ISCR Case 03-26115.h1

Case Headnote

ISCR Case No. 03-26115.h1

deniedJul 12, 2006· Hon. Philip S. Howe· hearing

Summary

A 58-year-old defense contractor was denied a security clearance due to concerns under Guidelines E (Personal Conduct), F (Financial Considerations), G (Alcohol Consumption), and J (Criminal Conduct). The applicant had two prior DUI convictions, one in 1999 and another in 2002. The 2002 arrest, which occurred after he drove home from a birthday celebration with a .19% BAC, resulted in a guilty plea and a sentence including a fine, probation, and an alcohol program. The 1999 arrest, where his BAC was .08%, led to a guilty plea, jail time, fines, and a drinking driver program.

The applicant failed to disclose his October 2002 DUI arrest on his security clearance application. Additionally, he did not inform an alcohol assessment program in 2002 of his 1999 DUI conviction, and a 2006 assessment also omitted this information.

Financially, the applicant failed to file federal and state tax returns for multiple years between 1989 and 2002. He owed approximately $74,000 to federal tax authorities, having paid $8,957 as of July 2005, and about $23,100 to state authorities. Multiple tax liens were filed by both federal and state authorities between 1995 and 2004, none of which were paid in full. The judge determined that the applicant did not mitigate the security concerns related to his criminal conduct, personal conduct, alcohol consumption, and financial issues, leading to the denial.

Why the Applicant Was Denied

The applicant had two DUI convictions within three years, indicating a pattern of alcohol-related issues.
He failed to file federal and state tax returns for several years, resulting in multiple tax liens.
The applicant did not disclose his most recent DUI arrest on his security clearance application, demonstrating a lack of candor.

Conditions Referenced

Disqualifying

E2.A10.1.2.1raisedAllegations or Admissions of Criminal Conduct, Regardless of Whether the Person Was Formally Charged.
E2.A10.1.2.2raisedA Single Serious Crime or Multiple Lesser Offenses.
E2.A5.1.2.2raisedThe Deliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire.
E2.A7.1.2.1raisedAlcohol-related Incidents Away From Work, Such as DUI Incidents.
E2.A7.1.2.5raisedHabitual Consumption of Alcohol to the Point of Impaired Judgment.
E2.A6.1.2.1raisedA History of Not Meeting Financial Obligations.
E2.A6.1.2.2raisedDeceptive or Illegal Financial Practices Such as Income Tax Evasion.
E2.A6.1.2.3raisedInability or Unwillingness to Satisfy Debts.

Key Rule Quoted

“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.

Procedural Posture

SOR issuedJan 31, 2005
Answer filedMar 18, 2005
Hearing heldFeb 22, 2006continuance denied
Decision dateJul 12, 2006

Cite For

Denial Based on Multiple DUI Offenses and Lack of Candor in Security Clearance Application
Failure to Mitigate Financial Obligations and Tax Issues
Pattern of Alcohol-related Incidents Affecting 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.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant failed to disclose his October 2002 DUI arrest on his security clearance application (SCA) in response to Question 24 (Police Record - Have you ever been charged with or convicted of any offense related to alcohol or drugs?)	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(b) deliberately providing false information to an investigator or official	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant failed to disclose his October 2002 DUI arrest on his security clearance application (SCA) in response to Question 24 (Police Record - Have you ever been charged with or convicted of any offense related to alcohol or drugs?)

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Criminal Conduct

Denied

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

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
4.a	failed to file federal and state tax returns and pay taxes for several tax years between 1989 and 2002	Against Applicant	Tax Filing Failure	Admitted	—	—	—
4.b	owed about $74,000 originally to the federal tax authorities, the Internal Revenue Service (IRS), and has paid $8,957 as of July 2005 $74,000	Against Applicant	Tax Unpaid	Admitted	—	—	—
4.c	owed about $23,100 to the state tax authorities, and claims to owe less than $5,000 presently, but lacks current documentation to support his assertion $23,100	Against Applicant	Tax Unpaid	Admitted	—	—	—
4.d	In 1995 the IRS filed a tax lien against Applicant for $41,036. Another lien was filed in 1997 for $736, and a third in 2002 for $19,195 $41,036	Against Applicant	Tax Unpaid	Admitted	—	—	—
4.e	The state filed tax liens in 2001 for $5,985, in 2003 for $2,156, and in 2004 for $6,453 $9,856	Against Applicant	Tax Unpaid	Admitted	—	—	—
4.f	None of the liens were paid directly in full, remain in effect, and when Applicant pays the tax debts according to the installment payment plans they will be released	Against Applicant	Unspecified Financial	Admitted	—	—	—

Allegation

Finding

Type

Response

Disqualifying (¶19)

Mitigating applied (¶20)

Mitigation

4.a

failed to file federal and state tax returns and pay taxes for several tax years between 1989 and 2002

Against Applicant

Tax Filing Failure

Admitted

—

4.b

owed about $74,000 originally to the federal tax authorities, the Internal Revenue Service (IRS), and has paid $8,957 as of July 2005

$74,000

Against Applicant

Tax Unpaid

Admitted

—

4.c

owed about $23,100 to the state tax authorities, and claims to owe less than $5,000 presently, but lacks current documentation to support his assertion

$23,100

Against Applicant

Tax Unpaid

Admitted

—

4.d

In 1995 the IRS filed a tax lien against Applicant for $41,036. Another lien was filed in 1997 for $736, and a third in 2002 for $19,195

$41,036

Against Applicant

Tax Unpaid

Admitted

—

4.e

The state filed tax liens in 2001 for $5,985, in 2003 for $2,156, and in 2004 for $6,453

$9,856

Against Applicant

Tax Unpaid

Admitted

—

4.f

None of the liens were paid directly in full, remain in effect, and when Applicant pays the tax debts according to the installment payment plans they will be released

Against Applicant

Unspecified Financial

Admitted

—

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
3.a	The applicant has two driving under the influence of alcohol (DUI) convictions in two states.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
3.b	The applicant consumed alcohol to excess before his 1999 and 2002 DUI arrests.	Against Applicant	Binge or Intoxication Pattern	Denied	—	—	—
3.c	The applicant failed to disclose his 1999 DUI arrest to the alcohol assessment program in 2002.	Against Applicant	Continued Use After Treatment	Denied	—	—	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

3.a

The applicant has two driving under the influence of alcohol (DUI) convictions in two states.

Against Applicant

DUI or DWI Alcohol

Admitted

—

3.b

The applicant consumed alcohol to excess before his 1999 and 2002 DUI arrests.

Against Applicant

Binge or Intoxication Pattern

Denied

—

3.c

The applicant failed to disclose his 1999 DUI arrest to the alcohol assessment program in 2002.

Against Applicant

Continued Use After Treatment

Denied

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	specific text not stated in this decision	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—
1.b	Applicant was arrested for DUI again on October 7, 2002, when he was celebrating his birthday with friends. His actual birthday was September 22. His friends left him at the bar, and he did not have taxi money because they said they would pay for everything, so he drove himself home. The arresting officer noticed Applicant was driving at 60 miles per hour in a 45 mile per hour zone, and was weaving across the center road marking. He told the arresting officer he had nothing to drink, but now estimates he had two beers and two shots. He consented at the time to the breath test, but in four tries could not blow into the machine according to the instructions the officer gave him. Finally, the test showed a BAC of .19%. Applicant pled guilty to driving with a BAC of more than .10% with the other charge of driving while intoxicated dismissed, sentenced to one year in jail which was stayed for a year, fined $300, one year unsupervised probation, take an alcohol assessment, and complete a two day alcohol program. He completed these requirements. (Tr. 100-106; Exhibits 2, 5)	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.c	In 1999 the local police arrested Applicant for driving under the influence of alcohol (DUI). The blood test showed .08% blood alcohol content (BAC). Applicant refused the breathalyser test. He told the arresting officer he had not been drinking, then admitted he had one beer. Applicant drove in between the arresting officer and Applicant's friend whom the officer suspected was DUI, so Applicant was also apprehended at the same time. He pled guilty to one of two charges arising out of the incident, and the other one was dismissed. His court sentence was five days in jail, to complete a drinking driver program and any recommended alcohol treatment program, pay $1,852 in fines, fees, and costs, have his driving privileges restricted for 90 days, and to serve 36 months probation. (Tr. 57, 74, 75, 98-100; Exhibits 2-4)	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.d	Applicant did not inform the alcohol assessment program in 2002 of his 1999 DUI arrest and conviction. The assessment was based on only one offense. Applicant had an alcohol assessment done in 2006, and it does not record the 1999 DUI conviction on it. That assessment finds Applicant has no current problem with chemical dependency. Applicant claims he informed the chemical health evaluator, but she did not want to put the 1999 DUI conviction information on the report because the 2002 evaluation did not have it and she did not want to get Applicant into any trouble. Applicant also claimed his defense attorney advised him not to disclose his prior criminal history unless asked directly. The 2006 evaluation was done for the purposes of the security clearance process. (Tr. 106-108, 154; Exhibits A, J, K)	Against Applicant	Probation or Court Order Violation	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

specific text not stated in this decision

For Applicant

Unspecified Criminal Conduct

—

Unknown

—

1.b

Applicant was arrested for DUI again on October 7, 2002, when he was celebrating his birthday with friends. His actual birthday was September 22. His friends left him at the bar, and he did not have taxi money because they said they would pay for everything, so he drove himself home. The arresting officer noticed Applicant was driving at 60 miles per hour in a 45 mile per hour zone, and was weaving across the center road marking. He told the arresting officer he had nothing to drink, but now estimates he had two beers and two shots. He consented at the time to the breath test, but in four tries could not blow into the machine according to the instructions the officer gave him. Finally, the test showed a BAC of .19%. Applicant pled guilty to driving with a BAC of more than .10% with the other charge of driving while intoxicated dismissed, sentenced to one year in jail which was stayed for a year, fined $300, one year unsupervised probation, take an alcohol assessment, and complete a two day alcohol program. He completed these requirements. (Tr. 100-106; Exhibits 2, 5)

Against Applicant

DUI or DWI Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

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

—

1.c

In 1999 the local police arrested Applicant for driving under the influence of alcohol (DUI). The blood test showed .08% blood alcohol content (BAC). Applicant refused the breathalyser test. He told the arresting officer he had not been drinking, then admitted he had one beer. Applicant drove in between the arresting officer and Applicant's friend whom the officer suspected was DUI, so Applicant was also apprehended at the same time. He pled guilty to one of two charges arising out of the incident, and the other one was dismissed. His court sentence was five days in jail, to complete a drinking driver program and any recommended alcohol treatment program, pay $1,852 in fines, fees, and costs, have his driving privileges restricted for 90 days, and to serve 36 months probation. (Tr. 57, 74, 75, 98-100; Exhibits 2-4)

Against Applicant

DUI or DWI Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

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

—

1.d

Applicant did not inform the alcohol assessment program in 2002 of his 1999 DUI arrest and conviction. The assessment was based on only one offense. Applicant had an alcohol assessment done in 2006, and it does not record the 1999 DUI conviction on it. That assessment finds Applicant has no current problem with chemical dependency. Applicant claims he informed the chemical health evaluator, but she did not want to put the 1999 DUI conviction information on the report because the 2002 evaluation did not have it and she did not want to get Applicant into any trouble. Applicant also claimed his defense attorney advised him not to disclose his prior criminal history unless asked directly. The 2006 evaluation was done for the purposes of the security clearance process. (Tr. 106-108, 154; Exhibits A, J, K)

Against Applicant

Probation or Court Order Violation

Conduct No Charge

Denied

(a) pattern of minor offenses casting doubt on judgment/reliability

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

—

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Case Profile

Summary

Why the Applicant Was Denied

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

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES

APPEARANCES