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ISCR Case 97-0397.h1 — CASE

ISCR Case 97-0397.h1denied

Case Headnote

ISCR Case No. 97-0397.h1

deniedNov 19, 1997· Hon. Joseph Testan· hearing

Summary

A 37-year-old male applicant was denied a security clearance under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The denial stemmed from his history of sexually molesting his minor stepdaughter on three occasions between 1994 and late September 1996. While there was no evidence of a conviction, the applicant's November 21, 1996 statement to the Defense Investigative Service (DIS) indicated his intent to plead no contest or guilty to charges, confirming that charges were filed against him.

The disqualifying conditions raised included D.1, D.4, J.1, and J.2. The judge determined that the applicant's actions constituted criminal conduct and reflected adversely on his judgment, reliability, and trustworthiness.

Despite the applicant undergoing treatment and expressing remorse, the recency and seriousness of the conduct were deemed to preclude a finding of reformation. Consequently, the applicant failed to provide sufficient evidence of reformation or mitigation of his past conduct, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant sexually molested his minor stepdaughter on three occasions, which constitutes criminal conduct.
The applicant's actions reflect adversely on his judgment, reliability, and trustworthiness.
The applicant failed to provide sufficient evidence of reformation or mitigation of his past conduct.

Conditions Referenced

Disqualifying

D.1raisedSexual Behavior of a Criminal Nature, Whether or Not the Individual Has Been Prosecuted.
D.4raisedSexual Behavior of a Public Nature And/or That Which Reflects Lack of Discretion or Judgment.
J.1raisedAny Criminal Conduct, Regardless of Whether the Person Was Formally Charged.
J.2raisedA Single Serious Crime or Multiple Lesser Offenses.

Key Rule Quoted

“In view of the Directive's requirement that a security clearance be granted only upon a finding that to do so is clearly consistent with the national interest, the applicant has a heavy burden.”

Procedural Posture

SOR issuedJul 1, 1997
Answer filedJul 23, 1997
Hearing held—Determined on a written record.
Decision dateNov 19, 1997

Cite For

Denial of Security Clearance Due to Criminal Sexual Behavior Under Guideline D
Failure to Demonstrate Reformation After Serious Criminal Conduct Under Guideline J
Impact of Recent Serious Misconduct on Security Clearance Eligibility

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 applicant was found to have engaged in sexual misconduct by molesting his minor stepdaughter on three occasions. The judge ruled against the applicant on both allegations under Guideline D, citing the serious nature of the conduct and the applicant's failure to demonstrate sufficient reform or mitigation.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	Applicant sexually molested his minor stepdaughter on three occasions between 1994 and late September 1996.	Against Applicant	Criminal Sexual Conduct	Denied	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted (d) sexual behavior of a public nature or that reflects lack of discretion or judgment	—	—
2.a	Although there is no evidence that applicant was convicted of a crime as a result of this sexual misconduct, his November 21, 1996 statement to the Defense Investigative Service (DIS) (G-5) that he intends to plead no contest or guilty "to the charges" indicates that, at minimum, charges were filed against him.	Against Applicant	Criminal Sexual Conduct	Denied	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted (d) sexual behavior of a public nature or that reflects lack of discretion or judgment	—	—

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

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on both allegations under Guideline J, finding that the applicant's conduct, which included sexual molestation of a minor, reflected adversely on his judgment and trustworthiness. The applicant's claims of remorse and attempts at rehabilitation were not sufficient to mitigate the serious nature of his actions, leading to a denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant sexually molested his minor stepdaughter on three occasions between 1994 and late September 1996.	Against Applicant	Sexual Offense Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
1.b	Although there is no evidence that applicant was convicted of a crime as a result of this sexual misconduct, his November 21, 1996 statement to the Defense Investigative Service (DIS) that he intends to plead no contest or guilty 'to the charges' indicates that, at minimum, charges were filed against him.	Against Applicant	Sexual Offense Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

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: November 19, 1997 In Re: Applicant for Security Clearance ISCR Case No. 97-0397 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

FOR GOVERNMENT Melvin H. Howry, Department Counsel FOR APPLICANT Pro Se

STATEMENT OF CASE

On July 1, 1997, 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) (copy appended) 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. The applicant responded to the SOR in writing on July 23, 1997, and elected to have his case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's written case on or about August 28, 1997. The applicant filed a response to the Government's written case on September 29, 1997. The case was received by the undersigned Administrative Judge on October 6, 1997.

FINDINGS OF FACT

Applicant is thirty-seven years of age. Applicant sexually molested his minor stepdaughter on three occasions between 1994 and late September 1996. After the last incident in September 1996, the stepdaughter told "an unknown third party" (G-5) about the molestation and that person contacted the authorities. Applicant was questioned by the state child protective service, and he subsequently gave a statement to the police.(1) As a result of action taken by the state child protective service, applicant was forced to live apart from his family from September 24, 1996 to February 17, 1997. The family is now living together without any restrictions. From October 2, 1996 to April 15, 1997, applicant received treatment from a psychologist for conditions diagnosed as Frotteurism and Fetishism. In a letter dated July 20, 1997, the psychologist discussed his work with applicant and applicant's family. He stated in pertinent part: "I met (applicant) on October 2, 1996 when he came to me seeking my counseling services. Since that date I have come to truly admire him. Nobody excuses what he may have done, but I do hereby state that I have never in my years of practice seen any person tackle their predicament so forthrightly(2) and so valiantly. I have been honored to work with him. "I have worked with (applicant's) family as well. Without exception, together they have done everything that could have been expected of them. This is most unusual to see. Usually I must combat and confront until I break through. Not so (applicant) and his family. They were all open and honest and very cooperative from the start. In my 19 years of working with families, I have never witnessed the likes of what this family was able to do. "What all this means, I believe, is that (applicant) presents no security risk whatsoever. He cannot be blackmailed; he has nothing to hide. He is trustworthy and, most important, he is a very different man - a better man - than the one who provided his employer and his country a very valuable service back when he may have presented some risk and yet still had a security clearance." In his response to the Government's File of Relevant Material, applicant stated that he was heavily intoxicated during the three episodes of sexual abuse and that had he not been intoxicated, "(he knows) this would not have happened." He further stated that he has not consumed alcohol since September 24, 1996, he has "enlisted the help of (his) church clergy to assist with (his) abstention of alcohol," and he is a "totally changed person now" who refuses "to return to what (he) was in the past when alcohol controlled (his) life and the lives of (his) family."

POLICIES

Enclosure 2 of the Directive sets forth the Adjudication Policy (divided into Disqualifying Factors and Mitigating Factors) which must be followed by the Administrative Judge. Based on the foregoing Findings of Fact, the following Disqualifying Factors and Mitigating Factors are applicable: SEXUAL BEHAVIOR Disqualifying Factors: 1.Sexual behavior of a criminal nature, whether or not the individual has been prosecuted. 4. Sexual behavior of a public nature and/or that which reflects lack of discretion or judgment. Mitigating Factors: None.(3) CRIMINAL CONDUCT Disqualifying Factors: 1. Any criminal conduct, regardless of whether the person was formally charged. 2. A single serious crime or multiple lesser offenses. Mitigating Factors: None.

CONCLUSION

In DOHA cases, the Government has the initial burden of producing evidence that reasonably suggests an applicant cannot be relied upon to safeguard classified information. If the Government meets its burden, it has established a prima facie case. Once the Government establishes a prima facie case, the burden shifts to applicant to produce evidence in refutation, extenuation, mitigation or reformation sufficient to establish that, notwithstanding the Government's prima facie case, he or she can now be relied upon to safeguard classified information. In view of the Directive's requirement that a security clearance be granted only upon a finding that to do so is clearly consistent with the national interest, the applicant has a heavy burden. In this case, the Government established a prima facie case under Criteria D and J. The evidence establishes that applicant sexually molested his minor stepdaughter on three occasions between 1994 and late September 1996. This criminal and sexually perverted conduct reflects adversely on his judgment, reliability and trustworthiness, and reasonably suggests that he cannot be relied upon to safeguard classified information. Applicant failed to rebut the Government's prima facie case. Although he recognizes that his conduct was inappropriate, he is very remorseful, and he has indicated a very sincere desire to avoid a recurrence of this criminal and sexually perverted conduct, the recency and seriousness of the conduct precludes a finding at the present time that applicant has reformed and is unlikely to engage in this type of irresponsible conduct in the future. For this reason, Criteria D and J are found against applicant.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT PARAGRAPH 2: AGAINST 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. Although there is no evidence that applicant was convicted of a crime as a result of this sexual misconduct, his November 21, 1996 statement to the Defense Investigative Service (DIS) (G-5) that he intends to plead no contest or guilty "to the charges" indicates that, at minimum, charges were filed against him. 2. Applicant's forthrightness was not evident during the first session as evidenced by the following statement made by the psychologist in his session notes (G-7): "We will just have to see how it goes, because right now he is not the completely open, broken, repentant person I thought he was going to be. I hear a too much not taking responsibility and dodging for my comfort." 3. Mitigating Factor 3 does not apply because applicant's consumption of alcohol to excess involves questionable judgment and irresponsibility.

FOOTNOTES

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