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ISCR Case 02-17368.h1 — CASE

ISCR Case 02-17368.h1denied

Case Headnote

ISCR Case No. 02-17368.h1

deniedMar 31, 2004· Hon. Charles D. Ablard· hearing

Summary

A 46-year-old defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The applicant had a history of criminal conduct, including multiple drug offenses, and significant overdue debts.

Specifically, the applicant faced allegations of ten delinquent debts totaling over $4,000 to eight different creditors. One debt for $784 resulted in an unpaid state court judgment, while five others were placed for collection and four were charged off but remained unpaid. The applicant also had a history of criminal charges, including theft of government property, possession of two marijuana cigarettes, transporting 40 to 50 pounds of marijuana, and drug possession with intent to distribute, which led to a four-year suspended sentence. An additional drug offense was noted in 1986.

The judge determined that the applicant's past criminal behavior, particularly the drug-related offenses and a serious conviction, combined with financial irresponsibility demonstrated by multiple overdue debts, raised substantial security concerns. These issues outweighed any mitigating factors, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant had multiple criminal offenses related to drug possession and distribution, including a serious conviction that resulted in a suspended sentence.
The applicant had overdue debts to multiple creditors, indicating financial irresponsibility and potential vulnerability to coercion.

Conditions Referenced

Disqualifying

E2.A10.1.2.1appliedCriminal Conduct
E2.A6.1.1appliedFinancial Considerations

Mitigating

E2.A10.1.2.2rejectedCriminal ConductOne drug charge was mitigated for lack of proof.
E2.A6.1.2.1rejectedFinancial ConsiderationsThe applicant's explanation for debts did not mitigate the concerns.

Key Rule Quoted

“"[N]o one has a 'right' to a security clearance."”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedAug 26, 2003
Answer filedSep 16, 2003Applicant elected to proceed without a hearing.
Hearing held—Written record decision.
Decision dateMar 31, 2004

Cite For

Disqualifying Conditions Related to Criminal Conduct Under Guideline J
Disqualifying Conditions Related to Financial Considerations Under Guideline F
The Principle That No Individual Has an Inherent Right to a Security Clearance.

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's personal conduct allegations were mitigated, resulting in favorable findings for both subparagraphs under Guideline E. The applicant was not found to have falsified information on his security clearance application, and the allegations were deemed unproven.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a–3.b	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant		—		—	—	—

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 F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant had multiple overdue debts totaling approximately $4,000, including a judgment against him and several accounts in collection. The judge found that these financial issues raised significant security concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	Applicant is alleged to have ten delinquent debts to eight different creditors for an amount exceeding $4,000.00. $4,000	Against Applicant	Unspecified Financial	Admitted	(b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
2.b	One debt for $784.00 resulted in a judgment against him by a state court that is still unpaid. $784	Against Applicant	Judgment Against Applicant	Admitted	(b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
2.c	Five other debts have been placed for collection and the remaining four have been charged off but are still unpaid.	Against Applicant	Unspecified Financial	Admitted	(b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
2.d–2.j	7 sub-charges — specific text not stated in this decision (5 against, 2 for the applicant). (low confidence)	Mixed			—	—	—

Descriptive standardized rendering of a decided public case (Guideline F). 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 ruled against the applicant on most allegations of criminal conduct, citing multiple drug-related offenses from 1985, including theft of government property and possession with intent to distribute. One allegation was found for the applicant due to lack of proof, but the overall conduct was deemed disqualifying, leading to a denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The applicant was charged with Theft of Government Property from a Navy exchange facility.	Against Applicant	Theft or Larceny	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	The applicant was charged with possession of two marijuana cigarettes.	Against Applicant	Drug Related Criminal Charge	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.c	The applicant was charged with transporting 40 to 50 pounds of marijuana from New York to Virginia.	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	—	—
1.d	The applicant was charged with drug possession with intent to distribute and was sentenced to four years confinement, all of which was suspended.	Against Applicant	Drug Related Criminal Charge	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.e	The applicant was charged with an additional drug offense in 1986.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.f	The applicant admitted to having overdue debts to eight different creditors for a total amount of approximately $4,000.00.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

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 31, 2004

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 02-17368

DECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

SYNOPSIS

Applicant is a 46-year-old employee of a defense contractor who was charged with criminal offenses on four occasions in 1985. The first was for Theft of Government Property and he was terminated from his employment. The second was for possession of two marijuana cigarettes and the third was for transporting 40 to 50 pounds of marijuana from New York to Virginia. The fourth was for drug possession with intent to distribute and he was sentenced to four years confinement all of which was suspended. Although the sentence was suspended it is covered by the provisions of 10 U.S.C. 986. Applicant has overdue debts to eight different creditors for a total amount of approximately $4,000.00. Clearance is denied.

STATEMENT OF CASE

On August 26, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Information Within Industry, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, 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. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn signed statement dated September 16, 2003, Applicant responded to the allegations set forth in the SOR, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government's written case on December 30, 2003. A complete copy of the file of relevant material (FORM) was provided to Applicant, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant did not respond and the case was assigned to me on March 5, 2003.

FINDINGS OF FACT

After a complete and thorough review of the information in the record, and upon due consideration of same, I make the following findings of fact.

Applicant is a 46-year-old employee of a defense contractor who was charged with criminal offenses on four occasions in 1985. The first was for Theft of Government Property from a Navy exchange facility. He was terminated from his employment. The second was for possession of two marijuana cigarettes and the third was for transporting 40 to 50 pounds of marijuana from New York to Virginia. The fourth was for drug possession with intent to distribute and he was sentenced to four years confinement all of which was suspended. He was charged with an additional drug offense in 1986.

Applicant admitted to two specific allegations in the SOR relating to Criminal Conduct and denied three. He admitted to all of the allegations regarding Financial Considerations relating to debts and denied the two allegations relating to Personal Conduct concerning his Security Clearance Application (SF 86). The admitted facts are hereby incorporated as findings of fact. The government concedes that three allegations in the SOR that were denied have been mitigated because of lack of proof. (¶ 1 c, 3 a and b)

Applicant is alleged to have ten delinquent debts to eight different creditors for an amount exceeding $4,000.00. One debt for $784.00 resulted in a judgment against him by a state court that is still unpaid. Five other debts have been placed for collection and the remaining four have been charged off but are still unpaid. Two of the nine are duplicate. (¶ 2 dand f)

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position that will give that person access to such information." Id. at 527.

An evaluation of whether the applicant meets the security guidelines includes consideration of the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Executive Order No. 10865 § 2. See Executive Order No. 12968 § 3.1(b).

Initially, the Government must establish, by something less than a preponderance of the evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information See Egan, 484 U.S. at 531. The applicant then bears the burden of demonstrating that it is clearly consistent with the national interest to grant or continue the applicant's clearance. "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive, ¶ E2.2.2. "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531. See Executive Order No. 12968 § 3.1(b).

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors and conditions above, I conclude the following with respect to all allegations set forth in the SOR.

Allegations of criminal conduct relating to drugs raise a number of Disqualifying Conditions (DC) under Guideline J relating to a single serious crime or multiple lesser offenses (E2.A10.1.2.2.) and allegations or admissions of criminal conduct, regardless of whether the person was formally charged (E2.A10.1.2.1.). One drug charge in 1986 (¶ 1.c) was mitigated for lack of proof but the others were either proven or admitted.

The applicable Disqualifying Condition for Criminal Conduct is applicable to Appellant. The provisions of 10 U.S.C. 986 and the implementing regulations are unequivocal that an applicant is disqualified from holding a security clearance if convicted of a crime and sentenced to more than one year of imprisonment absent a waiver from the Secretary of Defense.

Applicant's delinquent debts raise concerns under Guideline F in that an individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. (E2.A6.1.1.) Conditions that could raise a security concern and maybe disqualifying include a history of not meeting financial obligations (E2.A6.1.2.1.), and evidence of inability or unwillingness to satisfy debts. (E2.A6.1.2.3.)

Applicant's contention in his answer that the debts were the result of misuse of credit cards during college days does not explain the continued problem and the admission that he and his wife owe even more than is alleged to a hospital aggravates the problem. The extensive number of debts unpaid over a lengthy period of time disqualifies Applicant from holding a security clearance under Guideline F.

Although the criminal conduct occurred almost 20 years ago, most of the offenses were related to drug charges occurring in a brief period of four months when Applicant went into the drug business after losing his employment for theft. The most serious offense resulted in an extensive sentence. Absent the above facts and circumstances, the offenses might have been mitigated as criminal conduct that was not recent under Mitigating Condition (MC) 1. However, I cannot so conclude in light of the surrounding circumstances of the case specifically the allegations concerning financial considerations.

Also alleged in the SOR is falsification of his SF 86 by failing to disclose debts that were over 180 days old under Guideline E (E2.A5.1.2.2.). The government has conceded in the FORM that these allegations are unproved and therefore mitigated.

After considering all the evidence in its totality and as an integrated whole to focus on the whole person of Applicant, I conclude it is not clearly consistent with the national interest to grant clearance to Applicant.

FORMAL FINDINGS

Formal findings as required by the Directive (Par. E3.1.25) are as follows:

Paragraph 1. Guideline J: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

Subparagraph 1.b.: Against Applicant

Subparagraph 1.c.: For Applicant

Subparagraph 1.d.: Against Applicant

Subparagraph 1.e.: Against Applicant

Subparagraph 1.f.: Against Applicant

Paragraph 2. Guideline F: AGAINST APPLICANT

Subparagraph 2.a.: Against Applicant

Subparagraph 2.b.: Against Applicant

Subparagraph 2.c.: Against Applicant

Subparagraph 2.d.: For Applicant Subparagraph 2.e.: Against Applicant

Subparagraph 2.f.: For Applicant

Subparagraph 2.g.: Against Applicant

Subparagraph 2.h.: Against Applicant

Subparagraph 2.i.: Against Applicant

Subparagraph 2.j.: Against Applicant

Paragraph 3. Guideline E: FOR APPLICANT

Subparagraph 3.a.: For Applicant

Subparagraph 3.b. For Applicant

DECISION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or renew a security clearance for Applicant. The provisions of 10 U.S.C. 986 and the implementing regulations preclude such a finding because of Appellant's conviction and sentence. Clearance is denied.

Charles D. Ablard

Administrative Judge

FOOTNOTES

02-17368.h1 FOR GOVERNMENT Marc E. Curry, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-17368.h1.html[6/24/2021 10:59:24 AM] 02-17368.h1