ISCR Case 03-18297.h2

Case Headnote

ISCR Case No. 03-18297.h2

grantedDec 6, 2004· Hon. Joseph Testan· hearing

Summary

A 39-year-old defense contractor was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The Statement of Reasons cited the applicant's history of felony convictions and allegations of falsifying his Security Clearance Application (SCA) by answering "no" to questions about felony and drug-related offenses.

The applicant had multiple felony convictions, including charges in May 1984 for Criminal Damage to Property, Burglary (two counts), and Theft, for which he received concurrent sentences that were immediately changed to 30 days in jail and four years probation. In 1985, he was charged with felony Possession of Marijuana With Intent to Sell and Possession of Drug Paraphernalia, receiving sentences that were later changed to four years of supervised probation. All records of these convictions were expunged in July 2000.

The judge determined that the applicant did not intentionally falsify his SCA, noting his testimony that he believed he qualified for an exception based on the expungement orders and his voluntary disclosure of his criminal history to a DSS agent. The decision to grant the clearance was further supported by the applicant's significant rehabilitation since his last conviction in 1986, including earning two Associate degrees, maintaining stable employment, and demonstrating a positive work history and character.

Why the Applicant Prevailed

The applicant served less than one year in prison, making 10 U.S.C. 986 inapplicable.
The applicant provided clear evidence of reform and rehabilitation since his last conviction.
The applicant's positive work history and character references supported his case for a security clearance.

Conditions Referenced

Disqualifying

J.1.braisedCriminal Conduct Raises Questions About Judgment, Reliability, and Trustworthiness.
J.1.craisedConviction in a Federal or State Court, Including a Court-martial of a Crime and Sentenced to Imprisonment for a Term Exceeding One Year.

Mitigating

J.2.aappliedThe Criminal Behavior Was Not Recent.
J.2.fappliedThere Is Clear Evidence of Successful Rehabilitation.
E.2.aappliedThe Falsification Was Not Intentional.

Key Rule Quoted

“It is now clearly consistent with the national interest to grant applicant a security clearance.”

Procedural Posture

SOR issuedApr 19, 2004
Answer filedMay 3, 2004
Hearing heldJul 7, 2004
Decision dateDec 6, 2004Decision remanded for consideration of amended statute.

Cite For

Application of Mitigating Conditions for Rehabilitation Under Guideline J
Consideration of Amended Statutes Affecting Security Clearance Eligibility
Evaluation of Intent in Falsification of Security Clearance Applications Under Guideline E

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 provided false, material information in response to two questions on the SCA.	For Applicant	Falsification Security FormNOT DELIBERATESELF-CORRECTED	Criminal Conduct	Denied	—	(a) prompt, good-faith correction before being confronted	Claimed Corrected Falsification Promptly
1.b	Applicant stated 'no' in response to questions regarding felony offenses and drug-related offenses on the SCA.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED	Criminal Conduct	Denied	—	(a) prompt, good-faith correction before being confronted	Claimed Corrected Falsification Promptly
1.c–2.b	3 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant		—		—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Applicant provided false, material information in response to two questions on the SCA.

For Applicant

Falsification Security FormNOT DELIBERATESELF-CORRECTED

Criminal Conduct

Denied

—

(a) prompt, good-faith correction before being confronted

Claimed

Corrected Falsification Promptly

1.b

Applicant stated 'no' in response to questions regarding felony offenses and drug-related offenses on the SCA.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED

Criminal Conduct

Denied

—

(a) prompt, good-faith correction before being confronted

Claimed

Corrected Falsification Promptly

1.c–2.b

3 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)

For Applicant

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In May 1984, applicant was charged in an Amended Information with (1) Criminal Damage to Property, (2) Burglary (two counts), and (3) Theft. (1) In May 1984, he pleaded guilty to the amended charges, and was sentenced to one year in jail on the Criminal Damage to Property charge, three to five years on each of the two Burglary counts, and three to five years on the Theft charge, with all sentences to run concurrently. Immediately after handing down this sentence, the Court granted applicant's "oral application for probation," and changed the sentence to 30 days in jail and four years probation. In July 2000, the Court ordered that all records of applicant's conviction be expunged.	For Applicant	Theft or Larceny	Conduct No Charge	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	(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	—
1.b	In 1985, applicant was charged with (1) Possession of Marijuana With Intent to Sell (a felony), and (2) Possession of Drug Paraphernalia. He pleaded guilty to both charges. In April 1986, he was sentenced to four to ten years in prison on the first charge, and one year in jail on the second charge. In August 1986, applicant's sentence was changed by the Court to four years of supervised probation. In September 1988, the Court released applicant from probation. In July 2000, the Court ordered that all records of applicant's conviction be expunged.	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	(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	—
1.c	Applicant completed a Security Clearance Application (SCA) on October 17, 2001. Applicant provided false, material information in response to two questions on the SCA. In response to Question 21, which asked, "Have you ever been charged with or convicted of any felony offenses? (Include those under the Uniform Code of Military Justice.) For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607," applicant stated "no." In response to Question 24, which asked, "Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?" For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607," applicant stated "no." Based on applicant's aforementioned criminal history, the correct response to both questions was "yes." Applicant admitted that he had doubts about the correctness of his responses (TR at 41), but testified he thought, based on the language of the expungement orders issued in his cases, that he qualified for the exception referenced in the two questions. He denies any attempt to mislead the Government. Based on applicant's testimony, and the fact he voluntarily disclosed his criminal history to the DSS agent who interviewed him in August 2002 before the DSS agent confronted him with the facts (TR at 49-51), I find that applicant did not intentionally falsify his SCA. Accordingly, Guideline E is found for applicant.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	—	—	—
2.a	Since his release from prison in 1986, applicant has been a model citizen. He went to college, earned two Associate degrees in 1990, and in the same year went to work for his current employer, where, by all accounts, he does an excellent job. He has not been involved in any additional criminal activity.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	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	Documented Rehabilitation Evidence
2.b	Given the passage of time since applicant engaged in criminal conduct, and his clear evidence of reform and rehabilitation, I conclude that he is unlikely to engage in criminal conduct in the future.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	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	Documented Rehabilitation Evidence

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In May 1984, applicant was charged in an Amended Information with (1) Criminal Damage to Property, (2) Burglary (two counts), and (3) Theft. (1) In May 1984, he pleaded guilty to the amended charges, and was sentenced to one year in jail on the Criminal Damage to Property charge, three to five years on each of the two Burglary counts, and three to five years on the Theft charge, with all sentences to run concurrently. Immediately after handing down this sentence, the Court granted applicant's "oral application for probation," and changed the sentence to 30 days in jail and four years probation. In July 2000, the Court ordered that all records of applicant's conviction be expunged.

For Applicant

Theft or Larceny

Conduct No Charge

Admitted

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

(c) currently on parole or probation

(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

—

1.b

In 1985, applicant was charged with (1) Possession of Marijuana With Intent to Sell (a felony), and (2) Possession of Drug Paraphernalia. He pleaded guilty to both charges. In April 1986, he was sentenced to four to ten years in prison on the first charge, and one year in jail on the second charge. In August 1986, applicant's sentence was changed by the Court to four years of supervised probation. In September 1988, the Court released applicant from probation. In July 2000, the Court ordered that all records of applicant's conviction be expunged.

For Applicant

Drug Related Criminal Charge

Conduct No Charge

Admitted

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

(c) currently on parole or probation

(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

—

1.c

Applicant completed a Security Clearance Application (SCA) on October 17, 2001. Applicant provided false, material information in response to two questions on the SCA. In response to Question 21, which asked, "Have you ever been charged with or convicted of any felony offenses? (Include those under the Uniform Code of Military Justice.) For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607," applicant stated "no." In response to Question 24, which asked, "Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?" For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607," applicant stated "no." Based on applicant's aforementioned criminal history, the correct response to both questions was "yes." Applicant admitted that he had doubts about the correctness of his responses (TR at 41), but testified he thought, based on the language of the expungement orders issued in his cases, that he qualified for the exception referenced in the two questions. He denies any attempt to mislead the Government. Based on applicant's testimony, and the fact he voluntarily disclosed his criminal history to the DSS agent who interviewed him in August 2002 before the DSS agent confronted him with the facts (TR at 49-51), I find that applicant did not intentionally falsify his SCA. Accordingly, Guideline E is found for applicant.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Denied

—

2.a

Since his release from prison in 1986, applicant has been a model citizen. He went to college, earned two Associate degrees in 1990, and in the same year went to work for his current employer, where, by all accounts, he does an excellent job. He has not been involved in any additional criminal activity.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

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

Documented

Rehabilitation Evidence

2.b

Given the passage of time since applicant engaged in criminal conduct, and his clear evidence of reform and rehabilitation, I conclude that he is unlikely to engage in criminal conduct in the future.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

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

Documented

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

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES