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ISCR Case 05-13528.h1 — CASE

ISCR Case 05-13528.h1denied

Case Headnote

ISCR Case No. 05-13528.h1

deniedSep 25, 2006· Hon. Martin H. Mogul· hearing

Summary

A 58-year-old defense contractor was denied a security clearance under Guideline J (Criminal Conduct) due to a 1972 conviction for unlawful delivery of marijuana. The Statement of Reasons detailed an arrest on May 26, 1972, for which the applicant was found guilty and sentenced to five years imprisonment, serving two years, eight months, and 29 days. While the government also alleged a second arrest on June 2, 1972, for the same offense, the applicant credibly testified to only one arrest on May 26, 1972, involving the distribution of two small bags of marijuana.

The core issue for denial was that the applicant's sentence exceeded one year of confinement, and he served more than one year. This triggered the disqualifying provisions of 10 U.S.C. §986, which prohibits security clearances for individuals with certain criminal convictions.

Although the judge acknowledged and applied mitigating conditions, including the applicant's demonstrated rehabilitation and over 34 years without further illegal activity, these could not overcome the statutory disqualification imposed by 10 U.S.C. §986. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant was convicted of a crime resulting in a sentence exceeding one year and served more than one year of incarceration, triggering disqualifying conditions under 10 U.S.C. §986.
The judge found that while mitigating conditions applied, they could not overcome the disqualifying condition related to the applicant's conviction.

Conditions Referenced

Disqualifying

J.araisedAllegations or Admissions of Criminal Conduct
J.braisedA Single Serious Crime or Multiple Lesser Offenses
J.cappliedConvictions in a Federal or State Court of a Crime and Sentenced to Imprisonment for a Term Exceeding One Year

Mitigating

J.1appliedThe Criminal Behavior Was Not Recent
J.2appliedEvidence of Rehabilitation

Key Rule Quoted

“"the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedMar 28, 2006
Answer filedApr 21, 2006notarized response to SOR
Hearing heldAug 29, 2006formal notice dated August 8, 2006
Decision dateSep 25, 2006

Cite For

Disqualifying Conditions Under Guideline J Due to Criminal Conduct
Impact of 10 U.S.C. §986 on Security Clearance Eligibility
Consideration of Rehabilitation in Security Clearance Decisions

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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

Bond Amendment: the decision notes incarceration over one year or a dishonorable discharge — a statutory bar to SCI / Special Access / Restricted Data eligibility absent a waiver.

The judge ruled against the applicant under Guideline J due to a past conviction for unlawful delivery of marijuana, which resulted in a sentence exceeding one year. Although the applicant demonstrated rehabilitation and had not engaged in criminal conduct for over 34 years, the provisions of Title 10 U.S.C. 986 disqualified him from receiving a security clearance. The judge recommended consideration for a waiver of the disqualification.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	On May 26, 1972, Applicant was arrested for Unlawful Delivery of Marijuana. He was ultimately found guilty and was sentenced to a term of five years imprisonment. He was incarcerated for a period of two years, eight months and 29 days.	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.b	The Government alleges in this allegation that Applicant was also arrested a second time on June 2, 1972, for Unlawful Delivery of Marijuana, and he was fined $4000 and sentenced to serve seven years concurrently with allegation 1.a., above. Applicant testified credibly that he was only arrested on one time, May 26, 1972, for distributing two small 'finger' bags of marijuana to the same individual.	For Applicant	Unspecified Criminal Conduct	—	Denied	—	—	—
1.c	The Government also alleges that Applicant was sentenced to more than one year of confinement, and he actually served more than one year of confinement. Because of this, under the provisions of 10 U.S.C. 986, Applicant is disqualified from receiving a security clearance.	Against Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—

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: September 25, 2006

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 05-13528

DECISION OF ADMINISTRATIVE JUDGE

MARTIN H. MOGUL

FOR GOVERNMENT

Candace Le'i, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

On May 26, 1972, Applicant was arrested for Unlawful Delivery of Marijuana. He was found guilty on two counts and sentenced to imprisonment for a term of five years and seven years, concurrently. He was incarcerated for a period of more than two years. Since 1972, Applicant has not used or distributed Marijuana or any other illegal substance, nor has he been arrested for anything else. Mitigation has been shown. However, the provisions of Title 10 U.S.C. 986 apply. Clearance is denied. I do recommend further consideration of this case for a waiver of 10 U.S.C. 986.

STATEMENT OF CASE

On March 28, 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, 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 granted.

Applicant filed a notarized response, dated April 21, 2006, to the allegations set forth in the SOR, and requested a hearing before a DOHA Administrative Judge. On May 31, 2006, the case was assigned to this to Administrative Judge to conduct a hearing. Pursuant to a formal notice dated August 8, 2006, a hearing was held on August 29, 2006.

At the hearing, Department Counsel offered five documentary exhibits (Government's Exhibits 1- 5) and no witnesses were called. Applicant offered three letters of reference, marked collectively as Applicant's Exhibit A, and offered his own testimony. The transcript (Tr) was received on September 7, 2006.

FINDINGS OF FACT

The Government opposes Applicant's request for a security clearance, based upon the allegations set forth in the SOR. In the SOR, the Government alleges that a security risk may exist under Adjudicative Guideline J (Criminal Conduct) of the Directive. The SOR contains three allegations 1.a., through 1.c. under Guideline J. In his response to the SOR, Applicant admits allegation 1.a. and denies 1.b. and 1.c. The admitted allegation is incorporated as a finding of fact.

After a complete and thorough review of the evidence in the record, including Applicant's Answer to the SOR, the admitted documents, and Applicant's testimony, and upon due consideration of that evidence, I make the additional findings of fact:

Applicant is 58 years old. He is married and he has two adult sons. He is a high school graduate. He is employed by a defense contractor, and he seeks a DoD security clearance in connection with his employment in the defense sector.

Guideline J (Criminal Conduct)

1.a. On May 26, 1972, Applicant was arrested for Unlawful Delivery of Marijuana. He was ultimately found guilty and was sentenced to a term of five years imprisonment. He was incarcerated for a period of two years, eight months and 29 days (Tr at 25).

1.b. The Government alleges in this allegation that Applicant was also arrested a second time on June 2, 1972, for Unlawful Delivery of Marijuana, and he was fined $4000 and sentenced to serve seven years concurrently with allegation 1.a., above. Applicant testified credibly that he was only arrested on one time, May 26, 1972, for distributing two small "finger" bags of marijuana to the same individual. I find Applicant's testimony convincing that he was only arrested for one sale of marijuana that occurred on May 26, 1972.

Applicant served in the United States Army from 1968 through 1972 and received an Honorable Discharge. He did a tour in Vietnam, and while there he used Marijuana. When he returned to the United States, he and some of his friends purchased Marijuana, and they would sell it to each other and sometimes to friends of friends. He did this for a period of six months. Applicant testified that on May 26, 1972, he actually gave, not sold, two small bags to an individual, whom he met through a friend, and whom he later learned was an undercover police officer. For this he received the two sentences, five and seven years concurrently, and he served two years, eight months and 29 days.

1.c. The Government also alleges that Applicant was sentenced to more than one year of confinement, and he actually served more than one year of confinement. Because of this, under the provisions of 10 U.S.C. 986, Applicant is disqualified from receiving a security clearance. The allegation does state that under 10 U.S.C. 986, in a meritorious case, an exception may be made to this provision.

Mitigation

For a period of 34 years, since 1972, Applicant has not used or distributed Marijuana or any other illegal substance. Since he got out of prison, he has maintained a stable life-style with his wife and sons, and he has not been arrested or involved with any other illegal activity. Applicant has not associated with any of the friends with whom he was involved in the Marijuana distribution since his arrest in 1972.

Applicant introduced three positive letters from friends, and co-workers (Exhibit A). The first one was signed by his supervisor and three co-workers, and they state they know Applicant as someone who is trustworthy and with good character and someone they recommend for a clearance. The second letter is from a neighbor of Applicant, who is also a Technical Sergeant in the United States Air Force. He spoke very highly of Applicant and also recommended him for a position of trust. Finally, the third letter is from a long time co-worker and friend, who also gave him a very strong recommendation.

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines that must be carefully considered in evaluating an individual's security eligibility and making the overall common sense determination required. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance, as the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc.

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk.

Each adjudicative decision must also include an assessment of: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, and the extent of knowledgeable participation; (3) how recent and frequent the behavior was; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence (See Directive, Section E2.2.1. of Enclosure 2).

BURDEN OF PROOF

Initially, the Government must prove controverted facts alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance. Assessment of an applicant's fitness for access to classified information requires evaluation of the whole person, and consideration of such factors as the recency and frequency of the disqualifying conduct, the likelihood of recurrence, and evidence of rehabilitation.

A person who seeks access to classified information enters into a fiduciary relationship with

the U.S. Government that is predicated upon trust and confidence. Where facts proven by the Government raise doubts about an applicant's judgment, reliability, or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."

CONCLUSION

Having considered the evidence of record in light of the appropriate legal precepts and factors, I conclude the following with respect to Guideline J:

The Government has established its case under Guideline J. Applicant's conduct that is the basis for allegation of 1.a. of the SOR is criminal and did result in his receiving a term of five and seven years imprisonment, for which he was incarcerated for more than two years. Under the provisions of Title 10 U.S.C. §986 (2005), a person who has been convicted in any United States court, sentenced to imprisonment to a term exceeding one year, and incarcerated as a result of that sentence for not less than one year, may not be granted or have renewed access to classified information.

Under Guideline J, I conclude that Disqualifying Conditions a, Allegations or admissions of criminal conduct, regardless of whether the person was formally charged; b, A single serious crime or multiple lesser offenses, and c, Convictions in a Federal or State court . . . of a crime and sentence to imprisonment for a term exceeding one year, all apply. However, I find that several Mitigating Conditions apply. The criminal behavior was not recent, it occurred 34 years ago; and Applicant has offered strong evidence of his rehabilitation. I find that the Mitigating Conditions do overcome Disqualifying Conditions a and b, but because of 10 U. S. C. 986, they can not over come Disqualifying Condition c. Therefore, I resolve Guideline J against the Applicant.

FORMAL FINDINGS

Formal Findings, as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive, are hereby rendered as follows:

Paragraph 1. Guideline J: AGAINST APPLICANT Subparagraph 1. a.: For Applicant

Subparagraph 1. b.: For Applicant

Subparagraph 1. c.: Against 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. I do recommend further consideration of this case for a waiver of 10 U.S.C.986.

Martin H. Mogul

Administrative Judge

FOOTNOTES

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