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ISCR Case 03-18297.h1 — CASE

ISCR Case 03-18297.h1denied

Case Headnote

ISCR Case No. 03-18297.h1

deniedAug 6, 2004· Hon. Joseph Testan· hearing

Summary

A 39-year-old defense contractor employee was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to a history of felony convictions and misrepresentations on his Security Clearance Application (SCA). The applicant falsely answered "no" to questions regarding felony and drug/alcohol-related charges or convictions, despite a criminal record including multiple felony convictions for criminal damage to property, burglary, theft, and possession of marijuana with intent to sell. These offenses resulted in sentences exceeding one year in prison.

While the applicant admitted doubts about his responses, he testified he believed expungement orders allowed him to answer "no." However, the judge found that the applicant did not intentionally falsify his SCA. The applicant demonstrated significant rehabilitation since his 1986 release from prison, earning two Associate degrees and maintaining consistent employment with positive performance reviews and strong character references from clients and coworkers.

Despite evidence of successful rehabilitation and a recommendation for a waiver, the applicant's security clearance was denied. The denial was based on his multiple felony convictions and sentences exceeding one year in prison, which disqualified him under 10 U.S.C. 986. The judge concluded that the applicant's past criminal conduct adversely affected his judgment, reliability, and trustworthiness.

Why the Applicant Was Denied

The applicant was convicted of multiple felonies and sentenced to more than one year in prison, disqualifying him under 10 U.S.C. 986.
The judge found that the applicant's criminal conduct adversely affected his judgment, reliability, and trustworthiness.

Conditions Referenced

Disqualifying

J.1.braisedCriminal Conduct Is a Disqualifying Condition
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

Key Rule Quoted

“It is not clearly consistent with the national interest to grant or continue a security clearance for applicant.”

Procedural Posture

SOR issuedApr 19, 2004
Answer filedMay 3, 2004
Hearing heldJul 7, 2004
Decision dateAug 6, 2004

Cite For

Disqualifying Conditions Related to Felony Convictions Under Guideline J
Mitigating Conditions for Rehabilitation and Time Elapsed Since Criminal Conduct
Impact of 10 U.S.C. 986 on Security Clearance Eligibility

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 three allegations under Guideline E, citing issues related to the applicant's criminal history and false statements made on the Security Clearance Application. However, the judge found for the applicant on two allegations, concluding that the applicant did not intentionally falsify his application and had demonstrated successful rehabilitation since his criminal conduct.

¶	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.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
1.b	In response to Question 21, which asked, 'Have you ever been charged with or convicted of any felony offenses?' applicant stated 'no.'	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
1.c	In response to Question 24, which asked, 'Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?' applicant stated 'no.'	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
2.a	Applicant did not intentionally falsify his SCA.	For Applicant	Falsification Security FormNOT DELIBERATESELF-CORRECTED	—	Admitted	—	(a) prompt, good-faith correction before being confronted (f) information was unsubstantiated or from a questionable source	—
2.b	Applicant has demonstrated successful rehabilitation since his criminal conduct.	For Applicant	Unspecified Personal Conduct	—	Unknown	—	(a) prompt, good-faith correction before being confronted (f) information was unsubstantiated or from a questionable source	Credited Rehabilitation Evidence

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

Bond Amendment: the decision notes incarceration over one year or a dishonorable discharge — a statutory bar to SCI / Special Access / Restricted Data eligibility absent a waiver.

The judge found against the applicant on three allegations of criminal conduct, including convictions for burglary, theft, and possession of marijuana with intent to sell. Despite evidence of rehabilitation and the passage of time since the applicant's last criminal conduct, the judge concluded that the applicant's criminal history disqualified him from receiving a security clearance under 10 U.S.C. 986, resulting in a denial of the application.

¶	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. 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.	Against Applicant	Theft or Larceny	Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
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.	Against Applicant	Drug Related Criminal Charge	Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.c	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, 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.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
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	—	Unknown	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	Documented Rehabilitation Evidence
2.b	Letters from two former clients and two coworkers of applicant, including applicant's supervisor, were admitted into evidence. It is clear from these letters that applicant is very talented, a hard worker, and greatly appreciated by his employer. His supervisor is of the opinion that allowing applicant access to classified information poses no risk to this country.	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	(d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented Character Letters

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: August 6, 2004

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-18297

ECISION OF ADMINISTRATIVE JUDGE

JOSEPH TESTAN

Applicant's conviction and sentence of more than one year in prison disqualifies him from receiving a security clearance under 10 U.S.C. 986. Clearance is denied, but waiver recommended.

STATEMENT OF CASE

On April 19, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

Applicant responded to the SOR in writing on May 3, 2004. The case was assigned to the undersigned on June 17, 2004. A Notice of Hearing was issued on June 22, 2004, and the hearing was held on July 7, 2004. The transcript was received on July 29, 2004.

FINDINGS OF FACT

Applicant is a 39 year old employee of a defense contractor.

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. 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.

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.

Letters from two former clients and two coworkers of applicant, including applicant's supervisor, were admitted into evidence (Exhibits A, B, C and D). It is clear from these letters that applicant is very talented, a hard worker, and greatly appreciated by his employer. His supervisor is of the opinion that allowing applicant access to classified information "poses no risk to this country."

CONCLUSION

With respect to Guideline J, the evidence establishes that (1) in 1984, applicant was convicted of one count of Criminal Damage to Property, one count of Theft, and two counts of Burglary, and was sentenced to three to five years in prison, and (2) in 1986, he was convicted of Possession of Marijuana With Intent to Sell and Possession of Drug Paraphernalia, and was sentenced to four to ten years in prison. This conduct reflects adversely on applicant's judgment, reliability and trustworthiness. It also requires application of Disqualifying Conditions b. (a single serious crime or multiple lesser offenses), and c. (conviction in a Federal or State court, including a court-martial of a crime and sentenced to imprisonment for a term exceeding one year).

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. Based on the evidence presented, applicant qualifies for Mitigating Conditions a. (the criminal behavior was not recent) and f. (there is clear evidence of successful rehabilitation).

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. If it were not for 10 U.S.C. 986, I would conclude that it is now clearly consistent with the national interest to grant him access to classified information. In light of this statute, however, I must conclude that it is not clearly consistent with the national interest to grant applicant a security clearance. (2) I recommend further consideration of this case for a waiver of 10 U.S.C. 986.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT

Subparagraph 1a: Against the Applicant

Subparagraph 1b: Against the Applicant

Subparagraph 1c: Against the Applicant

PARAGRAPH 2: FOR THE APPLICANT

Subparagraph 2a: For the Applicant

Subparagraph 2b: For 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.

____________________________

Joseph Testan

Administrative Judge

1. The Burglary and Theft charges were felonies.

2. See, Footnote 1 under Disqualifying Condition cof the Criminal Conduct guideline.

FOOTNOTES

FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Pro Se SYNOPSIS