ISCR Case 04-10603.h1

Case Headnote

ISCR Case No. 04-10603.h1

grantedMar 29, 2006· Hon. Shari Dam· hearing

Summary

A 36-year-old network designer for a federal contractor was granted a security clearance despite concerns under Guidelines E (Personal Conduct) and J (Criminal Conduct). The Statement of Reasons detailed several issues, including a misdemeanor conviction in Germany and multiple undisclosed charges. Specifically, the applicant was arrested in Germany in January 1994 for aggravated assault, leading to a March 2003 misdemeanor conviction and a 1,300 euro fine.

Further charges in Germany included unlawful use and possession of government property (license plates), possession of ammunition without proper paperwork, and a German weapons law violation, all from May 2003. Another incident in May 2003 with his girlfriend resulted in pending charges for assault, duress, and communicating a threat as of January 2005. Additionally, the applicant faced charges for disregarding a traffic control device, indecent language, and failure to maintain auto insurance, which were not prosecuted. The applicant also failed to disclose the misdemeanor conviction and three charges on his 2003 security clearance application and was terminated from a previous job for abandoning his position.

The judge found that the applicant successfully mitigated these concerns. The failure to disclose was attributed to a misunderstanding of requirements, not intentional deceit. The applicant demonstrated rehabilitation with no further incidents since 2003 and provided credible testimony about positive life changes, including marriage and fatherhood. Based on these mitigating factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated successful rehabilitation by not having any further incidents since 2003.
The applicant's failure to disclose prior charges was found to be due to a misunderstanding of the disclosure requirements, not intentional deceit.
The applicant provided credible testimony and evidence of positive changes in his life, including marriage and fatherhood.

Conditions Referenced

Disqualifying

E2.A10.1.2.1raisedAllegations or Admission of Criminal Conduct, Regardless of Whether the Person Was Formally Charged.

Mitigating

E2.A10.1.3appliedThe Criminal Behavior Was Not Recent.
E2.A10.1.3.6appliedThere Is Clear Evidence of Successful Rehabilitation.
E2.A10.1.3.5rejectedThe Individual Has Acknowledged the Criminal Behavior and Has Taken Positive Steps to Address It.

Key Rule Quoted

“The adjudicative process requires thorough consideration and review of all available, reliable information about the applicant, past and present, favorable and unfavorable, to arrive at a balanced decision.”
— Directive, Enclosure 2, ¶ E2.2.

Procedural Posture

SOR issuedJul 13, 2005
Answer filedAug 1, 2005
Hearing heldDec 1, 2005
Decision dateMar 29, 2006

Cite For

Mitigation of Criminal Conduct Under Guideline J Due to Evidence of Rehabilitation
Understanding of Disclosure Requirements in Security Clearance Applications
Consideration of Personal Circumstances in Adjudicating Security Clearance Cases

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	When he completed the security clearance application in 2003, he did not disclose the misdemeanor conviction or the three charges.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Admitted	—	—	—
2.b	He did not disclose the misdemeanor conviction or the three charges.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Admitted	—	—	—
2.c	He did not disclose the misdemeanor conviction or the three charges.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Admitted	—	—	—
2.d	Applicant was terminated from employment for abandoning his position within three months of his starting date.	For Applicant	Rules Violation at Workplace	—	Admitted	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

When he completed the security clearance application in 2003, he did not disclose the misdemeanor conviction or the three charges.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Admitted

—

2.b

He did not disclose the misdemeanor conviction or the three charges.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Admitted

—

2.c

He did not disclose the misdemeanor conviction or the three charges.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Criminal Conduct

Admitted

—

2.d

Applicant was terminated from employment for abandoning his position within three months of his starting date.

For Applicant

Rules Violation at Workplace

—

Admitted

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	While in Germany, Applicant was arrested on January 26, 1994 and charged with Aggravated Assault Involving More Than One Individual Striking the Victim.	For Applicant	Assault or Battery	Conduct No Charge	Admitted	—	—	—
1.b	In March 2003, a German judge convicted him of a misdemeanor and fined him 1,300 euros.	For Applicant	Assault or Battery	Convicted	Admitted	—	—	—
1.c	As of January 13, 2005, the criminal prosecution of the Assault, Duress and Communicating A Threat case, arising from the May incident with his girlfriend, was still pending in Germany.	For Applicant	Assault or Battery	Charged Not Convicted	Admitted	—	—	—
1.d	On or about May 20, 2003, Applicant was charged with Unlawful Use and Possession of Government Property (License Plates) and Possession of Ammunition Without Proper Paperwork by the United States Military Police in Germany, and a violation of German Weapons law.	For Applicant	Weapons Offense	Dismissed or Nolle Prossed	Admitted	—	—	—
1.e	Applicant was charged with Disregarding Traffic Control Device, Indecent Language, and Failure to Maintain Auto Insurance in Germany. The case was not prosecuted.	For Applicant	Traffic Offense Pattern	Dismissed or Nolle Prossed	Admitted	—	—	—
1.f–1.h	3 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant		—		—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

While in Germany, Applicant was arrested on January 26, 1994 and charged with Aggravated Assault Involving More Than One Individual Striking the Victim.

For Applicant

Assault or Battery

Conduct No Charge

Admitted

—

1.b

In March 2003, a German judge convicted him of a misdemeanor and fined him 1,300 euros.

For Applicant

Assault or Battery

Convicted

Admitted

—

1.c

As of January 13, 2005, the criminal prosecution of the Assault, Duress and Communicating A Threat case, arising from the May incident with his girlfriend, was still pending in Germany.

For Applicant

Assault or Battery

Charged Not Convicted

Admitted

—

1.d

On or about May 20, 2003, Applicant was charged with Unlawful Use and Possession of Government Property (License Plates) and Possession of Ammunition Without Proper Paperwork by the United States Military Police in Germany, and a violation of German Weapons law.

For Applicant

Weapons Offense

Dismissed or Nolle Prossed

Admitted

—

1.e

Applicant was charged with Disregarding Traffic Control Device, Indecent Language, and Failure to Maintain Auto Insurance in Germany. The case was not prosecuted.

For Applicant

Traffic Offense Pattern

Dismissed or Nolle Prossed

Admitted

—

1.f–1.h

3 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)

For Applicant

—

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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

PROCEDURAL MATTERS

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES