ISCR Case 02-22081.h1

Case Headnote

ISCR Case No. 02-22081.h1

deniedFeb 23, 2004· Hon. Roger E. Willmeth· hearing

Summary

A 30-year-old software test manager was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) primarily due to his failure to disclose a 1996 criminal arrest on his security clearance application (SF 86). The applicant's explanation for this omission was deemed unconvincing, raising concerns about his candor and reliability.

The undisclosed 1996 arrest involved felony charges of Armed Robbery, Assault and Battery with a Dangerous Weapon, Larceny over $250.00, and a misdemeanor charge of Breaking and Entering. These charges stemmed from an incident where the applicant and two friends, carrying plastic pistols, confronted a victim to retrieve car stereo equipment they believed was stolen. A fight ensued, leading to their arrest. Although the charges were dismissed, the applicant paid $225.00 in court fees.

Additionally, the applicant had a separate arrest on June 15, 1996, for being a Disorderly Person and Malicious Destruction of Property, both misdemeanors. These charges, which were also dismissed, resulted from an incident at a baseball game where the applicant, after drinking, refused to stop using profanity and resisted leaving his seat, damaging an officer's sunglasses during the scuffle. Despite evidence of rehabilitation from past criminal conduct, the judge found the applicant's lack of candor regarding the undisclosed arrest inconsistent with the trust required for a security clearance, leading to the denial.

Why the Applicant Was Denied

The applicant failed to report a criminal arrest on his security clearance application, which raised concerns about his honesty and reliability.
The applicant's explanation for the omission was not convincing, undermining his credibility.
The applicant's actions were inconsistent with the high level of trust required for a security clearance.

Conditions Referenced

Disqualifying

E2.A5.1.2.2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts

Mitigating

J1appliedThe Criminal Behavior Was Not Recent
J6appliedThere Is Clear Evidence of Successful Rehabilitation

Key Rule Quoted

“"Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of national security."”
— Directive E2.2.2.

Procedural Posture

SOR issuedJul 17, 2003
Answer filedAug 8, 2003
Hearing heldDec 16, 2003
Decision dateFeb 23, 2004

Cite For

Failure to Report Criminal History Under Guideline E
Credibility Issues Related to Omissions on Security Clearance Applications
Successful Rehabilitation Not Mitigating Failure to Disclose Criminal Conduct

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
2.a	Applicant omitted his criminal arrest in 1996 from his security clearance application (SF 86).	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(b) deliberately providing false information to an investigator or official	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant omitted his criminal arrest in 1996 from his security clearance application (SF 86).

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Criminal Conduct

Denied

(b) deliberately providing false information to an investigator or official

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested and charged with Armed Robbery, Assault and Battery with a Dangerous Weapon, Larceny over $250.00, all felonies, and Breaking and Entering with Intent to Commit a Misdemeanor, a misdemeanor. The charges were subsequently dismissed and Applicant was assessed and paid court fees totaling $225.00. The charges resulted from Applicant and two friends attempting to take car stereo equipment that they claimed the victim had stolen from one of Applicant's friends. Applicant called the victim, expressed an interest in purchasing the equipment, and arranged a meeting with him at a park. Applicant and his friends carried plastic pistols. His friends hid in the woods until the victim displayed the equipment. A fight ensued in which the victim was punched and kicked. Applicant and his friends were arrested by police following a complaint by the victim (SOR ¶ 1.a).	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	—
1.b	On June 15, 1996, Applicant was arrested and charged with being a Disorderly Person and Malicious Destruction of Property of $250.00 or less, both misdemeanors. The charges were subsequently dismissed and Applicant was assessed a fee or fine that he paid on June 4, 2002. The charges occurred during a major league baseball game that Applicant and a companion attended. They were drinking beer and rooting for the visiting team. Applicant refused an attendant's request to stop using profanity and refused a subsequent request to leave the seating area. He had to be subdued and handcuffed. This scuffle resulted in damage to the arresting officer's sunglasses (SOR ¶ 1.b).	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (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 and charged with Armed Robbery, Assault and Battery with a Dangerous Weapon, Larceny over $250.00, all felonies, and Breaking and Entering with Intent to Commit a Misdemeanor, a misdemeanor. The charges were subsequently dismissed and Applicant was assessed and paid court fees totaling $225.00. The charges resulted from Applicant and two friends attempting to take car stereo equipment that they claimed the victim had stolen from one of Applicant's friends. Applicant called the victim, expressed an interest in purchasing the equipment, and arranged a meeting with him at a park. Applicant and his friends carried plastic pistols. His friends hid in the woods until the victim displayed the equipment. A fight ensued in which the victim was punched and kicked. Applicant and his friends were arrested by police following a complaint by the victim (SOR ¶ 1.a).

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Admitted

—

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

—

1.b

On June 15, 1996, Applicant was arrested and charged with being a Disorderly Person and Malicious Destruction of Property of $250.00 or less, both misdemeanors. The charges were subsequently dismissed and Applicant was assessed a fee or fine that he paid on June 4, 2002. The charges occurred during a major league baseball game that Applicant and a companion attended. They were drinking beer and rooting for the visiting team. Applicant refused an attendant's request to stop using profanity and refused a subsequent request to leave the seating area. He had to be subdued and handcuffed. This scuffle resulted in damage to the arresting officer's sunglasses (SOR ¶ 1.b).

For Applicant

Unspecified Criminal Conduct

Dismissed or Nolle Prossed

Admitted

—

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

—

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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