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ISCR Case 02-29525.h1 — CASE

ISCR Case 02-29525.h1granted

Case Headnote

ISCR Case No. 02-29525.h1

grantedMar 18, 2005· Hon. Charles D. Ablard· hearing

Summary

A 51-year-old defense contractor employee and retired Navy Master Chief Petty Officer was granted a security clearance despite concerns under Guideline J (Criminal Conduct). The Statement of Reasons cited a history or pattern of criminal activity, specifically two incidents. The first was non-judicial punishment under the Uniform Code of Military Justice in 1971, early in his service. The second was a petty larceny charge in 2000 involving a $4.00 item, for which he received punishment.

Disqualifying condition E2.A10.1.1 was raised due to these allegations. However, the decision applied mitigating conditions E2.A10.1.3.1, E2.A10.1.3.2, and E2.A10.1.3.6.

The judge determined that the passage of time and evidence of rehabilitation mitigated the security concerns. The criminal conduct occurred many years ago, with the most recent incident being over four years prior to the decision. The applicant demonstrated good character since these events, and his employer holds him in high regard, indicating professional reliability. Based on these factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated evidence of rehabilitation and good character since the incidents.
The criminal conduct occurred many years ago, with the most recent incident being over four years prior.
The applicant's employer holds him in high regard, indicating professional reliability.

Conditions Referenced

Disqualifying

E2.A10.1.1raisedCriminal Conduct

Mitigating

E2.A10.1.3.1appliedThe Criminal Behavior Was Isolated and Occurred a Long Time Ago
E2.A10.1.3.2appliedThe Conduct Was Not Recent and Was of Low Severity
E2.A10.1.3.6appliedEvidence of Rehabilitation

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 17, 2004
Answer filedSep 7, 2004
Hearing heldFeb 7, 2005
Decision dateMar 18, 2005

Cite For

Mitigating Factors for Criminal Conduct Under Guideline J
Importance of Rehabilitation and Time Elapsed Since Incidents
Consideration of Professional Reputation in Security Clearance Decisions

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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's history of criminal conduct was mitigated by the passage of time and evidence of rehabilitation. The applicant had two incidents of criminal activity, one being a non-judicial punishment under the UCMJ and the other a petty larceny charge that was dismissed, with a guilty plea to trespass. The judge ruled in favor of the applicant on all allegations under Guideline J, granting the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The applicant has a history or pattern of criminal activity.	For Applicant	Theft or Larceny	Dismissed or Nolle Prossed	Denied	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	Credited Passage of Time Credited Rehabilitation Evidence
1.b	The applicant received non-judicial punishment under the UCMJ when he first entered the service in 1971.	For Applicant	Military UCMJ Violation	Conduct No Charge	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	Credited Passage of Time Credited Rehabilitation Evidence
1.c	The applicant was charged with petty larceny of a $4.00 item in 2000 and received punishment.	For Applicant	Theft or Larceny	Dismissed or Nolle Prossed	Denied	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	Credited Passage of Time Credited Rehabilitation Evidence

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

SYNOPSIS

KEYWORD: Criminal Conduct

DIGEST: Applicant is a defense contractor employee who retired from the Navy as a Master Chief Petty Officer after 26 years of service. The allegation is that he has a history or pattern of criminal activity. He received non-judicial punishment under the UCMJ when he first entered the service in 1971. After his discharge he was charged with petty larceny of a $4.00 item in 2000 and received punishment. His employer holds him in high regard. The allegations are mitigated by passage of time and evidence of rehabilitation. Clearance is granted.

CASENO: 02-29525.h1

DATE: 03/18/2005

DATE: March 18, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 02-29525

DECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

APPEARANCES

SYNOPSIS

Applicant is a defense contractor employee who retired from the Navy as a Master Chief Petty Officer after 26 years of service. The allegation is that he has a history or pattern of criminal activity. He received non-judicial punishment under the UCMJ when he first entered the service in 1971. After his discharge he was charged with petty larceny of a $4.00 item in 2000 and received punishment. His employer holds him in high regard. The allegations are mitigated by passage of time and evidence of rehabilitation. Clearance is granted.

STATEMENT OF CASE

On August 17, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Classified 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.

On September 7, 2004, Applicant responded to the SOR allegations, and requested a hearing. A notice of hearing was issued on January 13, 2005, and the matter was assigned to me on January 14, 2005, for a hearing on February 7, 2005, held that day. Six government exhibits and ten exhibits for Applicant were admitted into evidence. A security investigator testified for the government and the Applicant testified. The transcript was received on March 10, 2005.

FINDINGS OF FACT

Applicant admitted two allegations with explanation and denied a third. After a complete review of the record, I make the following additional findings of fact:

Applicant is a 51-year-old software systems employee of a defense contractor who retired from the Navy in 1997 as a Master Chief Petty Officer with 26 years of service.

In 1971 when he was 18 years old at the beginning of his Navy career he was punished under Article 15 of the Uniform code of Military Justice for larceny and wrongful appropriation of a $47.00 item. His punishment consisted of ten days of correctional custody, a fine of $50.00, and a reduction of one grade.

Applicant was interviewed by the DSS agent who testified. In the course of the interview he mentioned a 1996 incident when he had purchased a computer and discovered two cables in the box that he did not buy and returned them to the store. He declined to elaborate on a question put to him by the investigator as to whether he shoplifted as a "regular activity". He acknowledged that he had occasionally shoplifted small items as a teenager for which he was punished by his family.

In December 2000 after discharge from the Navy he was arrested and charged with petty theft and trespass with intent to interfere. The stolen items consisted of electronics valued at $4.00. The theft charge was dismissed and he pled guilty to trespass and was sentenced to a three year suspended sentence, fined $300.00 with restitution of 100.00, required to attend a shoplifters course, and not visit the store where the incident occurred.

Applicant has a good record with his employer and valued for his professionalism. He has been employed with the company for three years and his supervisors and colleagues speak highly of him in their letters of support.

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 it is clearly consistent with the national interest to grant or continue a security 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 adjudicative factors, I conclude the following with respect to all allegations set forth in the SOR:

Guideline J (Criminal Conduct) is alleged. The Government has established a sufficient basis that Disqualifying Condition E2.A10.1.1. might be applicable to Applicant in that he has twice been charged with criminal offenses. It could be mitigated by application of the facts in the case to certain of the Mitigating Conditions (MC).

The first criminal conduct with which Applicant was charged occurred when he was 18 years old at the beginning of a Navy career that continued and ended very successfully. The second occurred over four years ago and the conviction was for trespass, not the more serious allegation of theft. This was an incident concerning a low value theft about which the Applicant has been candid in his admission and is sufficiently embarrassed that it is most unlikely to recur. The matter in 1996 was revealed by Applicant in his interview apparently in an effort to show that he did not have a shoplifting habit and, when property came into his possession that was not his, he returned it to the owner.

The most recent criminal behavior occurred almost four years ago (E2.A10.1.3.1.), both incidents were isolated occurring almost 30 years apart (E2.A10.1.3.2.), and there is clear evidence of rehabilitation (E2.A10.1.3.6.). Thus, the mitigating conditions are applicable.

In all adjudications the protection of our national security is of paramount concern. Persons who have access to classified information have an overriding responsibility for the security concerns of the nation. The objective of the security clearance process is the fair-minded, commonsense assessment of a person's trustworthiness and fitness for access to classified information.

The "whole person" concept recognizes we should view a person by the totality of their acts and omissions. Each case must be judged on its own merits taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis. Applicant has a good record with his company and served honorably in the highest ranking a non-commissioned officer in the Navy.

After considering all the evidence in its totality, and as an integrated whole to focus on the whole person of Applicant, I conclude Applicant's record of conduct justifies a finding that it is clearly consistent with the national interest to grant a security clearance.

FORMAL FINDINGS

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

Paragraph 1. Guideline J: FOR APPLICANT

Subparagraph 1.a.: For Applicant

Subparagraph 1.b.: For Applicant

Subparagraph 1.c.: For Applicant

DECISION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or renew a security clearance for Applicant. Clearance is granted.

Charles D. Ablard

Administrative Judge

FOOTNOTES

FOR GOVERNMENT Melvin A. Howry, Esq. , Department Counsel file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-29525.h1.htm[6/24/2021 11:15:03 AM] FOR APPLICANT Alan V. Edmunds, Esq.