CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 03-13002.h1 — CASE

ISCR Case 03-13002.h1denied

Case Headnote

ISCR Case No. 03-13002.h1

deniedJul 16, 2004· Hon. James A. Young· hearing

Summary

A 47-year-old president of a defense contractor was denied a security clearance under Guideline J (Criminal Conduct) due to a history of criminal conduct, specifically a felony conviction for possession of marijuana. The Statement of Reasons detailed three arrests: one in January 1976 for marijuana possession, another in 1976 for drinking in public, and a third in March 1978, which resulted in a felony conviction for marijuana possession and a five-year confinement sentence.

The applicant was found to be disqualified from holding a security clearance because of the felony conviction and sentence exceeding one year. While the judge acknowledged the applicant's demonstrated rehabilitation and a clean record spanning over 26 years, and recommended consideration for a waiver of the statute, the denial was mandated by 10 U.S.C. § 986.

Ultimately, the security clearance was denied because the applicant was statutorily barred under 10 U.S.C. § 986 due to the felony conviction with a sentence in excess of one year, despite the presence of mitigating conditions.

Why the Applicant Was Denied

Applicant was barred from receiving a security clearance under 10 U.S.C. § 986 due to a felony conviction with a sentence exceeding one year.
The judge found that the disqualifying condition was met based on the applicant's felony possession of marijuana conviction.

Conditions Referenced

Disqualifying

E2.A10.1.2.1raisedCriminal Conduct
E2.A10.1.2.2raisedSerious Offense
E2.A10.1.2.2raisedSentence in Excess of One Year

Mitigating

E2.A10.1.3.1appliedNot Recent Criminal Conduct
E2.A10.1.3.6appliedSuccessful Rehabilitation

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 issuedJan 28, 2004
Answer filedFeb 13, 2004
Hearing heldApr 11, 2004
Decision dateJul 16, 2004

Cite For

Application of 10 U.S.C. § 986 Regarding Felony Convictions
Successful Rehabilitation Under Guideline J
Disqualifying Conditions Related to Criminal Conduct

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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant had a history of criminal conduct, including convictions for possession of marijuana and drinking in public. While the applicant mitigated some concerns due to the age of the offenses and evidence of rehabilitation, the judge ultimately ruled against the applicant due to a statutory disqualification under 10 U.S.C. § 986, which bars security clearance for those sentenced to confinement for more than one year. Therefore, the application for security clearance was denied.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested in January 1976 and subsequently convicted of possession of marijuana.	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.b	Applicant was arrested in 1976 and charged with drinking in public.	For Applicant	Unspecified Criminal Conduct	Convicted	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.c	Applicant was arrested in March 1978, subsequently convicted of felony possession of marijuana, and sentenced to confinement for five years.	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—
1.d	Applicant is disqualified from holding a security clearance because of his sentence in excess of a year.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

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: July 16, 2004

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-13002

ECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

SYNOPSIS

In 1976, when he was 18 years old, Applicant was convicted of possession of marijuana and, later that year, of drinking in public. In 1978, he was convicted of felony possession of marijuana and sentenced to confinement for five years, suspended. Applicant mitigated the security concerns raised by his criminal conduct, but absent a waiver from the Secretary of Defense, is barred from receiving a security clearance under 10 U.S.C. § 986. Clearance is denied. I recommend further consideration of this case for a waiver of 10 U.S.C. § 986.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 28 January 2004, DOHA issued a Statement of Reasons (1) (SOR) detailing the basis for its decision-security concerns raised under Guideline J (Criminal Conduct) of the Directive. Applicant answered the SOR in writing on 13 February 2004 and elected to have a hearing before an administrative judge. The case was assigned to me on 29 March 2004. On 11 April 2004, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the hearing transcript (Tr.) on 20 May 2004.

FINDINGS OF FACT

Applicant is a 47-year-old president of a defense contractor. On 9 January 1976, Applicant, who was then 18 years old, was arrested for distributing marijuana and possession of marijuana. He gave two marijuana cigarettes to an acquaintance who was working undercover for the police. The charges were reduced from felonies to misdemeanor possession. Applicant was convicted and given a 35-day suspended sentence and was ordered to pay a small fine.

Later that year, Applicant was arrested for drinking in public. He ended up paying a $100 fine for this offense.

In March 1978, Applicant was charged with possession of marijuana with the intent to distribute, a felony. He was found guilty of felony possession of marijuana and sentenced to five years in jail, suspended. Applicant was arrested after police found a little more than one ounce of marijuana in his room in a house he shared. After this arrest, Applicant stopped smoking marijuana and associating with those who did. He moved to a different college, applied himself to his studies, and consistently made the Dean's List.

Applicant does not use illegal substances and has not had any run-ins with the law since 1978. Applicant has been steadily employed, working for a city and then some technology companies. Dissatisfied with the quality of work produced and the ethics of the companies for which he worked, Applicant formed his owned company. It now has about 20 hand-picked employees. Applicant's employees, friends, and the chief executive officer of the company testified to his good character, integrity, and ethics.

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. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

CONCLUSION

In the SOR, DOHA alleged Applicant was arrested in January 1976 and subsequently convicted of possession of marijuana (¶ 1.a.), was arrested in 1976 and charged with drinking in public (¶ 1.b.), was arrested in March 1978, subsequently convicted of felony possession of marijuana, and sentenced to confinement for five years (¶ 1.c.) and is disqualified from holding a security clearance because of his sentence in excess of a year (¶ 1.d.).

The Government established by substantial evidence and Applicant's admissions each of the allegations in the SOR. Applicant has admitted a history of criminal conduct (DC E2.A10.1.2.1), including a single serious offense (felony possession of marijuana) and two lesser offenses (possession of marijuana and drinking in public) (E2.A10.1.2.2.). But several mitigating conditions apply. The criminal behavior was not recent (MC E2.A10.1.3.1.)-the latest incident being over 26 years old. There is also clear evidence of successful rehabilitation (MC E2.A10.1.3.6.)-he has not been in trouble with the law in over 26 years, he no longer uses illegal drugs or associates with those who do, he completed college, and has become a productive, law abiding citizen.

I have also considered the adjudicative process factors in evaluating Applicant's case. Directive ¶ 6.3. Based on Applicant's age at the time of his criminal conduct, the length of time since he committed the criminal acts, the presence of rehabilitation, and the unlikely probability of a recurrence of such conduct, I find for Applicant on ¶¶ 1.a.-1.c.

Absent a waiver from the Secretary of Defense, the Department of Defense may not grant or continue a security clearance for any applicant who has been sentenced by a court in the U.S. to confinement for more than one year. 10 U.S.C. § 986. Applicant is subject to 10 U.S.C. § 986 as a result of his sentence to confinement for five years for felony possession of marijuana. The statute applies even though Applicant did not serve any time in prison for that offense. ISCR Case No. 01-13566 at 5 (App. Bd. Apr. 15, 2003).

Under the circumstances, I am required to find against Applicant on ¶ 1.d. As my adverse security decision against Applicant is based solely on the requirement of 10 U.S.C. § 986, it is appropriate for me to make a recommendation as to whether Applicant's case should be considered for waiver. DOHA Operating Instruction 64 ¶ 3.e. I recommend Applicant be considered for a waiver of 10 U.S.C. § 986.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline J: AGAINST APPLICANT

Subparagraph 1.a.: For Applicant

Subparagraph 1.b.: For Applicant

Subparagraph 1.c.: For Applicant

Subparagraph 1.d.: Against Applicant

DECISION

In light of all of 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. Clearance is denied. I recommend further consideration of this case for a waiver of 10 U.S.C. § 986.

James A. Young

Administrative Judge

1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (Directive).

FOOTNOTES

03-13002.h1 FOR GOVERNMENT Francisco J. Mendez, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-13002.h1.html[6/24/2021 3:21:49 PM] 03-13002.h1