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ISCR Case 03-06167.h1 — CASE

ISCR Case 03-06167.h1denied

Case Headnote

ISCR Case No. 03-06167.h1

deniedJun 29, 2005· Hon. John Grattan Metz, Jr.· hearing

Summary

A 41-year-old computer technician was denied reinstatement of his security clearance under Guideline E (Personal Conduct) due to a history of serious misconduct. The Statement of Reasons detailed an incident in 1997 where the applicant deliberately cut the brake lines of his paramour, who was eight months pregnant. He was subsequently charged with adultery, destruction of private property, and aggravated assault, ultimately pleading guilty to adultery and destruction of private property.

The judge found that these actions demonstrated poor judgment and unreliability, raising disqualifying conditions E2.A5.1. and E2.A5.2. The denial was based on the applicant's admission of past criminal behavior and his failure to provide sufficient evidence of rehabilitation or mitigation for these actions.

Ultimately, the judge determined that the applicant's demonstrated poor judgment and unreliability were inconsistent with the requirements for access to classified information, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant admitted to serious past misconduct involving criminal behavior.
The applicant failed to provide evidence of rehabilitation or mitigation of his past actions.
The judge determined that the applicant's poor judgment and unreliability were inconsistent with the requirements for access to classified information.

Conditions Referenced

Disqualifying

E2.A5.1.raisedCriminal Conduct
E2.A5.2.raisedPersonal Conduct

Key Rule Quoted

“The government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedAug 23, 2004
Answer filedAug 30, 2004
Hearing heldJan 12, 2005
Decision dateJun 29, 2005

Cite For

Disqualifying Conduct Under Guideline E Due to Criminal Behavior
Failure to Demonstrate Rehabilitation or Mitigation
Importance of Judgment and Reliability 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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on personal conduct concerns, citing demonstrated poor judgment and unreliability. The applicant's request for a security clearance was denied due to the severity of past misconduct.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant deliberately cut the automobile brake lines of his 8-months-pregnant paramour.	Against Applicant	Questionable Judgment GeneralFOUND DELIBERATE	—	Admitted	—	—	—
1.b	Applicant was charged with adultery, destruction of private property, and aggravated assault, and pleaded guilty to adultery and destruction of private property.	Against Applicant	Questionable Judgment GeneralFOUND DELIBERATE	—	Admitted	—	—	—

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: June 29, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-06167

DECISION OF ADMINISTRATIVE JUDGE

JOHN GRATTAN METZ, JR.

SYNOPSIS

Applicant's demonstrated poor judgement and unreliability disqualifies for a security clearance. Clearance denied.

STATEMENT OF CASE

Applicant challenges the 23 August 2004 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of his clearance because of personal conduct. (1) Applicant answered the SOR on 30 August 2004 and requested a hearing. DOHA assigned the case to me 19 November 2004 and I convened a hearing on 12 January 2005. DOHA received the transcript on 21 January 2005.

FINDINGS OF FACT

Applicant admitted the Guideline E allegations; accordingly, I incorporate his admissions as findings of fact. He is a 41- year-old computer technician employed by a defense contractor since March 2002, seeking reinstatement of the clearance he held in the Army until approximately May 1998.

In August 1997, Applicant deliberately cut the automobile brake lines of his 8-months-pregnant paramour. (2) Applicant was quickly charged with adultery, destruction of private property (by cutting the brake lines), and aggravated assault (GE 3) and tried by general court-martial. Pursuant to a pre-trial agreement, Applicant pleaded to adultery and destruction of private property; the aggravated assault charge was dismissed. Applicant's pleas were provident, and he was found guilty by judge alone. Applicant elected to be sentenced by members (the military equivalent of a jury), but procedural irregularities ultimately caused Applicant to receive no sentence for his crimes. However, he did receive an other-than-honorable discharge in lieu of court-martial (GE 7).

Applicant cut his paramour's brake lines because he wanted her to leave him alone. He claims he only wanted to scare her, not hurt her. However, he acknowledged that he was concerned about his Army career and his security clearance if the Army found out about his adultery. At hearing, Applicant acknowledged his past poor judgment and pleaded the passage of time since his crime. He did not otherwise present evidence of extenuation, mitigation, or rehabilitation.

POLICIES

The Directive, Enclosure 2 lists adjudicative guidelines to be considered in evaluating an Applicant's suitability for access to classified information. Administrative Judges must assess both disqualifying and mitigating conditions under each adjudicative issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in Section 6.3. of the Directive. The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative guidelines should be followed whenever a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant, applicable, adjudicative guidelines are Guideline E (Personal Conduct).

BURDEN OF PROOF

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an Applicant's security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then refute, extenuate, or mitigate the government's case. Because no one has a right to a security clearance, the Applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The "clearly consistent with the national interest" standard compels resolution of any reasonable doubt about an Applicant's suitability for access in favor of the government. (3)

CONCLUSION

The Government established a Guideline E case and Applicant did not mitigate the security concerns. Although the crime occurred over seven years ago, Applicant's misconduct was egregious and demonstrates extraordinarily poor judgement and unreliability inconsistent with access to classified information. Only a technical error by the government kept Applicant from leaving the Army with a court-awarded bad conduct discharge. Applicant pleads the passage of time and a desire for a second chance as a basis for receiving his clearance, but neither substitutes for actual evidence of extenuation, mitigation, or rehabilitation, which Applicant failed to provide. I resolve Guideline E against Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline E: AGAINST THE APPLICANT

Subparagraph a: Against the Applicant

Subparagraph b: Against the Applicant

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.

John G. Metz, Jr.

Administrative Judge

1. Required by Executive Order 10865 and Department of Defense Directive 5220.6, as amended (Directive). 2. Applicant and his paramour met at an office function in December 1996 and had a brief sexual affair between December 1996 and January 1997, when she discovered she was pregnant. However, paternity was an issue, as she was sexually active at that time with an ex-boyfriend. By August 1997, the paramour was pressing Applicant to participate in a paternity test, and he was resisting. The paramour's efforts to contact Applicant, lead to his wife's discovery of both the affair and the pregnancy. Ironically, the wife was also pregnant at the time.

3. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

FOOTNOTES

03-06167.h1 FOR GOVERNMENT Nichole Ligon Noel, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-06167.h1.html[6/24/2021 3:13:05 PM] 03-06167.h1