2000 SCA, the Applicant knowingly and wilfully failed to disclose any of his past drug abuse. This lack of candor is also a violation of 18 U.S.C. Section 1001.

Against Applicant

Drug Related Criminal Charge

Conduct No Charge

Denied

(a) pattern of minor offenses casting doubt on judgment/reliability

—

1.d

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

—

1.e

The Applicant copied games, music and other software from the Internet, and also copied software products. The Applicant does not believe that his conduct was illegal or violative of any rules or regulations at his workplace, and there is no showing that this conduct was, in fact, illegal or violative of any such rules or regulations.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

—

2.a

The Applicant's personal conduct, related criminal conduct and alleged rule violation, militate against the granting of a security clearance.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

(a) pattern of minor offenses casting doubt on judgment/reliability

—

3.a

The Applicant's first and second level supervisors think highly of his integrity and skills. He has also received numerous awards from his employer.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

—

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Case Profile

Summary

Why the Applicant Was Denied

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