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EVALUATING CRIMINAL CONDUCT

Although, Criminal Conduct is always a security/suitability concern; it becomes a potentially disqualifying condition under the Adjudicative Guidelines when it involves:

“(a)A single serious crime (felony) or multiple lesser offenses (infractions or misdemeanors).
“(b)Discharge or dismissal from the Armed Forces under dishonorable conditions.
“(c)Allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.
“(d)Individual is currently on parole or probation.
“(e)Violation of parole or probation, or failure to complete a court-mandated rehabilitation program.
“(f)Convicted in any court of the United States of a crime, sentenced to imprisonment for a term exceeding 1 year, and incarcerated as a result of that sentence for not less than 1 year.”


MITIGATING SECURITY CONCERNS

The following conditions may mitigate Criminal Conduct concerns:

Multiple Lesser Offenses Not Serious
Multiple minor traffic infractions without allegations of other criminal conduct would not be an issue under the Criminal Conduct criterion. However, they can be considered under the Personal Conduct criterion along with any other dishonest, unreliable, or rule-breaking behavior.

Alleged Crime Not Committed
Security clearance adjudications do not use the same standard of evidence used in criminal proceedings. Once the government has substantial evidence that the applicant committed a crime, the burden of proof shifts to the applicant to present evidence to refute the allegation. To propound this mitigating condition there must be proof that the applicant did not commit the alleged offense. Being accused but not arrest, arrested but not prosecuted, or prosecuted but found not guilty, many not be sufficient proof of innocence, if there was insufficient evidence to meet the criminal standard to prove guilt or a technical/procedural error was made that prevented a successful criminal prosecution.

Successful Rehabilitation
Evidence of rehabilitation can simply be “passage of time” without recurrence of criminal activity or any other indicators of continued antisocial, irresponsible or violent behavior. There is no general rule for how much time must elapse since the last criminal offense for full mitigation solely through “passage of time.” The amount of time depends on age when the crime occurred, how long criminal activity continued, the number and seriousness of the crimes, and the circumstances surrounding the crimes. Positive evidence of rehabilitation can significantly reduce the amount of time necessary to fully mitigate criminal conduct. Such evidence includes, “remorse or restitution, job training or higher education, good employment record, or constructive community involvement.” Also taken into consideration are other positive changes in lifestyle, associates, and social responsibility. These factors can positively influence an adjudicator’s determination that an applicant’s past conduct is not likely to recur or no longer cast any doubt on the applicant’s judgment, reliability or trustworthiness. Knowingly and willfully providing false information for a security clearance investigation and “currently being on parole or probation” are very difficult to mitigated, because there as been too little time to show rehabilitation.

Isolated Incident or Unique Circumstance
Many people commit a single non-violent criminal act due to an impulsive decision or an uncharacteristic lapse of judgment. Such crimes are sometimes prompted by a transitory situation. The presence of extenuating circumstances and/or a record of otherwise consistent reliability, trustworthiness, and good judgment over an significant period of time can mitigate suitability/security concerns by showing criminal conduct is not likely to recur, even though the crime may have occurred recently.

Pressured or Coerced
A single serious crime can be fully mitigated, if an applicant committed the crime due to threat of harm to himself or his family or other similar forms of duress. It is unlikely that this mitigating condition would be applicable to multiple criminal acts over a period of time, such as during a period of gang membership, unless it is propounded in combination with “successful rehabilitation.” It would also not be applicable when the threat of harm or duress occurred as reprisal for some breech of promise or misconduct by the applicant.

INTERIM CLEARANCES

Interim clearances can be declined when any potentially disqualifying issue exists. Significant criminal conduct on the SF86 can often be mitigated by information collected during a security clearance investigation. But interim clearances require issue mitigation before the investigation is completed. The SF86 asks about criminal conduct, but it does not ask for information that might mitigate the related security or suitability concerns. Applicants may include mitigating information in their SF86 (or its electronic equivalent known as eQIP) by using the “Continuation Space” at the end of the paper version or by using the “Comment Section” following each question on the eQIP version. Including any applicable mitigating information in this manner can only help an applicant’s chances of being granted an interim clearance.

William H. Henderson is a retired security investigator, author of Security Clearance Manual, and regular contributor to ClearanceJobsBlog.com and ClearanceJobs.com. Copyright © 2009 Last Post Publishing. All rights reserved.

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