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ISCR Case 02-33777.h1 — CASE

ISCR Case 02-33777.h1granted

Case Headnote

ISCR Case No. 02-33777.h1

grantedAug 24, 2004· Hon. Joseph Testan· hearing

Summary

A 24-year-old secretary employed by a defense contractor was granted a security clearance despite allegations under Guideline E (Personal Conduct) concerning false information on her Security Clearance Application (SF-86), executed on July 17, 2002. The Statement of Reasons alleged that she falsified material facts by responding "no" to two questions regarding her arrest record. Specifically, she failed to disclose an arrest on or about June 8, 1998, in Santa Ana, California, for Possession of Stolen Property, a felony charge that was subsequently dismissed.

The judge determined that the applicant did not intentionally provide false information. For Question 21, which asked about felony charges or convictions, she reasonably believed her "no" response was accurate because she was never formally charged with a crime. Regarding Question 26, concerning other arrests or charges within the last seven years, the judge found that she misread the question and did not intend to deceive.

The decision to grant the clearance was further supported by credible testimony from coworkers, who vouched for the applicant's reliability and trustworthiness. Ultimately, the judge concluded that her belief in the correctness of her responses was reasonable, leading to the granting of the security clearance.

Why the Applicant Prevailed

The applicant believed her response to Question 21 was correct because she was never formally charged with a crime.
The applicant misread Question 26 and did not intend to provide false information regarding her arrest.
Credible testimony from coworkers supported the applicant's reliability and trustworthiness.

Key Rule Quoted

“"It is clearly consistent with the national interest to grant or continue a security clearance for applicant."”

Procedural Posture

SOR issuedMar 5, 2004
Answer filedMar 29, 2004
Hearing heldAug 5, 2004
Decision dateAug 24, 2004

Cite For

Credibility of Applicant's Belief in the Correctness of Her Responses Under Guideline E
Interpretation of Arrest Versus Formal Charges in Security Clearance Applications
Testimony From Coworkers as Evidence of Reliability and Trustworthiness

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: granted

The judge found that the applicant did not intentionally provide false information on a Security Clearance Application (SCA). Both allegations under Guideline E were found for the applicant, leading to the conclusion that granting a security clearance is consistent with the national interest.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	You falsified material facts on a security clearance application (SF-86), executed by you on July 17, 2002, on which you were required to reply to the following question: "Question 21. Have you ever been charged with or convicted of any felony offense?" to which you responded "no"; whereas, in truth, you deliberately failed to list that you had been arrested, as set forth below: (1) You were arrested on or about June 8, 1998, in Santa Ana, California, and charged with Possession of Stolen Property, a felony. The charge was dismissed.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	—	—	—
1.b	You falsified material facts on a security clearance application (SF-86), executed by you on July 17, 2002, on which you were required to reply to the following question: "Question 26. Your Police Record - Other Offenses. For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607. In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25?" to which you responded "no"; whereas, in truth, you deliberately failed to list that you had been arrested, as set forth below: (1) You were arrested on or about June 8, 1998, in Santa Ana, California, and charged with Possession of Stolen Property, a felony. The charge was dismissed.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). 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: August 24, 2004

In Re: -------------------- SSN: ----------- Applicant for Security Clearance

ISCR Case No. 02-33777 ISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Applicant did not intentionally provide false information in response to two questions on a Security Clearance Application (SCA). Clearance is granted.

STATEMENT OF CASE

On March 5, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, 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 and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. Applicant responded to the SOR in writing on March 29, 2004. The case was assigned to the undersigned on June 17, 2004. A Notice of Hearing was issued on July 8, 2004, and the hearing was held on August 5, 2004. The transcript was received on August 23, 2004. RULINGS ON PROCEDURE At the hearing, Department Counsel moved to amend the SOR by adding an allegation under Guideline E. Applicant did not object, and the Motion was granted. The SOR was amended by adding Paragraph 1b. and 1b.(1), which are as follows: 1b.You falsified material facts on a security clearance application (SF-86), executed by you on July 17, 2002, on which you were required to reply to the following question: "Question 26. Your Police Record - Other Offenses. For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607. In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25?" to which you responded "no"; whereas, in truth, you deliberately failed to list that you had been arrested, as set forth below: (1) You were arrested on or about June 8, 1998, in Santa Ana, California, and charged with Possession of Stolen Property, a felony. The charge was dismissed.

FINDINGS OF FACT

Applicant is a 24 year old secretary. She has been employed by a defense contractor for approximately two years. In 1998, applicant was arrested. The police officer involved in the arrest requested that applicant be prosecuted for possession of a stolen vehicle, a felony. The case was referred to the District Attorney's office, but the case was rejected for prosecution, and applicant was never formally charged with a crime. Applicant completed an SCA on July 17, 2002. In response to Question 21, which asked, "Have you ever been charged with or convicted of any felony offense?" applicant stated "no." Applicant believes that she responded correctly to this question because she was never formally charged. Although it can be reasonably argued that applicant was charged by the police, her position that she was never charged because (1) the prosecutor declined the police department's request to prosecute and (2) she never had to appear in court, is also reasonable. More importantly, because I find that applicant truly believed her "no" response was the correct response, I conclude that she had no intent to provide false information in response to this question. Accordingly, SOR Allegation 1a is found for applicant. Applicant's "no" response to Question 26, which is referenced above in the RULINGS ON PROCEDURE section of this decision, was clearly false. Unlike Question 21, this question asked about arrests, and applicant knew at the time she completed the SCA she had been arrested. Applicant testified that she did not intend to provide a false answer. She further testified that she misread the question and thought it, like the previous five questions (Questions 21 through 25), was only asking about charges, not arrests. Considering the evidence as a whole, including applicant's demeanor and conduct while testifying, I find applicant's testimony that she misread the question, and did not intentionally provide the false information, to be credible and worthy of belief. Accordingly, I further find that applicant did not intend to provide false information in response to this question. Based on the foregoing, SOR Allegation 1bis found for applicant. One of applicant's coworkers appeared at the hearing and testified that applicant is reliable and trustworthy and one of the best secretaries the company has had. Letters from seven other coworkers of applicant, including at least two of her supervisors, were admitted into evidence (Exhibits C through I). Applicant is described by these coworkers as a hard working, reliable, and trustworthy individual.

CONCLUSION

I conclude that applicant did not intentionally provided false information on the SCA she completed on July 17, 2002. Accordingly, Guideline E is found for applicant.

FORMAL FINDINGS

PARAGRAPH 1: FOR THE APPLICANT Both subparagraphs found for applicant.

DECISION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for applicant. ____________________________ Joseph Testan Administrative Judge

FOOTNOTES

02-33777.h1 FOR GOVERNMENT Edward Loughran, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-33777.h1.html[6/24/2021 3:07:02 PM] 02-33777.h1