ISCR Case 02-32252.h1

Case Headnote

ISCR Case No. 02-32252.h1

grantedNov 29, 2004· Hon. Robert Robinson Gales· hearing

Summary

A 46-year-old defense contractor employee was granted a security clearance despite a past conviction for criminal conduct under Guideline J. The Statement of Reasons (SOR) cited his January 1980 arrest and March 1980 conviction for selling cocaine when he was 21, which initially resulted in a seven-year prison sentence. This sentence was later suspended, and he was placed on five years' probation. An appeal in September 1980 led to the court of criminal appeals dismissing the "case," though it remained unclear if the charge or the appeal itself was dismissed. The SOR also alleged past cocaine and marijuana abuse.

Disqualifying conditions related to criminal conduct were raised, specifically E2.A10.1.2.1, E2.A10.1.2.2, and E2.A10.1.2.3. However, mitigating conditions E2.A10.1.3.1 and E2.A10.1.3.2 were applied.

The judge granted the clearance, noting the applicant's clean record since 1980 and his sustained abstinence from illegal substances for over 24 years. The criminal conduct was not considered recent, and a recent amendment to 10 U.S.C. § 986 was a key factor, as it removed the automatic disqualification previously associated with such a conviction, allowing for eligibility.

Why the Applicant Prevailed

The applicant has abstained from illegal substance use since 1980.
The applicant's criminal conduct occurred over 24 years ago and is not considered recent.
The recent amendment to 10 U.S.C. § 986 allows for eligibility despite the past conviction.

Conditions Referenced

Disqualifying

CC DC E2.A10.1.2.1raisedAllegations or Admissions of Criminal Conduct, Regardless of Whether the Person Was Formally Charged
CC DC E2.A10.1.2.2raisedA Single Serious Crime or Multiple Lesser Offenses
CC DC E2.A10.1.2.3raisedConviction in a Federal or State Court, Including a Court-martial of a Crime and Sentenced to Imprisonment for a Term Exceeding One Year

Mitigating

CC MC E2.A10.1.3.1appliedThe Criminal Behavior Was Not Recent
CC MC E2.A10.1.3.2rejectedThe Crime Was an Isolated IncidentThe judge found that the frequency of the applicant's criminal conduct did not support this condition.

Key Rule Quoted

“A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.”

Procedural Posture

SOR issuedJan 26, 2004
Answer filedMar 18, 2004Applicant elected to have the case decided on the written record.
Hearing held—No hearing was held.
Decision dateNov 29, 2004

Cite For

Application of Mitigating Conditions Under Guideline J
Impact of 10 U.S.C. § 986 Amendments on Security Clearance Eligibility
Consideration of Long-term Rehabilitation 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.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was a cocaine and marijuana abuser. His January 1980 arrest for sale of cocaine--when he was 21 years old--resulted in his March 1980 conviction and a sentence, in part, to serve seven years imprisonment. Shortly thereafter, upon his motion, Applicant's sentence was suspended and he was placed on probation for five years. In September 1980, upon Applicant's appeal, the court of criminal appeals dismissed the "case." It remains unclear if the charge or the appeal was dismissed. Applicant has a spotless record since 1980.	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) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.b	The SOR alleges the court of criminal appeals "dismissed the case."	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was a cocaine and marijuana abuser. His January 1980 arrest for sale of cocaine--when he was 21 years old--resulted in his March 1980 conviction and a sentence, in part, to serve seven years imprisonment. Shortly thereafter, upon his motion, Applicant's sentence was suspended and he was placed on probation for five years. In September 1980, upon Applicant's appeal, the court of criminal appeals dismissed the "case." It remains unclear if the charge or the appeal was dismissed. Applicant has a spotless record since 1980.

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) currently on parole or probation

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

—

1.b

The SOR alleges the court of criminal appeals "dismissed the case."

For Applicant

Unspecified Criminal Conduct

—

Unknown

—

Loading case…

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

FOOTNOTES

CONCLUSION

FORMAL FINDINGS

DECISION