ISCR Case 02-30045.h2

Case Headnote

ISCR Case No. 02-30045.h2

grantedDec 9, 2004· Hon. James A. Young· hearing

Summary

A 49-year-old over-the-road truck driver for a defense contractor was granted a security clearance despite initial concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons detailed a history of criminal conduct, including a January 1975 larceny conviction, a February 1975 arrest for simple assault, and a felony conviction for possession of marijuana over four ounces. Further allegations included a 1982 arrest for theft by check, an arrest for carrying a prohibited weapon, and a 1985 conviction for aggravated assault resulting in a 10-year prison sentence.

Additional charges included illegal possession of amphetamine in 1986 and a capias issued for failure to report to a probation officer and pay court-ordered costs, fees, and restitution. The applicant was also alleged to have deliberately falsified his Security Clearance Application by failing to disclose his 1975 felony marijuana conviction. Initially, the applicant was deemed disqualified under 10 U.S.C. § 986.

However, following a remand due to amendments in 10 U.S.C. § 986, the judge found that the applicant's prior convictions did not bar him from receiving a clearance. The amendments clarified conditions under which a clearance could be denied, and the applicant did not serve jail time for his convictions. The judge determined that the failure to disclose a conviction was an oversight, not deliberate falsification, and noted the applicant's successful rehabilitation with no criminal conduct in the last 11 years. Based on these factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated successful rehabilitation with no criminal conduct in the last 11 years.
The amendments to 10 U.S.C. § 986 allowed for the granting of a clearance as the applicant did not serve time in jail for his convictions.
The judge found the applicant's failure to disclose a conviction was an oversight, not a deliberate act.

Conditions Referenced

Disqualifying

E2.A10.1.2.1raisedHistory of Criminal Activity
E2.A10.1.2.2raisedSerious Offenses
E2.A5.1.1raisedPersonal Conduct

Mitigating

E2.A10.1.3.1appliedNot Recent Criminal Conduct
E2.A10.1.3.6appliedSuccessful Rehabilitation
E2.A5.1.1appliedOversight in Disclosure

Key Rule Quoted

“"The prohibition on granting security clearances to applicants convicted of crimes for which they were sentenced to more than one year in jail applies only to cases in which the applicant actually served at least a year in jail."”
— 10 U.S.C. § 986

Procedural Posture

SOR issuedMar 3, 2003
Answer filedMar 22, 2003
Hearing heldApr 5, 2004
Decision dateDec 9, 2004Remand decision following amendments to 10 U.S.C. § 986.

Cite For

Successful Rehabilitation Mitigating Criminal Conduct Under Guideline J
Oversight in Disclosure of Past Convictions Under Guideline E
Impact of Amendments to 10 U.S.C. § 986 on Security Clearance Eligibility

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 deliberately falsified his SCA by failing to list his 1975 felony conviction for possession of marijuana	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant deliberately falsified his SCA by failing to list his 1975 felony conviction for possession of marijuana

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Denied

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was convicted of larceny in January 1975.	For Applicant	Theft or Larceny	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.b	Applicant was arrested for simple assault in February 1975.	For Applicant	Assault or Battery	Arrested Not Charged	Unknown	—	—	—
1.c	Applicant was convicted of possession of marijuana over four ounces, a felony.	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.d	Applicant was arrested and charged with theft by check in 1982.	For Applicant	Theft or Larceny	Dismissed or Nolle Prossed	Unknown	—	—	—
1.e	Applicant was arrested and charged with carrying a prohibited weapon.	For Applicant	Weapons Offense	Charged Not Convicted	Unknown	—	—	—
1.f	Applicant was convicted of aggravated assault and sentenced to 10 years in prison in 1985.	For Applicant	Assault or Battery	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.g	Applicant was charged with illegal possession of amphetamine in 1986.	For Applicant	Drug Related Criminal Charge	Dismissed or Nolle Prossed	Unknown	—	—	—
1.h	A capias (arrest warrant) was issued for Applicant for failure to report to the probation officer and failure to pay court costs, probation fees, and restitution as ordered by the court in his sentence resulting from the September 1983 indictment.	For Applicant	Probation or Court Order Violation	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	—
1.i	Applicant is disqualified from obtaining a security clearance under 10 U.S.C. § 986.	For Applicant	Unspecified Criminal Conduct	—	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was convicted of larceny in January 1975.

For Applicant

Theft or Larceny

Convicted

Admitted

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

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.b

Applicant was arrested for simple assault in February 1975.

For Applicant

Assault or Battery

Arrested Not Charged

Unknown

—

1.c

Applicant was convicted of possession of marijuana over four ounces, a felony.

For Applicant

Drug Related Criminal Charge

Convicted

Admitted

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

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.d

Applicant was arrested and charged with theft by check in 1982.

For Applicant

Theft or Larceny

Dismissed or Nolle Prossed

Unknown

—

1.e

Applicant was arrested and charged with carrying a prohibited weapon.

For Applicant

Weapons Offense

Charged Not Convicted

Unknown

—

1.f

Applicant was convicted of aggravated assault and sentenced to 10 years in prison in 1985.

For Applicant

Assault or Battery

Convicted

Admitted

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

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.g

Applicant was charged with illegal possession of amphetamine in 1986.

For Applicant

Drug Related Criminal Charge

Dismissed or Nolle Prossed

Unknown

—

1.h

A capias (arrest warrant) was issued for Applicant for failure to report to the probation officer and failure to pay court costs, probation fees, and restitution as ordered by the court in his sentence resulting from the September 1983 indictment.

For Applicant

Probation or Court Order Violation

Conduct No Charge

Admitted

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

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

—

1.i

Applicant is disqualified from obtaining a security clearance under 10 U.S.C. § 986.

For Applicant

Unspecified Criminal Conduct

—

Unknown

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

(b) evidence of criminal conduct, regardless of charge or conviction

—

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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