ISCR Case 04-07131.h1

Case Headnote

ISCR Case No. 04-07131.h1

grantedNov 30, 2005· Hon. Wilford H. Ross· hearing

Summary

A 42-year-old married custodian employed by a defense contractor was granted a security clearance despite allegations under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The case involved three arrests and questions regarding the accuracy of his security clearance questionnaire.

The Applicant's criminal history included an arrest in March 1988 for Assault With Firearm on a Person, which was dismissed. In June 1990, he was arrested for driving offenses, pleading guilty to Unlicensed Driver, resulting in jail time and a fine. A bench warrant was later issued due to an unpaid fine. His final arrest in June 2003 was for Possession of a Forged Instrument, specifically counterfeit food stamps. He pleaded Nolo Contendere, received a sentence including jail or work for the State Transportation Department, a fine, and 36 months probation. The Applicant stated he was unaware the food stamps were forged and was manipulated by an acquaintance.

Regarding his security clearance questionnaire completed in August 2003, the Applicant stated he had never been charged with a firearms offense and had no pending charges. These statements were inaccurate, as he had been arrested for a firearms offense in 1988 and had a pending charge from his June 2003 arrest. However, the Administrative Judge found that the Applicant did not intentionally falsify the questionnaire, attributing the inaccuracies to reading and comprehension difficulties. His criminal conduct was mitigated by an otherwise exemplary personal and professional life, substantial evidence of rehabilitation, and positive character references from his employer, leading to the granted clearance.

Why the Applicant Prevailed

The Applicant's criminal incidents were mitigated by his otherwise exemplary personal and professional life.
The Applicant did not intentionally falsify his security clearance questionnaire due to difficulties with reading and comprehension.
There was substantial evidence of rehabilitation and positive character references from his employer.

Conditions Referenced

Disqualifying

E2.A10.1.2raisedA Single Serious Crime or Multiple Lesser Offenses
E2.A5.1.2.2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts

Mitigating

E2.A10.1.3.2appliedThe Crime Was an Isolated Incident
E2.A10.1.3.6appliedThere Is Clear Evidence of Successful Rehabilitation
E2.2.1.1appliedThe Nature, Extent and Seriousness of the Conduct
E2.2.1.3appliedThe Frequency and Recency of the Conduct
E2.2.1.6appliedThe Presence or Absence of Rehabilitation and Other Pertinent Behavior Changes
E2.2.1.7appliedThe Motivation for the Conduct
E2.2.1.8appliedThe Potential for Pressure, Coercion, Exploitation or Duress
E2.2.1.9appliedThe Likelihood of Continuation or Recurrence

Key Rule Quoted

“Each adjudication is to be an overall common sense determination based upon consideration and assessment of all available information, both favorable and unfavorable, with particular emphasis placed on the seriousness, recency, frequency, and motivation for the individual's conduct; the extent to which conduct was negligent, willful, voluntary, or undertaken with the knowledge of the circumstances or consequences involved; and, to the extent that it can be estimated, the probability that conduct will or will not continue in the future.”
— Executive Order 10865

Procedural Posture

SOR issuedApr 15, 2005
Answer filedMay 10, 2005
Hearing heldJul 19, 2005
Decision dateNov 30, 2005

Cite For

Mitigation of Criminal Conduct Under Guideline J Due to Exemplary Personal and Professional Life
Lack of Intent to Falsify Security Clearance Questionnaire Due to Reading Difficulties
Successful Rehabilitation Evidenced by Positive Character References From Employers

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	On August 18, 2003, the Applicant completed an official DoD questionnaire in which he stated that he had never been charged with a firearms offense. This statement was a false answer to a relevant question concerning the Applicant's criminal history.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	(c) offense is minor, long ago, infrequent, or unique circumstances	Claimed Explanation of Omission Credible
2.b	The questionnaire also asked the Applicant whether, at that point in time, he had any charges pending against him. The Applicant answered, "No." This was a false answer since, on June 2, 2003, he had been arrested for Possession of a Forged Instrument.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	(c) offense is minor, long ago, infrequent, or unique circumstances	Claimed Explanation of Omission Credible

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

On August 18, 2003, the Applicant completed an official DoD questionnaire in which he stated that he had never been charged with a firearms offense. This statement was a false answer to a relevant question concerning the Applicant's criminal history.

For Applicant

Falsification Security FormNOT DELIBERATE

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(c) offense is minor, long ago, infrequent, or unique circumstances

Claimed

Explanation of Omission Credible

2.b

The questionnaire also asked the Applicant whether, at that point in time, he had any charges pending against him. The Applicant answered, "No." This was a false answer since, on June 2, 2003, he had been arrested for Possession of a Forged Instrument.

For Applicant

Falsification Security FormNOT DELIBERATE

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(c) offense is minor, long ago, infrequent, or unique circumstances

Claimed

Explanation of Omission Credible

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The Applicant was arrested in March 1988 for Assault With Firearm on a Person. According to the Applicant and his Personal Representative, who is his wife, the Applicant was falsely accused of this offense. The court records were not provided, but the FBI identification record shows that the charges were dismissed.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	(b) pressured/coerced and unlikely to recur absent that pressure	—
1.b	The Applicant was subsequently arrested in June 1990 for various driving offenses. He plead guilty to a charge of Unlicensed Driver and was sentenced to jail and a fine. It appears that the Applicant was confused about whether his time in jail had tolled the fine. Eventually a bench warrant was issued for his arrest for failure to pay the fine.	For Applicant	Traffic Offense Pattern	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	(b) pressured/coerced and unlikely to recur absent that pressure	—
1.c	The Applicant's final arrest occurred in June 2003. This was in connection with his using forged food stamps. According to the Applicant, he did not know that the food stamps were forged. Rather, he was manipulated by an acquaintance into passing the food stamps at a grocery store. In any case, the Applicant plead Nolo Contendere to the charge of Possession of a Forged Item on August 21, 2003. He was sentenced to serve five days in jail, or to do work for the State Transportation Department. In addition, he had to pay a fine and was put on 36 months probation.	For Applicant	Fraud or Deception Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	(b) pressured/coerced and unlikely to recur absent that pressure	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

The Applicant was arrested in March 1988 for Assault With Firearm on a Person. According to the Applicant and his Personal Representative, who is his wife, the Applicant was falsely accused of this offense. The court records were not provided, but the FBI identification record shows that the charges were dismissed.

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Denied

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

(b) pressured/coerced and unlikely to recur absent that pressure

—

1.b

The Applicant was subsequently arrested in June 1990 for various driving offenses. He plead guilty to a charge of Unlicensed Driver and was sentenced to jail and a fine. It appears that the Applicant was confused about whether his time in jail had tolled the fine. Eventually a bench warrant was issued for his arrest for failure to pay the fine.

For Applicant

Traffic Offense Pattern

Convicted

Denied

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

(b) pressured/coerced and unlikely to recur absent that pressure

—

1.c

The Applicant's final arrest occurred in June 2003. This was in connection with his using forged food stamps. According to the Applicant, he did not know that the food stamps were forged. Rather, he was manipulated by an acquaintance into passing the food stamps at a grocery store. In any case, the Applicant plead Nolo Contendere to the charge of Possession of a Forged Item on August 21, 2003. He was sentenced to serve five days in jail, or to do work for the State Transportation Department. In addition, he had to pay a fine and was put on 36 months probation.

For Applicant

Fraud or Deception Criminal

Convicted

Denied

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

(b) pressured/coerced and unlikely to recur absent that pressure

—

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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

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES