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ISCR Case 05-05439.h1 — CASE

ISCR Case 05-05439.h1denied

Case Headnote

ISCR Case No. 05-05439.h1

deniedOct 16, 2006· Hon. Joseph Testan· hearing

Summary

A 39-year-old defense contractor and former U.S. Navy member 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 primarily from intentional falsifications on his Security Clearance Application (SCA) regarding felony charges, alongside a history of criminal conduct and personal conduct issues.

Specifically, the applicant failed to disclose a 2001 arrest and three felony charges related to an alleged sex crime against his stepdaughter, to which he later pleaded guilty to a reduced charge of sexual battery. He also failed to disclose a 1999 arrest for Spousal Abuse, where he pleaded guilty to Battery, was placed on probation, and ordered to attend a domestic violence program. These omissions were identified as intentional false statements on his September 5, 2003 SCA.

The judge determined that the applicant's intentional provision of false, material information on his SCA, coupled with his history of domestic violence and legal issues, undermined his reliability and trustworthiness. The recency and extent of these falsifications prevented the application of any mitigating factors, leading to the denial of his security clearance request.

Why the Applicant Was Denied

The applicant intentionally provided false, material information on his SCA regarding felony charges.
The applicant's history of domestic violence and subsequent legal issues raised significant concerns about his judgment and reliability.
The recency and extent of the applicant's falsifications precluded the application of any mitigating factors.

Conditions Referenced

Disqualifying

E2.A10.1.2.2appliedA Single Serious Crime or Multiple Lesser Offenses
E2.A5.1.2.2appliedThe Deliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire

Key Rule Quoted

“When such an individual intentionally falsifies material facts on a security clearance application, it is extremely difficult to conclude that he or she nevertheless possesses the good judgment, reliability and trustworthiness required of clearance holders.”

Procedural Posture

SOR issuedJan 31, 2006
Answer filedApr 20, 2006
Hearing heldSep 19, 2006
Decision dateOct 16, 2006

Cite For

Intentional Falsification of Material Facts on a Security Clearance Application Under Guideline E
Disqualifying Conditions Related to Criminal Conduct Under Guideline J
The Impact of Past Domestic Violence on Security Clearance Eligibility Under Guideline D

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 judge found that the applicant had been charged with serious offenses related to sexual behavior but ultimately ruled in favor of the applicant under Guideline D. The judge noted that the applicant pleaded guilty to a misdemeanor charge, which may not even involve sexual behavior, and highlighted the lack of credible evidence supporting the original felony charges.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	Applicant was arrested and charged with three felonies involving an alleged sex crime against his stepdaughter.	Against Applicant	Criminal Sexual Conduct	Denied	—	—	—
1.b	Applicant pleaded guilty to a reduced charge of sexual battery.	Against Applicant	Criminal Sexual Conduct	Denied	—	—	—
1.c	specific text not stated in this decision	For Applicant	Unspecified Sexual Behavior	Unknown	—	—	—

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 against the applicant on two allegations of intentional falsification of material facts on a Security Clearance Application. The applicant's conduct raised significant concerns regarding his judgment and trustworthiness, leading to a denial of his security clearance request.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	The SOR alleges that applicant intentionally provided false, material information to the Government in response to two questions on an SCA (Questions 21 and 26) he executed on September 5, 2003.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
1.b	In response to Question 21, he denied that he had ever been charged with a felony. This was not true because, as noted above, he was originally charged with three felonies in connection with the incident involving his stepdaughter in 2001.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.a	Applicant failed to disclose his 1999 arrest for Spousal Abuse in response to Question 26.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
3.a	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—

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 judge ruled against the applicant on two allegations related to criminal conduct, specifically a conviction for Battery and a guilty plea to a reduced charge of Sexual Battery. However, the judge found in favor of the applicant on a third allegation regarding the nature of the charges against him, ultimately denying the security clearance due to concerns about the applicant's intentional falsifications on his security clearance application.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The applicant was arrested by civilian authorities and charged with Inflicting Corporal Injury on Spouse and Battery. He pleaded guilty to Battery, and was placed on probation for three years and ordered to attend a domestic violence program.	Against Applicant	Assault or Battery	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	The applicant was arrested and charged with three felonies involving an alleged sex crime against his stepdaughter. He eventually pleaded guilty or no contest to a reduced misdemeanor charge.	Against Applicant	Sexual Offense Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.c	The applicant was involved in numerous domestic disputes, sometimes involving physical violence, but there is no evidence of further incidents of physical violence involving his wife after March 1999.	For Applicant	Domestic Violence	Conduct No Charge	Denied	—	—	—

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: October 16, 2006

In Re:

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

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

Applicant for Security Clearance

CR Case No. 05-05439

DECISION OF ADMINISTRATIVE JUDGE

JOSEPH TESTAN

SYNOPSIS

The recency and extent of applicant's intentional falsifications of material facts on a Security Clearance Application (SCA) requires a denial of his clearance request. Clearance is denied.

STATEMENT OF CASE

On January 31, 2006, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as administratively reissued on April 20, 1999), issued a Statement of Reasons (SOR) to applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

Applicant responded to the SOR in writing on April 20, 2006. The case was assigned to me on July 19, 2006. A Notice of Hearing was issued on August 22, 2006, and the hearing was held on September 19, 2006. The transcript was received on September 29, 2006.

RULINGS ON PROCEDURE

At the hearing, Department Counsel moved to amend SOR Paragraph 1b. Applicant did not object, and the motion was granted. As amended, SOR Paragraph 1bnow alleges that applicant pleaded guilty to a reduced charge of sexual battery.

FINDINGS OF FACT

Applicant is a 39 year old employee of a defense contractor. He served in the U.S. Navy from 1985 to 1995.

In September 1988, applicant was awarded non-judicial punishment under the UCMJ for Unauthorized Absence and Dereliction of Duty.

In January 1989, applicant was awarded non-judicial punishment under the UCMJ for Unauthorized Absence.

Applicant married his current wife in 1990. Beginning about a year after they were married, and continuing to March 1999, applicant and his wife were involved in numerous domestic disputes, sometimes involving physical violence.

In January 1991, applicant was arrested by civilian authorities and charged with Inflicting Corporal Injury on Spouse and Battery. (1) He pleaded guilty to Battery, and was placed on probation for three years and ordered to attend a domestic violence program. Applicant attended the program as ordered.

In 1994, applicant was awarded non-judicial punishment for violating Articles 92, 107 and 128 of the UCMJ (Domestic Assault and Damage to Government Property).

In March 1999, applicant was arrested and charged with Spousal Abuse. He went to trial on

the charge and was acquitted. Applicant testified that there have been no further incidents of physical violence involving his wife, and there is no evidence to the contrary (TR at 74-75).

In 1996, applicant received a speeding ticket. In 1998, he received a second speeding ticket. Because he did not appear in Court as required for either ticket, at least one warrant for his arrest was issued. When he was arrested in 2001 (discussed below), these tickets caught up with him. As the result of the tickets and his failure to appear in Court, applicant was fined and ordered to serve one day in jail.

In 2001, applicant was arrested and charged with three felonies involving an alleged sex crime against his stepdaughter. (2) He eventually pleaded guilty or no contest to a reduced misdemeanor charge. (3) He was fined $100.00, sentenced to ten days in jail/work release, placed on probation for three years, and was ordered to complete 18 counseling sessions. The stepdaughter had claimed applicant had inappropriately kissed her on three occasions. Applicant denies he did so. He pleaded guilty because he had already spent $9,000.00 on attorney fees and had no more money to go to trial. He just wanted it to "go away" (TR at 76). He subsequently formally adopted this stepdaughter. Other than a speeding ticket, which he has taken care of, applicant has had no adverse contact with law enforcement since this incident.

The SOR alleges that applicant intentionally provided false, material information to the Government in response to two questions on an SCA (Questions 21 and 26) he executed on September 5, 2003 (Exhibit 5). In response to Question 21, he denied that he had ever been charged with a felony. This was not true because, as noted above, he was originally charged with three felonies in connection with the incident involving his stepdaughter in 2001. Applicant denies he intentionally provided the false information. When asked at the hearing why he stated "no" in response to Question 21, applicant testified:

Well, because I didn't think I had ever been charged with a felony. I believe that when I was charged with these original felonies, that they were dismissed, and the new charge of a misdemeanor was being applied. That's why I answered later on "yes" [in response to Question 26] and I gave the indication of the same case. I didn't believe I was being charged with a felony (TR at 60-61).

In fact, in response to Question 26, which asked, in essence, if during the previous seven years he had been arrested for, charged with, or convicted of any offenses not previously disclosed in response to earlier questions, applicant did report the sexual misconduct incident, albeit as Simple Battery. Although applicant should have reported this incident as a felony in response to Question 21, instead of Simple Battery in response to Question 26, had this been applicant's only misrepresentation, there may have been grounds to accept his testimony that he did not intend to conceal the fact he was charged with a felony. However, as alleged in the SOR, the evidence also establishes that applicant failed to disclose his 1999 arrest for Spousal Abuse in response to Question 26. Applicant testified that he didn't disclose this incident because he thought when you are found not guilty, it's "not applicable . . . It's like it didn't - to me I just assumed that it didn't happen" (TR at 63). This testimony was not credible. Adding to the doubts about applicant's credibility is the fact that in an application for Federal employment in 1995 (Exhibit 10), applicant denied that during the previous 10 years he had "been convicted" or had "been on probation." In fact, as noted above, he had been convicted of Battery in 1991 and had been placed on probation. When asked why he did not disclose the conviction or probationary status, applicant stated, "I don't know" (TR at 68-69).

CONCLUSION

With respect to Guideline J, the evidence establishes that applicant was convicted of Battery in 1991 and of a misdemeanor charge of either Sexual Battery or Simple Battery in 2001.The evidence further establishes that applicant intentionally provided false, material information in response to two questions on an SCA he executed in 2003. Although he was never charged with a crime, these falsifications are felonies under 18 U.S.C. 1001. This conduct reflects adversely on applicant's judgment, reliability and trustworthiness, and requires application of Disqualifying Condition E2.A10.1.2.2 (a single serious crime or multiple lesser offenses).

The physical altercations between applicant and his wife apparently ended in the 1990s. This conduct, as well as the alleged incident involving his stepdaughter, which most likely didn't happen as she claimed, would have been mitigated had applicant not engaged in any further criminal conduct. However, as noted above, applicant's intentional falsifications of material facts on the SCA were felonies. This fact precludes application of any mitigating factors, and given the recency and extent of the conduct, precludes a finding under Guideline J that it is clearly consistent with the national interest for applicant to have access to classified information at the present time.

With respect to Guideline E, applicant's falsifications of material facts on the SCA are extremely troubling. The Government relies heavily on the honesty and integrity of individuals seeking access to our nation's secrets. When such an individual intentionally falsifies material facts on a security clearance application, it is extremely difficult to conclude that he or she nevertheless possesses the good judgment, reliability and trustworthiness required of clearance holders. Applicant's intentional falsifications require application of Disqualifying Condition E2.A5.1.2.2 (the deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . .). No Mitigating Conditions apply. Based on the foregoing, Guideline E is found against applicant.

Guideline D is found for applicant. Although he was originally charged with three felonies in connection with the alleged incident involving his then stepdaughter, he eventually pleaded guilty to one misdemeanor (which may not even involve sexual behavior), and received a relatively minor sentence. Had there been any real credible evidence to support the original charges, the plea agreement would have never happened. The fact that he subsequently legally adopted the girl adds further doubt to the legitimacy of the original charges. In any event, this incident does not support a finding of "Sexual Behavior."

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT

PARAGRAPH 2: AGAINST THE APPLICANT

PARAGRAPH 3: FOR THE APPLICANT

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for applicant.

____________________________

Joseph Testan

Administrative Judge

1. The evidence does not support a finding that this charge was a felony as alleged in the SOR. 2. SOR Allegations 1a and 1breference the same incident.

3. It is unclear if the reduced misdemeanor charge was Simple Battery or Sexual Battery. (TR at 41-47; Exhibit 7; Applicant's SOR Response.)

FOOTNOTES

05-05439.h1 FOR GOVERNMENT Jennifer I .Goldstein, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/05-05439.h1.html[7/2/2021 3:47:49 PM] 05-05439.h1