ISCR Case 03-01803.h1

Case Headnote

ISCR Case No. 03-01803.h1

grantedJun 8, 2004· Hon. Philip S. Howe· hearing

Summary

A 40-year-old CEO with a history of eight arrests over 19 years was granted a security clearance, despite initial concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant's record included three DUI arrests, an aggravated assault charge (resulting in a conviction for transmitting a provocative gesture), attempted drug use, and charges related to credit card fraud, resisting arrest, and forgery, which were later dropped or dismissed. Other incidents involved battery charges, one against his pregnant wife and another by his stepfather, both of which were dismissed.

The applicant's last offense occurred three years prior to the decision, marking a significant period without further criminal behavior. While some charges resulted in convictions, many were dismissed or reduced. The government conceded that the alcohol consumption concerns were mitigated, and the applicant demonstrated successful rehabilitation and positive behavioral changes following past incidents.

Ultimately, the judge found that granting the security clearance was consistent with national interest, applying mitigating conditions related to the passage of time, positive changes in behavior, and the nature of the offenses.

Why the Applicant Prevailed

The applicant's last offense occurred three years prior, showing a significant gap in criminal behavior.
The applicant demonstrated successful rehabilitation and positive changes in behavior after past incidents.
The government conceded that the alcohol consumption concerns were mitigated.

Conditions Referenced

Disqualifying

DC 1raisedAllegations or Admissions of Criminal Conduct, Regardless of Whether the Person Was Formally Charged.
DC 2raisedA Single Serious Crime or Multiple Lesser Offenses.

Mitigating

MC 1appliedThe Criminal Behavior Was Not Recent.
MC 5appliedAcquittal.
MC 6appliedThere Is Clear Evidence of Successful Rehabilitation.
MC 2appliedThe Problem Occurred a Number of Years Ago and There Is No Indication of a Recent Problem.
MC 3appliedPositive Changes in Behavior Supportive of Sobriety.

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 issuedApr 30, 2003
Answer filedJun 16, 2003Applicant responded to SOR allegations.
Hearing heldFeb 5, 2004Hearing convened to determine security clearance.
Decision dateJun 8, 2004

Cite For

Mitigation of Criminal Conduct Under Guideline J Due to Time Elapsed Since Last Offense
Successful Rehabilitation in the Context of Multiple Arrests
Mitigation of Alcohol Consumption Concerns When Supported by Professional Evaluation

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	The applicant has a history of alcohol-related incidents, including three DUI arrests.	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	(b) acknowledges the pattern and has established modified use or abstinence (c) participating in counseling/treatment with satisfactory progress, no prior relapse	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

2.a

The applicant has a history of alcohol-related incidents, including three DUI arrests.

For Applicant

DUI or DWI Alcohol

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

(b) acknowledges the pattern and has established modified use or abstinence

(c) participating in counseling/treatment with satisfactory progress, no prior relapse

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested and charged with aggravated assault and communicating a threat to another serviceman. He was convicted at a summary court-martial of transmitting a provocative gesture, and fined $100. The summary court-martial acquitted him of the assault charge.	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	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.b	Applicant was found guilty upon his plea of attempted drug use. The Court fined him $100 and the time served in jail.	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	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.c	Applicant was arrested and charged with fraud involving stolen credit cards, fraudulent use of a credit card, resisting a police officer without violence, and forgery. The first two charges were dropped, and the second two were nolle prosequi by the local prosecutor in 1991.	For Applicant	Fraud or Deception Criminal	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.d	Applicant was arrested on a charge of battery on his pregnant wife. The charges were later dropped by the prosecutor and a 'No Information' filed by the prosecutor on March 22, 1990.	For Applicant	Domestic Violence	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.e	Applicant was arrested in December 1992 for operating a motor vehicle while intoxicated (OMVI). He pled guilty to an amended charge of reckless operation of motor vehicle.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.f	Applicant was sentenced to three days in jail (suspended), fined $300 plus court costs, and ordered to attend an alcohol education program for OMVI.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.g	Applicant was arrested in 2001 for driving under the influence of alcohol (DUI), marked lane violations, and persistent disorderly conduct while under arrest. He was found guilty in May 2002.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.h	During the period of his license suspension, Applicant drove his company owned car without the ignition interlock and the DUI license plate designation.	For Applicant	Traffic Offense Pattern	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.i	Applicant was arrested by the police on a domestic battery charge brought against him by his stepfather. These charges were later dismissed as untrue.	For Applicant	Domestic Violence	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was arrested and charged with aggravated assault and communicating a threat to another serviceman. He was convicted at a summary court-martial of transmitting a provocative gesture, and fined $100. The summary court-martial acquitted him of the assault charge.

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

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

—

1.b

Applicant was found guilty upon his plea of attempted drug use. The Court fined him $100 and the time served in jail.

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

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

—

1.c

Applicant was arrested and charged with fraud involving stolen credit cards, fraudulent use of a credit card, resisting a police officer without violence, and forgery. The first two charges were dropped, and the second two were nolle prosequi by the local prosecutor in 1991.

For Applicant

Fraud or Deception Criminal

Dismissed or Nolle Prossed

Admitted

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

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

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

—

1.d

Applicant was arrested on a charge of battery on his pregnant wife. The charges were later dropped by the prosecutor and a 'No Information' filed by the prosecutor on March 22, 1990.

For Applicant

Domestic Violence

Dismissed or Nolle Prossed

Admitted

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

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

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

—

1.e

Applicant was arrested in December 1992 for operating a motor vehicle while intoxicated (OMVI). He pled guilty to an amended charge of reckless operation of motor vehicle.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

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

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

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

—

1.f

Applicant was sentenced to three days in jail (suspended), fined $300 plus court costs, and ordered to attend an alcohol education program for OMVI.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

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

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

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

—

1.g

Applicant was arrested in 2001 for driving under the influence of alcohol (DUI), marked lane violations, and persistent disorderly conduct while under arrest. He was found guilty in May 2002.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

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

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

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

—

1.h

During the period of his license suspension, Applicant drove his company owned car without the ignition interlock and the DUI license plate designation.

For Applicant

Traffic Offense Pattern

Conduct No Charge

Admitted

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

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

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

—

1.i

Applicant was arrested by the police on a domestic battery charge brought against him by his stepfather. These charges were later dismissed as untrue.

For Applicant

Domestic Violence

Dismissed or Nolle Prossed

Admitted

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

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

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

—

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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

FOOTNOTES