Time Alone does not Mitigate a Long History of Criminal Conduct

The adjudicative guidelines use mitigating factors in making security clearance determinations. One of those factors is the amount of time elapsed since the conduct occurred. In rare instances even administrative judges get it wrong in applying mitigating factors, which is exactly what happened in a security clearance appeal last month. The Defense Office of Hearing and Appeals (DOHA) judge presiding over the appeal incorrectly applied mitigation for the applicant’s long history of criminal conduct and granted him clearance eligibility. The DoD Department Counsel subsequently appealed that decision to the next higher board. Here are the highlights of the case:

The applicant had a history of criminal conduct spanning over 20 years from 1994 to 2016. He also failed to disclose all of his arrests, to include the more serious charges of rape and two counts of sexual intercourse with a minor in 1993. Other arrests were for DUI, providing false identification, escape, grand theft (vehicle), and receiving stolen property. The DoD CAF denied his clearance request and the applicant submitted a written appeal to DOHA. The judge reviewing the initial appeal incorrectly evaluated the available evidence and cited the fact the applicant had not been arrested or charged with anything since 2016.

The higher-level appeal board sided with the Department Counsel in their assertion that the applicant had not provided any information, evidence, or witnesses to corroborate his claims of having put his criminal past behind him. In fact, it is relevant to note that from 2003-09 the applicant was not arrested or charged with anything, but then reverted back to his criminal ways and was again arrested multiple times. The appeal board agreed that time alone without getting arrested again did not override the entire history of criminal conduct, especially when there were serious charges of which he was convicted. The favorable decision was reversed, and clearance eligibility denied. Go here to read the entire case summary.