ISCR Case 03-22242.h1

Case Headnote

ISCR Case No. 03-22242.h1

grantedApr 29, 2005· Hon. Richard A. Cefola· hearing

Summary

A 38-year-old defense contractor was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). These concerns stemmed from a history of criminal offenses, including multiple DUIs in 1985 and 2000, a 1989 open container violation, a 1986 felony assault, a 1998 conviction for theft of livestock and possession of a prohibited firearm, and a 2000 harassment charge involving his spouse.

The Statement of Reasons also cited omissions on his November 2002 Security Clearance Application (SCA). While he disclosed his 1986 felony assault and 1998 felony firearms conviction, he initially failed to report the 1998 incident itself, his 1985 DUI, and the 1989 open container violation. He credibly testified to forgetting these older incidents and voluntarily disclosed them to a Defense Security Service agent two weeks later. Additionally, he did not disclose back child support payments, believing he was current.

The judge found no willful falsification on the SCA. The decision to grant the clearance was based on significant mitigating factors, including the passage of nearly five years since his last criminal conduct, his cessation of alcohol consumption since his July 2000 DUI, and his demonstrated rehabilitation, including reconciliation with his spouse.

Why the Applicant Prevailed

The Applicant's last act of criminal conduct occurred nearly five years ago, indicating a significant passage of time since the last offense.
The Applicant has not consumed alcohol since his last DUI in July 2000, demonstrating rehabilitation.
There was no willful falsification in the Applicant's Security Clearance Application, as he disclosed relevant offenses to the best of his ability.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedPersonal Conduct

Mitigating

J6appliedCriminal ConductThe Applicant's last criminal behavior was nearly five years ago and is not recent.
E2appliedPersonal ConductThe Applicant reasonably believed he was current on child support payments and disclosed relevant information to a DSS Agent.

Key Rule Quoted

“[each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2]”

Procedural Posture

SOR issuedNov 2, 2004
Answer filedNov 22, 2004
Hearing heldMar 30, 2005
Decision dateApr 29, 2005

Cite For

Mitigation of Past Criminal Conduct Due to Significant Time Elapsed Since Last Offense
No Willful Falsification in Security Clearance Applications When Disclosures Are Made to the Best of the Applicant's Ability
Successful Rehabilitation Demonstrated Through Cessation of Alcohol Consumption and Personal Reconciliation

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
2.a	In answering question 21, "Felony Offenses," on his November 2002 SCA, the Applicant disclosed his 1986 felony conviction for assault. He did not disclose the incident surrounding his 1998 arrest in answer to this question, but the Applicant did disclose his felony firearms conviction in answer to the very next question on the SCA, number 22.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED	Criminal Conduct	Denied	—	—	—
2.b	In answering question 24, "Alcohol/Drug Offenses," on his November 2002 SCA, the Applicant disclosed his 2000 DUI. He failed to disclose his 1989 open container violation or his 1985 DUI. Due to the passage of time, the Applicant testified credibly that he "totally forgot" about these 13 and 17 year old occurrences. Two weeks later, the Applicant voluntarily disclosed the information regarding these old alcohol related incidents to a Defense Security Service (DSS) Agent.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED	Criminal Conduct	Denied	—	—	—
2.c	In answering question 38, "Financial Delinquencies - 180 Days," on his November 2002 SCA, the Applicant failed to disclose his back child support payments, as he thought he was current in paying his child support.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED	Financial	Denied	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

In answering question 21, "Felony Offenses," on his November 2002 SCA, the Applicant disclosed his 1986 felony conviction for assault. He did not disclose the incident surrounding his 1998 arrest in answer to this question, but the Applicant did disclose his felony firearms conviction in answer to the very next question on the SCA, number 22.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED

Criminal Conduct

Denied

—

2.b

In answering question 24, "Alcohol/Drug Offenses," on his November 2002 SCA, the Applicant disclosed his 2000 DUI. He failed to disclose his 1989 open container violation or his 1985 DUI. Due to the passage of time, the Applicant testified credibly that he "totally forgot" about these 13 and 17 year old occurrences. Two weeks later, the Applicant voluntarily disclosed the information regarding these old alcohol related incidents to a Defense Security Service (DSS) Agent.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED

Criminal Conduct

Denied

—

2.c

In answering question 38, "Financial Delinquencies - 180 Days," on his November 2002 SCA, the Applicant failed to disclose his back child support payments, as he thought he was current in paying his child support.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATESELF-CORRECTED

Financial

Denied

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In March of 1985, the Applicant was arrested for, and subsequently found guilty of, DUI.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(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 (c) no reliable evidence the individual committed the offense	—
1.b	In May of 1986, the Applicant was arrested for, and subsequently found guilty of, Assault, a felony.	For Applicant	Assault or Battery	Convicted	Admitted	(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 (c) no reliable evidence the individual committed the offense	—
1.c	In October of 1989, the Applicant was arrested for, and subsequently found guilty of, having an Intoxicating Liquor Prohibited in Certain Public Places.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(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 (c) no reliable evidence the individual committed the offense	—
1.d	In January of 1998, the Applicant was arrested for, and subsequently found guilty of, Theft of Livestock and Possession of a Prohibited Firearm.	For Applicant	Theft or Larceny	Convicted	Admitted	(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 (c) no reliable evidence the individual committed the offense	—
1.e	In May of 2000, The Applicant was arrested, and subsequent found guilty of Harassment of his current spouse.	For Applicant	Unspecified Criminal Conduct	Convicted	Admitted	(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 (c) no reliable evidence the individual committed the offense	—
1.f	In July of 2000, the Applicant was arrested for, and subsequently found guilty of, DUI.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(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 (c) no reliable evidence the individual committed the offense	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In March of 1985, the Applicant was arrested for, and subsequently found guilty of, DUI.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

(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

(c) no reliable evidence the individual committed the offense

—

1.b

In May of 1986, the Applicant was arrested for, and subsequently found guilty of, Assault, a felony.

For Applicant

Assault or Battery

Convicted

Admitted

(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

(c) no reliable evidence the individual committed the offense

—

1.c

In October of 1989, the Applicant was arrested for, and subsequently found guilty of, having an Intoxicating Liquor Prohibited in Certain Public Places.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

(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

(c) no reliable evidence the individual committed the offense

—

1.d

In January of 1998, the Applicant was arrested for, and subsequently found guilty of, Theft of Livestock and Possession of a Prohibited Firearm.

For Applicant

Theft or Larceny

Convicted

Admitted

(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

(c) no reliable evidence the individual committed the offense

—

1.e

In May of 2000, The Applicant was arrested, and subsequent found guilty of Harassment of his current spouse.

For Applicant

Unspecified Criminal Conduct

Convicted

Admitted

(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

(c) no reliable evidence the individual committed the offense

—

1.f

In July of 2000, the Applicant was arrested for, and subsequently found guilty of, DUI.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

(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

(c) no reliable evidence the individual committed the offense

—

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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

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES