ISCR Case 06-00266.h1

Case Headnote

ISCR Case No. 06-00266.h1

grantedNov 17, 2006· Hon. Philip S. Howe· hearing

Summary

A 60-year-old customer service representative for a government medical insurance program was evaluated for a security clearance, facing concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The issues stemmed from a 2002 arrest for disorderly conduct and her subsequent failure to disclose this arrest on her 2003 and 2004 security questionnaires. Additionally, a 1995 arrest for battery and disorderly conduct, which was dismissed, was noted.

The applicant admitted to not listing the 2002 arrest due to a desire to protect her privacy regarding alcohol and marital problems, fearing workplace discussion. While the government alleged a knowing and willful withholding of information, the judge found that her motivation was primarily to avoid personal embarrassment rather than to deceive.

Ultimately, the applicant successfully mitigated the concerns. She demonstrated rehabilitation through four years of sobriety and participation in Alcoholics Anonymous. The criminal conduct was not recent, with the last incident in 2002, and there was a question of culpability regarding the 2002 incident due to sleepwalking. Based on these factors, the applicant was granted eligibility for sensitive duties.

Why the Applicant Prevailed

The applicant demonstrated successful rehabilitation by maintaining sobriety for four years and attending Alcoholics Anonymous.
The criminal conduct was not recent, with the last incident occurring in 2002, and there was a question of culpability due to sleepwalking.
The applicant's failure to disclose her arrest was motivated by a desire to protect her privacy, not to deceive the government.

Conditions Referenced

Disqualifying

DC 1raisedAllegations or Admissions of Criminal Conduct, Regardless of Whether the Person Was Formally Charged.
DC 2raisedA Single Serious Crime or Multiple Lesser Offenses.
DC 1raisedReliable, Unfavorable Information Provided by Associates, Employers, Coworkers, Neighbors, and Other Acquaintances.
DC 2raisedThe Deliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire, or Similar Form Used to Determine Security Clearance Eligibility or Trustworthiness.
DC 4raisedPersonal Conduct That Increases an Individual's Vulnerability to Coercion, Exploitation or Duress, Such as Engaging in Activities Which, If Known, May Affect the Person's Personal, Professional, or Community Standing or Render the Person Susceptible to Blackmail.

Mitigating

MC 1appliedThe Criminal Behavior Is Not Recent.
MC 3appliedThe Person Was Pressured or Coerced Into Committing the Act and Those Pressures Are No Longer Present in That Person's Life.
MC 4appliedThe Person Did Not Voluntarily Commit the Act And/or the Factors Leading to the Violation Are Not Likely to Recur.
MC 6appliedThere Is Clear Evidence of Successful Rehabilitation.

Key Rule Quoted

“The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for assignment to sensitive positions, including trustworthiness decisions.”

Procedural Posture

SOR issuedFeb 8, 2006
Answer filedApr 11, 2006
Hearing heldJun 20, 2006
Decision dateNov 17, 2006

Cite For

Successful Rehabilitation in Cases Involving Past Criminal Conduct
Mitigation of Personal Conduct Concerns Due to Privacy Motivations
Consideration of Age and Maturity in Trustworthiness Determinations

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 did not list her 2002 arrest for disorderly conduct on her 2003 and 2004 Questionnaires for Public Trust Positions because she knew her co-workers would discuss such information about her as they did about other co-workers.	For Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	Claimed Explanation of Omission Credible
2.b	Applicant deliberately did not list the 2002 arrest because she did not want people at work to know of her alcohol and marital problems.	For Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	Claimed Explanation of Omission Credible

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant did not list her 2002 arrest for disorderly conduct on her 2003 and 2004 Questionnaires for Public Trust Positions because she knew her co-workers would discuss such information about her as they did about other co-workers.

For Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

—

Claimed

Explanation of Omission Credible

2.b

Applicant deliberately did not list the 2002 arrest because she did not want people at work to know of her alcohol and marital problems.

For Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Criminal Conduct

Denied

(a) deliberate omission, concealment, or falsification on a security form

(b) deliberately providing false information to an investigator or official

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

—

Claimed

Explanation of Omission Credible

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested on January 18, 1995, for battery and disorderly conduct. The charges were dismissed in court because of her injuries.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense (d) evidence of successful rehabilitation (time, restitution, employment, etc.) (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.b	Applicant was arrested again on May 4, 2002, in her residence and charged with two counts of disorderly conduct. She pled guilty to disorderly conduct, and was put on probation for 18 months.	For Applicant	Unspecified Criminal Conduct	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense (d) evidence of successful rehabilitation (time, restitution, employment, etc.) (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.c	Applicant knowingly and willfully withheld information from the Government, making that action a violation of 18 U.S.C. § 1001.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was arrested on January 18, 1995, for battery and disorderly conduct. The charges were dismissed in court because of her injuries.

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

—

1.b

Applicant was arrested again on May 4, 2002, in her residence and charged with two counts of disorderly conduct. She pled guilty to disorderly conduct, and was put on probation for 18 months.

For Applicant

Unspecified Criminal Conduct

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

—

1.c

Applicant knowingly and willfully withheld information from the Government, making that action a violation of 18 U.S.C. § 1001.

Against Applicant

Unspecified Criminal Conduct

Conduct No Charge

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

—

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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

WHOLE PERSON ANALYSIS

FORMAL FINDINGS

DECISION

FOOTNOTES

APPEARANCES