ISCR Case 03-11150.h1

Case Headnote

ISCR Case No. 03-11150.h1

grantedMay 17, 2006· Hon. Erin C. Hogan· hearing

Summary

A 52-year-old electronics technician with military service was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons cited his failure to disclose an April 15, 1995, grand theft arrest on his December 2000 security clearance application and providing false information about his employment status at the time of the arrest.

However, the judge found that the 1995 arrest was an isolated incident and not recent, with no subsequent arrests, mitigating the criminal conduct concern. The applicant's failure to disclose the arrest was also mitigated, as it stemmed from a reasonable belief, based on legal advice, that reporting it was unnecessary.

Ultimately, the judge determined that the applicant's actions were sufficiently mitigated by the time elapsed since the incident, his clean record thereafter, and his understanding that the offense was minor based on legal counsel. Consequently, the security clearance was granted.

Why the Applicant Prevailed

The applicant's 1995 arrest was an isolated incident and not recent, mitigating the criminal conduct concern.
The applicant had no subsequent arrests since the 1995 incident, demonstrating rehabilitation.
The applicant's failure to disclose the arrest was based on a reasonable belief, influenced by legal counsel, that it was not necessary to report.

Conditions Referenced

Disqualifying

E2.A10.1.2.1raisedAllegations or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged
E2.A5.1.2.1raisedReliable Unfavorable Information Provided by Associates, Employers, Coworkers, Neighbors, and Other Acquaintances
E2.A5.1.2.2raisedThe Deliberate Omission, Concealment or Falsification of Relevant and Material Facts

Mitigating

E2.A10.1.3.1appliedThe Criminal Behavior Was Not Recent
E2.A10.1.3.2appliedThe Crime Was an Isolated Incident
E2.A10.1.3.6appliedThere Is Clear Evidence of Successful Rehabilitation
E2.A5.1.3.1appliedThe Information Was Unsubstantiated or Not Pertinent to a Determination of Judgment, Trustworthiness, or Reliability
E2.A5.1.3.6appliedA Refusal to Cooperate Was Based on Advice From Legal Counsel

Key Rule Quoted

“The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance.”
— Executive Order 10865

Procedural Posture

SOR issuedDec 10, 2004
Answer filedJan 4, 2005
Hearing heldApr 6, 2006via video tele-conference
Decision dateMay 17, 2006

Cite For

Mitigation of Criminal Conduct Due to Time Elapsed and Isolated Nature of the Incident
Reasonable Belief Based on Legal Advice as a Mitigating Factor
Successful Rehabilitation Demonstrated by Lack of Subsequent Arrests

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

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant failed to list his April 15, 1995, arrest for grand theft on his December 2000 security clearance application.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Admitted	(b) deliberately providing false information to an investigator or official	(c) offense is minor, long ago, infrequent, or unique circumstances	Claimed Explanation of Omission Credible
1.b	Applicant provided false information in response to interrogatories regarding his employment status on the date of his arrest.	For Applicant	Lack of Candor in InterviewNOT DELIBERATE	—	Denied	(b) deliberately providing false information to an investigator or official	(c) offense is minor, long ago, infrequent, or unique circumstances	Claimed Explanation of Omission Credible

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Applicant failed to list his April 15, 1995, arrest for grand theft on his December 2000 security clearance application.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Admitted

(b) deliberately providing false information to an investigator or official

(c) offense is minor, long ago, infrequent, or unique circumstances

Claimed

Explanation of Omission Credible

1.b

Applicant provided false information in response to interrogatories regarding his employment status on the date of his arrest.

For Applicant

Lack of Candor in InterviewNOT DELIBERATE

—

Denied

(b) deliberately providing false information to an investigator or official

(c) offense is minor, long ago, infrequent, or unique circumstances

Claimed

Explanation of Omission Credible

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant's April 15, 1995, arrest for grand theft has been mitigated based on the fact that it was not recent and it was an isolated incident. He has had no subsequent arrests.	For Applicant	Theft or Larceny	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 (b) pressured/coerced and unlikely to recur absent that pressure (c) no reliable evidence the individual committed the offense	Credited No Subsequent Offenses Credited Acknowledgment and Remorse Credited Rehabilitation Evidence

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

2.a

Applicant's April 15, 1995, arrest for grand theft has been mitigated based on the fact that it was not recent and it was an isolated incident. He has had no subsequent arrests.

For Applicant

Theft or Larceny

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

(b) pressured/coerced and unlikely to recur absent that pressure

(c) no reliable evidence the individual committed the offense

Credited

No Subsequent Offenses

Credited

Acknowledgment and Remorse

Credited

Rehabilitation Evidence

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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

SYNOPSIS

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES

APPEARANCES