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ISCR Case 02-33719.h1 — CASE

ISCR Case 02-33719.h1granted

Case Headnote

ISCR Case No. 02-33719.h1

grantedDec 28, 2004· Hon. Charles D. Ablard· hearing

Summary

This case concerns a 36-year-old defense contractor employee whose security clearance was GRANTED despite concerns under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The allegations stemmed from a 2000 arrest for indecent exposure. The applicant was arrested in a public restroom after accepting an offer for oral sex from a police officer. He subsequently pleaded nolo contendere to indecent exposure, receiving a fine and a suspended sentence of one year with supervised probation.

The judge considered several mitigating factors. The criminal conduct was an isolated incident that occurred over four years prior to the decision. The applicant demonstrated remorse for his actions and a commitment to avoid similar behavior in the future. Additionally, his wife and employer were aware of the incident, which indicated a lack of ongoing coercion or exploitation.

Ultimately, the judge found that the applicant's isolated incident of criminal conduct, combined with his acknowledgment of the event and subsequent behavior, warranted the granting of his security clearance.

Why the Applicant Prevailed

The applicant's criminal conduct was an isolated incident occurring over four years prior to the decision.
The applicant demonstrated remorse and a commitment to not repeat the behavior.
The applicant's wife and employer were aware of the incident, indicating a lack of ongoing coercion or exploitation.

Conditions Referenced

Disqualifying

E2.A10.1.1raisedCriminal Conduct
E2.A10.1.2.1raisedHistory or Pattern of Criminal Activity
E2.A10.1.2.2raisedSingle Serious Crime or Multiple Lesser Offenses
E2.A4.1.1raisedSexual Behavior
E2.A4.1.2.3raisedCoercion, Exploitation, or Duress
E2.A4.1.2.4raisedLack of Discretion or Judgment

Mitigating

E2.A10.1.3.1appliedNot Recent
E2.A10.1.3.2appliedIsolated Incident
E2.A4.1.3.2appliedBehavior Not Recent
E2.A4.1.3.4appliedNo Longer Serves as a Basis for Coercion

Key Rule Quoted

“"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."”

Procedural Posture

SOR issuedFeb 24, 2004
Answer filedFeb 26, 2004Applicant elected to proceed without a hearing.
Hearing held—Written record only.
Decision dateDec 28, 2004

Cite For

Mitigating Factors for Isolated Criminal Conduct Under Guideline J
Application of Mitigating Conditions for Sexual Behavior Under Guideline D
Consideration of the Whole Person in Security Clearance Determinations.

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 D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The applicant's sexual behavior raised concerns under Guideline D due to a past incident of indecent exposure. However, the judge found that the behavior was not recent and that there was no evidence of subsequent similar conduct, leading to a favorable conclusion for the applicant.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
2.a	Applicant was arrested in 2000 in a public restroom after accepting an offer by a local police officer for oral sex. He plead nolo to indecent exposure and was fined and given a suspended sentence of one year with supervised probation.	For Applicant	Criminal Sexual Conduct	Admitted	—	(b) the behavior happened so long ago, so infrequently, or under such unusual circumstances that it is unlikely to recur and does not cast doubt on curren… (d) the sexual behavior is strictly private, consensual, and discreet	Documented Other

Descriptive standardized rendering of a decided public case (Guideline D). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found in favor of the applicant regarding the criminal conduct concerns under Guideline J. The applicant had a single incident of indecent exposure for which he was fined and placed on probation, but the judge determined that this was an isolated incident and not recent, leading to a favorable outcome for the applicant.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested in 2000 in a restroom after accepting an offer by a local police officer for oral sex. He plead nolo to indecent exposure and was fined and given a suspended sentence of one year with supervised probation.	For Applicant	Sexual Offense Criminal	Convicted	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (b) pressured/coerced and unlikely to recur absent that pressure	—

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

APPEARANCES

DATE: December 28, 2004

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 02-33719

ECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

SYNOPSIS

Applicant is a 36-year-old employee of a defense contractor who was arrested in 2000 in a restroom after accepting an offer by a local police officer for oral sex. He plead nolo to indecent exposure and was fined and given a suspended sentence of one year with supervised probation . This one arrest is the only criminal conduct with which the Applicant has been charged either before or since except for traffic violations. Applicant acknowledged the incident on his SF 86. He has expressed chagrin about the incident, indicated that he has learned his lesson, and that such an incident would never re-occur. Clearance is granted.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding 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 an undated 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. It was received by Applicant on February 24, 2004. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn written statement dated February 26, 2004, Applicant responded to the allegations set forth in the SOR, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government's written case on June 16, 2004. A complete copy of the file of relevant material (FORM) was provided to Applicant, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant did not do so and the case was assigned to me on August 13, 2004.

FINDINGS OF FACT

Applicant admitted to the allegations in the SOR but offered extenuating and mitigating circumstances. After a complete and thorough review of the information in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 36-year-old employee of a defense contractor. He was arrested in May, 2000 in a public restroom after accepting an offer by a local police officer for oral sex. He plead no contest to indecent exposure and was given a suspended sentence of one year with supervised probation, fined $700.00, and ordered to pay court costs.

Applicant had served in the Army for 12 years having been discharged a few months prior to his arrest. He has worked for his employer the past three years. This one arrest is the only criminal conduct with which the Applicant ever has been charged except for traffic violations. Applicant acknowledged the incident and his arrest on his SF 86. His wife and employer are aware of the incident. In his answer to the SOR he expressed chagrin about the incident, indicated that he has learned his lesson, and stated that such an incident would never recur.

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 that it is clearly consistent with the national interest to grant or continue the applicant's 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 legal precepts, factors and conditions above, I conclude the following with respect to all allegations set forth in the SOR:

Applicant's sexual behavior raises concerns under Guideline D (E2.A4.1.1.) since it may subject an individual to coercion, exploitation, or duress (E2.A4.1.2.3.) and of a public nature that reflects lack of discretion or judgment. (E2.A4.1.2.4.) However, certain mitigating conditions (MC) may be applicable. These would include the fact that the behavior was not recent and there is no evidence of subsequent conduct of a similar nature (E2.A4.1.3.2.), and that the behavior no longer serves as a basis for coercion (E2.A4.1.3.4.). Applicant's record since the offense in 2000 and the

knowledge of the incident by his wife and employer justifies the application of both mitigating conditions.

Applicant's arrest for criminal conduct raises issues under Guideline J (E2.A10.1.1) involving a history or pattern of criminal activity creating doubt about a person's judgment, reliability and trustworthiness (E2.A10.1.2.1.) and a single serious crime or multiple lesser offenses (E2.A10.1.2.2.). Applicant's answer indicates that the police officer and not Applicant affirmatively suggested sex and the FORM accepts that interpretation. Applicant was only charged with indecent exposure and did not contest that lesser offense. I conclude that the allegation is mitigated by the fact that it was not recent since it occurred over four years ago (E2.A10.1.3.1.), and is an isolated incident (E2.A10.1.3.2.) since it was the only criminal offense of Applicant.

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 that 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. The entire record of Applicant and his credible statements in his answer relating to his embarrassment and his firm intent never to let such an event occur leads me to a favorable conclusion for him.

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

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

Paragraph 2. Guideline D: FOR APPLICANT

Subparagraph 2.a.: For Applicant

DECISION

After full consideration of all the facts and documents presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted.

Charles D. Ablard

Administrative Judge

FOOTNOTES

02-33719.h1 FOR GOVERNMENT Jason Perry, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-33719.h1.html[6/24/2021 3:07:01 PM] 02-33719.h1