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ISCR Case 04-08352.h1 — CASE

ISCR Case 04-08352.h1denied

Case Headnote

ISCR Case No. 04-08352.h1

deniedDec 22, 2005· Hon. James A. Young· hearing

Summary

A 61-year-old laborer-material handler was denied a security clearance due to concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The denial stemmed from a history of criminal conduct, including multiple DUI convictions and a prostitution conviction, as well as a failure to disclose the prostitution conviction to his spouse.

The applicant's criminal record included a prostitution conviction in October 2003, aggravated DWI in February 2001, and DUI convictions in December 1987, 1984, 1974, and August 1972. He was also arrested for DUI in 1975 and January 1966, and convicted of disturbing the peace by exposing himself in August 1969. Additionally, the applicant falsified material facts on his Security Clearance Application by not disclosing all alcohol or drug-related arrests.

Despite ceasing alcohol consumption, the applicant failed to mitigate security concerns related to his criminal conduct and sexual behavior. The refusal to inform his wife about the prostitution conviction was specifically cited as increasing his vulnerability to exploitation, leading to the denial of his security clearance.

Why the Applicant Was Denied

Applicant has a lengthy history of criminal conduct, including multiple DUI convictions and a prostitution conviction.
Applicant failed to mitigate security concerns related to criminal conduct and sexual behavior.
The applicant's refusal to disclose his prostitution conviction to his wife increases vulnerability to exploitation.

Conditions Referenced

Disqualifying

E2.A10.1.2.1raisedCriminal Conduct
E2.A10.1.2.2raisedCriminal Conduct
E2.A4.1.2.1raisedSexual Behavior
E2.A4.1.2.4raisedSexual Behavior
E2.A4.1.2.3raisedSexual Behavior

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 28, 2005
Answer filedFeb 23, 2005
Hearing heldSep 13, 2005
Decision dateDec 22, 2005

Cite For

Denial of Security Clearance Due to Extensive Criminal History Under Guideline J
Impact of Undisclosed Criminal Conduct on Security Clearance Eligibility Under Guideline D
Failure to Mitigate Security Concerns Related to Personal Conduct 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.

Standardized Decision Profile

SEAD-4 Guideline D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant was found to have engaged in criminal sexual behavior by being convicted of prostitution in 2003 and failed to disclose this conviction to his wife. The judge ruled against the applicant on both allegations under Guideline D, citing a lack of discretion and judgment, as well as vulnerability to exploitation due to the undisclosed conviction.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
2.a	Applicant was convicted of prostitution in 2003	Against Applicant	Prostitution or Solicitation	Admitted	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted (d) sexual behavior of a public nature or that reflects lack of discretion or judgment	—	—
2.b	His wife does not know about it	Against Applicant	Unspecified Sexual Behavior	Denied with Explanation	(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress	—	—

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found for the applicant on the personal conduct allegation, concluding that the government did not establish any potentially disqualifying conditions under Guideline E. The applicant was deemed truthful in his disclosures regarding his alcohol-related arrests, and the judge determined there was no deliberate falsification of information.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	Applicant falsified material facts on his SCA by failing to disclose all of his alcohol or drug related arrests	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	—	Denied	—	—	—

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

The applicant had a history of multiple DUI convictions and was convicted of prostitution in 2003. The judge found against the applicant on all allegations under Guideline J, concluding that the applicant failed to mitigate the criminal conduct concerns. Consequently, the applicant's request for a security clearance was denied.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Convicted of prostitution in October 2003	Against Applicant	Fraud or Deception Criminal	Convicted	Admitted	—	—	—
1.b	Convicted of aggravated DWI in February 2001	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	—	—	—
1.c	Convicted in December 1987 of DUI	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	—	—	—
1.d	Convicted in 1984 of DUI	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	—	—	—
1.e	Arrested in 1975 of DUI	Against Applicant	DUI or DWI Criminal	Arrested Not Charged	Admitted	—	—	—
1.f	Convicted on DUI in 1974	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	—	—	—
1.g	Convicted of DUI in August 1972	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	—	—	—
1.h	Convicted in August 1969 of disturbing the peace by exposing himself	Against Applicant	Assault or Battery	Convicted	Admitted	—	—	—
1.i	Arrested in January 1966 for DUI	Against Applicant	DUI or DWI Criminal	Arrested Not Charged	Admitted	—	—	—

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: December 22, 2005

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-08352

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

SYNOPSIS

Applicant had numerous drunk driving convictions between 1996 and 2000. He no longer drinks, but he was convicted of prostitution in 2003. He has not told his wife of the prostitution conviction. Applicant failed to mitigate criminal conduct and sexual behavior security concerns. Clearance is denied.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 28 January 2005, DOHA issued a Statement of Reasons (SOR) detailing the basis for its decision (1)-security concerns raised under Guideline J (Criminal Conduct), Guideline D (Sexual Behavior), and Guideline E (Personal Conduct) of the Directive. Applicant answered the SOR in writing on 23 February 2005 and elected to have a hearing before an administrative judge. The case was assigned to me on 27 June 2005. On 13 September 2005, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the hearing transcript (Tr.) on 27 September 2005.

FINDINGS OF FACT

Applicant is a 61-year-old laborer-material handler for a defense contractor. He served in the U.S. Air Force between 1963 and 1967, when he was honorably discharged. During his military service, he held a security clearance. Ex. 1 at 9. He retired from federal civil service after working for the Department of the Army for 25 years.

Applicant was arrested in January 1966 for driving under the influence of liquor (DUI). In 1969, he was arrested for disturbing the peace by exposing himself. Applicant had too much alcohol to drink and urinated in public view. He was convicted of this offense and fined. In 1972, Applicant was convicted of DUI. He was sentenced to probation for one year and fined. He was convicted of DUI in 1974, and was again sentenced to probation for one year and fined. He was arrested in June 1975 of DUI. He was arrested in June 1984 and April 1987 for DUI. He was convicted of both offenses. In April 2000, Applicant was arrested for aggravated DWI. Applicant failed some field sobriety tests, refused to take others, and declined to take a breath test. In February 2001, Applicant pled guilty to, and was convicted of, aggravated driving while under the influence of alcohol (refused to submit to chemical testing). The court found it was Applicant's third conviction for DUI. He was sentenced to 364 days in jail with 274 days suspended, fined, and placed on unsupervised probation. Applicant has not consumed alcoholic beverages since he was incarcerated.

Shortly after Applicant was hired by the defense contractor, he was required to complete an Electronic Personnel Security Questionnaire SF 86 Worksheet. Ex. A. In Module 24, Applicant was asked if he had ever been charged with or convicted of any offenses related to alcohol or drugs. Applicant stated "yes," and listed a driving while intoxicated offense that occurred in the early 1980s. Next to the offense (DWI) Applicant put the number "8." In the remarks section, odule 43, Applicant stated that he had been arrested approximately eight times for DWI, but did not remember all of the dates or places. Ex. A at 28.

On 20 September 2002, Applicant was provided with a printout of an electronic security clearance application that was supposed to contain the materials he submitted in his SF 86 worksheet. On the final page, Applicant certified that his answers were "true, complete, and correct" to the best of his knowledge and belief and acknowledged that any willful false statement could be punished by a fine and/or imprisonment under 18 U.S.C. § 1001. Ex. 1 at 14. Question 24 asked if Applicant had ever been charged with or convicted of any offenses related to alcohol or drugs. The answer on the SCA is "yes," and lists only a 1980 conviction for DWI. Ex. 1 at 7.

In May 2003, Applicant was arrested in an undercover prostitution sting. He "offered and/or agreed to pay a fee to engage in sexual conduct with the officer." Ex. 2 at 5. Applicant pled guilty and was convicted of prostitution. Tr. 27. He was placed on probation for one year, fined more than $400, and ordered to perform 30 hours of community service. He has not told his wife about this offense. Answer; Tr. 27.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. 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.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

CONCLUSION

Guideline J-Criminal Conduct

In the SOR, DOHA alleged Applicant was convicted of prostitution in October 2003 (¶ 1.a); convicted of aggravated DWI in February 2001 (¶ 1.b); convicted in December 1987 of DUI (¶ 1.c); convicted in 1984 of DUI (¶ 1.d); arrested in 1975 of DUI (¶ 1.e); convicted on DUI in 1974 (¶ 1.f); convicted of DUI in August 1972 (¶ 1.g); convicted in August 1969 of disturbing the peace by exposing himself (¶ 1.h); and arrested in January 1966 for DUI (¶ 1.i). Applicant admitted each of the allegations. A history or pattern of criminal activity creates doubt about an applicant's judgment, reliability, and trustworthiness. Directive ¶ E2.A10.1.1. The Government's evidence established potentially disqualifying conditions under Guideline J. Applicant engaged in a series of criminal offenses. DC E2.A10.1.2.1, E2.A10.1.2.2. From 1966 until 2000, Applicant drove while under the influence of alcohol on many occasions. In 2003, Applicant was convicted of prostitution. Most of Applicant's offenses were alcohol related. Applicant has not established any mitigating conditions. He asserts that he no longer consumes alcoholic beverages and he has not done so since his last DUI in 2000. Even so, his new-found sobriety did not end his involvement in criminal acts. After considering all of the evidence, I find against Applicant.

Guideline D-Sexual Behavior

In the SOR, DOHA alleged Applicant was convicted of prostitution in 2003 (¶ 2.a) and his wife does not know about it (¶ 2.b). Applicant denies both allegations, although he admits the conviction. Sexual behavior is a security concern if it involves a criminal offense, indicates a personality or emotional disorder, may subject the individual to coercion, exploitation, or duress, or reflects lack of judgment or discretion. Directive ¶ E2.A4.1.1.

The Government's evidence establishes potentially disqualifying conditions under Guideline D. Applicant engaged in sexual conduct of a criminal nature (DC E2.A4.1.2.1) and of a public nature that demonstrates a lack of discretion and judgment (DC E2.A4.1.2.4). Because Applicant has refused to tell his wife about his prostitution conviction, he remains vulnerable to exploitation. DC E2.A4.1.2.3. An applicant may mitigate sexual behavior security concerns when there is no other evidence of questionable judgment, irresponsibility, or emotional instability. MC E2.A4.1.3.3. This mitigating condition does not apply as Applicant has a lengthy history of questionable judgment and irresponsibility-his numerous DUIs. None of the other mitigating conditions apply. I find against Applicant.

Guideline E-Personal Conduct

In the SOR, DOHA alleged Applicant falsified material facts on his SCA by failing to disclose all of his alcohol or drug related arrests (¶ 3.a). Applicant denies the allegation. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate the applicant may not properly safeguard classified information. Directive ¶ E2.A5.1.1.

After carefully reviewing all of the evidence, I find the Government's evidence does not establish any potentially disqualifying conditions under Guideline E. It is a disqualifying condition to deliberately omit, conceal, or falsify relevant and material facts on any SCA. DC E2.A5.1.2.2. The evidence established that Applicant was truthful and forthcoming on his EPSQ Worksheet in disclosing his DUIs. His employer's security personnel who were responsible for putting the information into electronic form apparently failed to correctly copy all of the entries from the worksheet. Although Applicant should have reviewed the electronic form more carefully, I find he did not deliberately falsify or attempt to mislead the Government in the investigation of his security clearance. I find for Applicant on ¶ 3.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline J: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

Subparagraph 1.c: Against Applicant

Subparagraph 1.d: Against Applicant

Subparagraph 1.e: Against Applicant

Subparagraph 1.f: Against Applicant Subparagraph 1.g: Against Applicant

Subparagraph 1.h: Against Applicant

Subparagraph 1.i: Against Applicant

Paragraph 2. Guideline D: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Subparagraph 2.b: Against Applicant

Paragraph 3. Guideline E: FOR APPLICANT

Subparagraph 3.a: For Applicant

DECISION

In light of all of the circumstances in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

JAMES A. YOUNG

Administrative Judge

1. As required by Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (Directive).

FOOTNOTES

APPEARANCES

FOR GOVERNMENT Robert E. Coacher, Esq., Department Counsel FOR APPLICANT James F. Maus, Esq. file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-08352.h1.html[7/2/2021 3:34:08 PM] 04-08352.h1