It is not always the lie you tell that gets you into trouble. It is more often the lie you ‘misremember’. Therein lies the crux of the adjudicative guideline E, Personal Conduct. Personal Conduct covers an array of conduct, behavior and actions that could reflect negatively on an individual’s ability to protect classified information, including refusal or failure to cooperate in the personnel security process; refusal to provide truthful answers to questions posed by security officials; and deliberate omission or concealment of relevant facts. A prior article on this site (Personal Conduct and Security Clearances) goes into detail about what behavior falls under this guideline and what the mitigating factors/actions are to offset such behavior. The case I am writing about demonstrates how Personal Conduct is often combined with other guidelines and specifically how the falsification element of Personal Conduct can be a clearance killer on its own.
Falsification and Criminal Conduct – Case No. 12-01979
Applicant is a 43-year-old engineer working for a government contractor. Applicant was in the U.S. Army from 1989 until August 2002, when he was discharged under other than honorable (OTH) conditions in lieu of trial by court-martial. He was a drill sergeant and charged with rape, maltreatment of subordinates, violating a lawful general regulation for engaging in wrongful relationships with enlisted women, and indecent assault. After his discharge, he was hired by a government contractor and applied for a security clearance. In November 2003, Applicant provided a written statement denying the allegations against him. He reported that he was offered punishment under Article 15, Uniform Code of Military Justice (UCMJ), which he refused. He was then processed for a court-martial and took the OTH discharge. In August 2011, Applicant told a government investigator that he did not commit the offenses and had no idea why he was charged with indecent acts. In May 2013, Applicant provided a written statement in which he again reported that he did not do anything to warrant the charges being placed against him.
A frequent zinger – the bad memory defense
In September 2013, Applicant was issued a Statement of Reasons (SOR) to deny his security clearance based on adjudicative criteria E, Personal Conduct, and criteria J, Criminal Conduct. In November 2013, Applicant admitted to the criminal allegations, qualifying his answer that he did not remember the circumstances surrounding the 2002 offenses. He admitted to touching a female soldier inappropriately, but denied any use of physical force. Applicant answered the SOR and elected to have his case decided on the written record, File of Relevant Material (FORM). In May 2014, Applicant stated in his response to the FORM notice that he never tried to disavow any of the 2002 charges against him. He claimed that during the interview in 2011, the investigator did not provide any documents to refresh his memory of the circumstances that led to the 2002 charges. He further claimed that he did not remember the circumstances that led to the 2002 charges against him.
On June 25, 2014, the DOHA Administrative Judge (AJ), found Applicant’s statement and passage of time since his 2002 charges partially mitigated his criminal conduct. However, the AJ cited the Applicant’s falsifications in 2011 and 2013 were felony offenses under 18 U.S. Code, Section 1001. Additionally, his falsifications concerning his past criminal behavior raise serious questions about his reliability, trustworthiness, judgment and his ability to protect classified information. Applicant’s clearance eligibility was denied.
Analysis/Opinion
I agree completely with the AJ that the Applicant should not be granted a security clearance. I spent 13 of my 34 years in military service in Military Police and Intelligence organizations. I can attest that you do not forget details of allegations when you are questioned by criminal investigators or security officials and undergo a court-martial process. This Applicant’s statement that he did not recall details of the allegations and needed the investigator to provide documents to refresh his memory is absolutely evidence of his efforts to deny culpability and hide the truth. I also note that Applicant appeared pro se during the DOHA proceedings, meaning he represented himself. It’s deja vu, all over again. This is a bad idea. If an individual’s clearance application or adjudication process turns negative, the individual should consult with a security clearance attorney or a security clearance advocate to help them through the process.
