ISCR Case 05-09052.h1

Case Headnote

ISCR Case No. 05-09052.h1

grantedAug 18, 2006· Hon. Barry M. Sax· hearing

Summary

A 31-year-old engineer was granted a security clearance despite allegations under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The allegations stemmed from a 1997 arrest for burglary, which resulted in a conviction for two counts of petit theft, and a 2003 citation for possessing a glass bottle on a beach. The government alleged the applicant falsified his May 24, 2004, security clearance application (SF 86) by not disclosing these incidents and by denying a felony arrest or alcohol-related conviction.

However, the judge found that the government failed to substantiate these allegations. The 1997 burglary arrest, initially cited as a felony, was determined to be a misdemeanor petit theft, which did not require disclosure as a felony. The applicant was fined $533.60, placed on probation for one year, and served 30 days in jail. Furthermore, the 2003 citation, for which the applicant was fined $40.00, was for possessing a glass bottle on a beach and was not proven to be alcohol-related.

The judge concluded that the applicant did not intentionally falsify information on his security clearance application. The applicant's explanations were deemed credible, and he demonstrated rehabilitation and reliability. Based on the lack of significant security concerns and the government's failure to prove its allegations, the security clearance was GRANTED.

Why the Applicant Prevailed

The government did not prove that the 2003 citation was alcohol-related.
The 1997 burglary conviction was treated as a misdemeanor, not a felony, thus not requiring disclosure on the application.
The applicant's explanations were credible, and he demonstrated rehabilitation and reliability.

Conditions Referenced

Disqualifying

E2.A10.1.2.2raisedA Single Serious Crime or Multiple Lesser OffensesThe 2003 citation was not shown to be a criminal offense, and the 1997 conviction was a misdemeanor.

Mitigating

E2.A10.1.3.1appliedThe Criminal Behavior Was Not RecentThe last incident occurred over three years prior.
E2.A10.1.3.2appliedThe Offense Was an Isolated IncidentThe 2003 violation was not a criminal offense, and the 1997 misdemeanor was treated as isolated.
E2.A10.1.3.6appliedThere Is Clear Evidence of Successful RehabilitationThe applicant has been a valued employee with positive testimonials.

Key Rule Quoted

“A person seeking access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence.”

Procedural Posture

SOR issuedJan 15, 2006
Answer filedFeb 8, 2006
Hearing heldJun 1, 2006
Decision dateAug 18, 2006

Cite For

Credibility of Applicant's Explanations Regarding Past Conduct
Mitigation of Criminal Conduct Due to Lack of Recent Offenses
Successful Rehabilitation Demonstrated Through Employment History and Character References

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 is alleged to have falsified material facts on his May 24, 2004 security clearance application (SF 86), when he answered Question 21 Your Police Record - Felony Convictions, by saying "No," and failing to cite the 1997 felony arrest cited in 1.b., above. However, the Government has not shown that Applicant was arrested for a felony offense, as is alleged in 1.b.	For Applicant	Falsification Security Form	Criminal Conduct	Denied	—	—	—
2.b	Applicant is alleged to have falsified material facts on his May 24, 2004 security clearance application (SF 86), when he answered Question 24 Your Police Record - Alcohol/Drug Convictions, by saying "No," and failing to cite the 2003 citation cited in 1.a., above. However, the Government has not established that this offense was alcohol-related. Therefore, he could not have lied by denying being charged with or convicted of an alcohol or drug related offense, because that did not happen.	For Applicant	Falsification Security Form	Criminal Conduct	Denied	—	—	—
2.c	In an interview with a Special Agent of the Office of Personnel Management, on January 18, 2005, Applicant stated that "he had never been arrested for a felony, had never gone to court, and had never been in jail, whereas Applicant, although not related to a felony, had gone to court, and served time in jail, as indicated in subparagraph 1.b., above." The evidence shows that Applicant was present in court on July 15, 1997, and was sentenced to serve 120 days in jail, with 90 days suspended (AX C).	For Applicant	Lack of Candor in Interview	—	Denied	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant is alleged to have falsified material facts on his May 24, 2004 security clearance application (SF 86), when he answered Question 21 Your Police Record - Felony Convictions, by saying "No," and failing to cite the 1997 felony arrest cited in 1.b., above. However, the Government has not shown that Applicant was arrested for a felony offense, as is alleged in 1.b.

For Applicant

Falsification Security Form

Criminal Conduct

Denied

—

2.b

Applicant is alleged to have falsified material facts on his May 24, 2004 security clearance application (SF 86), when he answered Question 24 Your Police Record - Alcohol/Drug Convictions, by saying "No," and failing to cite the 2003 citation cited in 1.a., above. However, the Government has not established that this offense was alcohol-related. Therefore, he could not have lied by denying being charged with or convicted of an alcohol or drug related offense, because that did not happen.

For Applicant

Falsification Security Form

Criminal Conduct

Denied

—

2.c

In an interview with a Special Agent of the Office of Personnel Management, on January 18, 2005, Applicant stated that "he had never been arrested for a felony, had never gone to court, and had never been in jail, whereas Applicant, although not related to a felony, had gone to court, and served time in jail, as indicated in subparagraph 1.b., above." The evidence shows that Applicant was present in court on July 15, 1997, and was sentenced to serve 120 days in jail, with 90 days suspended (AX C).

For Applicant

Lack of Candor in Interview

—

Denied

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The SOR alleges that in about March 2003, Applicant was cited for possessing an Open Container of Alcohol in State A. At the hearing, based on the testimony of the OPM investigator, the allegation was amended to a 'Violation of a Glass Bottle [on the beach] ordinance. He was fined $40.00. Neither of the Government's Exhibits (1 or 2) contains any mention of this 2003 incident. Applicant admitted the incident, but denies it was alcohol-related. His explanations are accompanied by documentation that the violation pertained to his possession of a glass container on a public beach, with no reference to the contents, if any, of the container (AX F at page 3). The Government has not carried its initial burden of establishing that an alcohol-related violation had taken place. I conclude that the violation contains minimal, if any, security significance.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	—	—	—
1.b	On May 14, 1997, Applicant was arrested in State B on two counts of Burglary. On July 15, 1997, Applicant pleaded guilty to two counts of Petit Theft. He was fined $533.60, placed on probation for one year, and sentenced to serve 120 days in jail, with 90 days suspended. Applicant admits allegation 1.b., which is describes in the SOR as a felony, apparently because the arrest is cited in the FBI Criminal History (GX 2) as 'F Burg.' I understand that term to mean Felony Burglary. However, copies of the original court documents refer to the violation as a misdemeanor (AX A, AX C, and AX D (the booking/arrest form)). There is no reference to 'felony' status on any of the police/court documents. Under these unique circumstances, particularly since Applicant does not appear to have any legal background, his admission of an allegation that includes the term 'felony' is not conclusive or binding. The overall evidence indicates the offense was always treated as a misdemeanor.	For Applicant	Theft or Larceny	Convicted	Admitted	—	—	—
1.c	The falsification-related information cited in subparagraphs 2.a and 2.b., below, does not establish any intent to deceive the Government. For the reasons stated below, this allegation is found in favor of Applicant.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Unknown	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

The SOR alleges that in about March 2003, Applicant was cited for possessing an Open Container of Alcohol in State A. At the hearing, based on the testimony of the OPM investigator, the allegation was amended to a 'Violation of a Glass Bottle [on the beach] ordinance. He was fined $40.00. Neither of the Government's Exhibits (1 or 2) contains any mention of this 2003 incident. Applicant admitted the incident, but denies it was alcohol-related. His explanations are accompanied by documentation that the violation pertained to his possession of a glass container on a public beach, with no reference to the contents, if any, of the container (AX F at page 3). The Government has not carried its initial burden of establishing that an alcohol-related violation had taken place. I conclude that the violation contains minimal, if any, security significance.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Admitted

—

1.b

On May 14, 1997, Applicant was arrested in State B on two counts of Burglary. On July 15, 1997, Applicant pleaded guilty to two counts of Petit Theft. He was fined $533.60, placed on probation for one year, and sentenced to serve 120 days in jail, with 90 days suspended. Applicant admits allegation 1.b., which is describes in the SOR as a felony, apparently because the arrest is cited in the FBI Criminal History (GX 2) as 'F Burg.' I understand that term to mean Felony Burglary. However, copies of the original court documents refer to the violation as a misdemeanor (AX A, AX C, and AX D (the booking/arrest form)). There is no reference to 'felony' status on any of the police/court documents. Under these unique circumstances, particularly since Applicant does not appear to have any legal background, his admission of an allegation that includes the term 'felony' is not conclusive or binding. The overall evidence indicates the offense was always treated as a misdemeanor.

For Applicant

Theft or Larceny

Convicted

Admitted

—

1.c

The falsification-related information cited in subparagraphs 2.a and 2.b., below, does not establish any intent to deceive the Government. For the reasons stated below, this allegation is found in favor of Applicant.

For Applicant

Unspecified Criminal Conduct

Conduct No Charge

Unknown

—

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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