KEYWORD: Personal Conduct
DIGEST: During 2000 and 2001, Applicant downloaded personal software onto his company
computer, and he copied some games from his company computer for use on his personal computer
at home.  On several occasions between 1992 and 2000, he borrowed 50 to 75 cents from an
informal soda fund, and he took $15 on one occasion.  When he filed an insurance claim for an auto
accident, he was assured by passengers in his car that he had obeyed a stop sign, but he did not tell
his insurance company he could not personally remember whether he stopped.  He refuted the
allegation of deceiving his insurance company and mitigated security concerns based on his
computer misuse and taking money from the soda fund.  Clearance is granted.
CASENO: 06-06678.h1
DATE: 09/26/2007
DATE: September 26, 2007
In re:
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 06-06678
DECISION OF ADMINISTRATIVE JUDGE
LEROY F. FOREMAN
APPEARANCES
FOR GOVERNMENT
Robert E. Coacher, Esq., Department Counsel
FOR APPLICANT
Pro Se
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SYNOPSIS
During 2000 and 2001, Applicant downloaded personal software onto his company computer,
and he copied some games from his company computer for use on his personal computer at home.
On several occasions between 1992 and 2000, he borrowed 50 to 75 cents from an informal soda
fund, and he took $15 on one occasion.  When he filed an insurance claim for an auto accident, he
was assured by passengers in his car that he had obeyed a stop sign, but he did not tell his insurance
company he could not personally remember whether he stopped.  He refuted the allegation of
deceiving his insurance company and mitigated security concerns based on his computer misuse and
taking money from the soda fund.  Clearance is granted.
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STATEMENT OF THE CASE
On June 29, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement
of Reasons (SOR) detailing the basis for its preliminary decision to deny Applicant a security
clearance. This action was taken under Executive Order 10865, Safeguarding Classified Information
within Industry (Feb. 20, 1960), as amended and modified; Department of Defense Directive 5220.6,
Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and
modified (Directive); and the revised adjudicative guidelines (AG) approved by the President on
December 29, 2005, and implemented effective September 1, 2006.  The SOR alleges security
concerns under E (Personal Conduct).
Applicant answered the SOR in writing on July 13, 2007, denied some allegations and
admitted some, offered explanations, and requested a hearing.  The case was assigned to me on
August 15, 2007, and heard as scheduled on September 13, 2007.  I kept the record open until
September 21, 2007, to enable Applicant to submit additional evidence.  I received his evidence on
September 19, 2007, and it was admitted as Applicant’s Exhibit (AX) B. DOHA received the
transcript (Tr.) on September 21, 2007.
FINDINGS OF FACT
Applicant’s admissions in his answer to the SOR and at the hearing are incorporated into my
findings of fact.  I make the following findings:
Applicant is a 41-year-old network engineer for a defense contractor.  He has worked for his
current employer since January 2006 (Government Exhibit (GX) 2 at 17).  He was married in June
1988, and has three children, ages 18, 17, and 12.
Applicant served in the U.S. Army from June 1984 to June 1988 and was honorably
discharged.  He received a clearance in February 1985, while in the Army.  He received a clearance
as a government contractor in June 1989 (GX 1 at 31-32).
Applicant’s security clearance was revoked in October 2003, and his employment with a
federal contractor was terminated because a clearance was a condition of employment.  The
revocation of his clearance was based on the three events alleged in the SOR.  He applied for
restoration of his clearance in September 2005.
The SOR alleges that in 2000 and 2001, Applicant installed personal software on his work
computer and took software from his work computer for use on his personal computer (SOR  ¶1.a.1).
Applicant had an unclassified stand-alone personal computer configured to monitor and manage
several dial-up modems.  He testified there were no formal rules governing his use of his stand-alone
computer (Tr. 30).  He admitted installing a streaming music player on this computer without
authorization and copying games from his work computer and installing them on his personal
computer at home.  He also admitted installing his personal email account on his work computer,
installing software for a personal business site, and periodically checking his personal email at work.
He admitted downloading management software for the modems but asserted he had verbal
authorization for the download (Tr. 32).
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The SOR also alleges Applicant took money for personal use, in amounts up to $15 at a time,
between 1992 and 2000, from an informal soda fund operated by his coworkers (SOR ¶ 1.a.2).  He
admitted borrowing 50 or 75 cents at a time, on no more than ten occasions, to make purchases from
a vending machine.  He admitted taking $15 from the fund on one occasion when he paid for parking
in connection with official business.  He stated his two colleagues refused to share the cost of the
parking.  He asked for reimbursement from the “front office,” but when he was told there was no
petty cash fund, he took $15 from the soda fund to reimburse himself (Tr. 47).  
Applicant never disclosed to his coworkers that he was borrowing money from the fund.  He
testified he often put more money into the fund than the price of items he used, and he believed his
periodic overpayments were sufficient to cover the sums he took from time to time.  However, he
admitted he never reimbursed the fund for the $15 and never told his colleagues about it (Tr. 65).
Finally, the SOR alleges Applicant deliberately left out unfavorable facts from a claim he
submitted to his insurance company (SOR ¶ 1.a.3).  In December 2001, Applicant was involved in
an auto accident in a grocery store parking lot.  He testified he could not personally remember if he
stopped at a stop sign, but his wife and three children with him in the car assured him he had
stopped.  He did not tell the insurance company he could not personally remember if he stopped (Tr.
33-36).  After he received reimbursement checks from both his insurance company and the other
driver’s insurance company, he returned the check he received from his own insurance company (Tr.
36).  He denied lying to his insurance company (Tr. 37).
Applicant submitted evidence of his insurance claim history for the past five years.  It reflects
three claims: a towing claim in December 2002 and a glass loss in December 2004, both of which
were not Applicant’s fault; and one claim in October 2004, when Applicant rear-ended another
vehicle and was determined to be at fault (AX B at 13).
The allegations in the SOR were based entirely on Applicant’s admissions during a polygraph
interview triggered by his application to upgrade his clearance.  The evidence provided by Applicant
in response to DOHA interrogatories reflects that the initial decision to revoke his clearance was
based on the versions of Guideline M (Misuse of Information Technology Systems) and Guideline
E (Personal Conduct) in effect at the time.  Applicant appealed the revocation decision, and the
Guideline M security concerns were resolved in his favor, but the decision to revoke his clearance
was upheld under Guideline E.  The appellate decision does not state whether any of the allegations
under Guideline E were resolved in Applicant’s favor.
At the hearing, Applicant expressed embarrassment and regret for his behavior.  He testified
he has learned from his experience and now pays for everything out of pocket.  He testified, “If I
can’t afford it, I don’t have it.”  He takes nothing from the common work area and often pays for his
own office supplies (Tr. 57-58).
A former co-worker, colleague, and personal friend of Applicant who has known him for 12
years described Applicant as having excellent judgment, ethical behavior, and honesty while working
in classified environments.  He stated Applicant received numerous spot awards and certificates of
appreciation from multiple customers while working on classified projects (AX A).
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Applicant’s latest performance appraisal, dated January 16, 2007, gave him the top rating of
“superior” in quality of work, creativity, quantity of work, initiative, attendance and punctuality, and
attitude/attentiveness.  He received the next highest rating of “exceeds expectations” in all other
performance categories.  His overall rating was “superior.”  His rating official wants to make him
a supervisor.  GX 2 at 17-18.
POLICIES
“[N]o one has a ‘right’ to a security clearance.”  Department of the Navy v. Egan, 484 U.S.
518, 528 (1988).  As Commander in Chief, the President has “the authority to . . . control access to
information bearing on national security and to determine whether an individual is sufficiently
trustworthy to occupy a position . . . that will give that person access to such information.”  Id. at
527.  The President has authorized the Secretary of Defense or his designee to grant applicants
eligibility for access to classified information “only upon a finding that it is clearly consistent with
the national interest to do so.”  Exec. Or. 10865, Safeguarding Classified Information within
Industry § 2 (Feb. 20, 1960), as amended and modified.  Eligibility for a security clearance is
predicated upon the applicant meeting the criteria contained in the Guidelines.  Each clearance
decision must be a fair, impartial, and commonsense decision based on the relevant and material
facts and circumstances, the whole person concept, the disqualifying conditions and mitigating
conditions under each specific guideline, and the factors listed in AG ¶¶ 2(a)(1)-(9).
A person granted access to classified information enters into a special relationship with the
government.  The government must be able to have a high degree of trust and confidence in persons
with access to classified information.  However, the decision to deny an individual a security
clearance is not necessarily a determination as to the loyalty of the applicant.  See Exec. Or. 10865
§ 7.  It is merely an indication the applicant has not met the strict guidelines the President and the
Secretary of Defense have established for issuing a clearance.
Initially, the government must establish, by substantial evidence, conditions in the personal
or professional history of the applicant which disqualify, or may disqualify, the applicant from being
eligible for access to classified information.  See Egan, 484 U.S. at 531.  “Substantial evidence” is
“more than a scintilla but less than a preponderance.”  See v. Washington Metro. Area Transit Auth.,
36 F.3d 375, 380 (4th Cir. 1994).  The Guidelines presume a nexus or rational connection between
proven conduct under any of the criteria listed therein and an applicant’s security suitability.  See
ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).  
Once the government establishes a disqualifying condition by substantial evidence, the
burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.  See Directive ¶
E3.1.15.  An applicant “has the ultimate burden of demonstrating that it is clearly consistent with
the national interest to grant or continue his security clearance.”  ISCR Case No. 01-20700 at 3 (App.
Bd. Dec. 19, 2002).  “[S]ecurity clearance determinations should err, if they must, on the side of
denials.”  Egan, 484 U.S. at 531; see AG ¶ 2(b). 
CONCLUSIONS
Guideline E (Personal Conduct)
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The concern under this guideline is as follows: “Conduct involving questionable judgment,
lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions
about an individual’s reliability, trustworthiness and ability to protect classified information. Of
special interest is any failure to provide truthful and candid answers during the security clearance
process or any other failure to cooperate with the security clearance process.”  AG ¶ 15.  
SOR ¶ 1.a.3, alleging Applicant deliberately left out unfavorable details in his insurance
claims, is not supported by substantial evidence.  The evidence shows Applicant believed, based on
assurances from his wife and three children, that he stopped at the stop sign.  His failure to disclose
that he could not personally remember stopping was not a material omission.  There is no evidence
of deception or fraud.  I resolve SOR ¶ 1.a.3 in Applicant’s favor.
The evidence supporting the remaining two allegations raise the following disqualifying
conditions under this guideline:
AG ¶ 16(c) is raised by “credible adverse information in several adjudicative issue areas that
is not sufficient for an adverse determination under any other single guideline, but which, when
considered as a whole, supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations,
or other characteristics indicating that the person may not properly safeguard protected information.”
AG ¶ 16(d)(3) and (4) are raised by “credible adverse information that is not explicitly
covered under any other guideline and may not be sufficient by itself for an adverse determination,
but which, when combined with all available information supports a whole-person assessment of
questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the person may not properly
safeguard protected information,” including “a pattern of dishonesty or rule violations” and
“evidence of significant misuse of Government or other employer's time or resources.”
Finally, AG ¶ 16(e)(1) is raised by “personal conduct, or concealment of information about
one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as . . .
engaging in activities which, if known, may affect the person's personal, professional, or community
standing.” 
Since the government produced substantial evidence to raise the disqualifying conditions in
AG ¶¶ 16(c), (d)(3), (d)(4), and (e)(1), the burden shifted to Applicant to produce evidence to rebut,
explain, extenuate, or mitigate the facts.  Directive ¶ E3.1.15.  An applicant has the burden of
proving a mitigating condition, and the burden of disproving it is never shifted to the government.
See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).  
Security concerns under this guideline can be mitigated by showing “the offense is so minor,
or so much time has passed, or the behavior is so infrequent, or it happened under such unique
circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability,
trustworthiness, or good judgment.”  AG ¶ 17(c).  Applicant’s misuse of his company computer was
minor and last occurred in 2001.  His unauthorized borrowing of small amounts from the soda fund
and one-time theft of $15 were petty crimes, but they were not infrequent and they were significant
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breaches of his colleagues’ trust.  However, they last occurred in 2000.  I conclude this mitigating
condition is only partially established.
Security concerns also can be mitigated by showing “the individual has acknowledged the
behavior and obtained counseling to change the behavior or taken other positive steps to alleviate
the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur.”  AG ¶ 17(d).  Applicant has acknowledged and
expressed remorse for his misconduct.  His career took a serious setback when he disclosed it.  He
has learned his lesson and now buys only what he can afford out-of-pocket.  I am satisfied his
misconduct is unlikely to recur.  I conclude AG ¶ 17(d) is established.
Finally, security concerns can be mitigated by showing “the individual has taken positive
steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.”  AG ¶ 17(e).
Applicant voluntarily disclosed his misconduct during his polygraph interview, admitted it in
response to DOHA interrogatories, admitted it in his answer to the current SOR, and admitted it at
the hearing.  I conclude AG ¶ 17(e) is established.
Whole Person Analysis
In addition to considering the specific disqualifying and mitigating conditions under each
guideline, I have also considered: (1) the nature, extent, and seriousness of the conduct; (2) the
circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency
and recency of the conduct; (4) the applicant’s age and maturity at the time of the conduct; (5) the
extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other
permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure,
coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.  AG ¶¶
2(a)(1)-(9).  Several of these factors were discussed above, but some merit further comment.
Applicant held a clearance during his Army service and from June 1989 to October 2003.
His misuse of his company computer occurred in a loosely-controlled environment.  His misuse of
his computer, unauthorized borrowing from the soda fund, and petty theft of $15 cost him his
clearance and his job and severely limited his opportunity for advancement.  He appears to have
learned his lesson, and there is no record of any misconduct since 2001.  Notwithstanding his career
setback, he worked hard and performed well, to the extent that his current supervisor would like to
make him a supervisor.  He was remorseful, sincere, candid, and credible at the hearing.
After weighing the disqualifying and mitigating conditions under Guideline E, and evaluating
all the evidence in the context of the whole person, I conclude Applicant has refuted the allegation
in SOR ¶ 1.a.3, and mitigated the security concerns based on the remaining allegations.  Accordingly,
I conclude he has carried his burden of showing that it is clearly consistent with the national interest
to grant him a security clearance.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1. Guideline E (Personal Conduct): FOR APPLICANT
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Subparagraphs 1.a.1-1.a.3: For Applicant
DECISION
In light of all of the circumstances in this case, it is clearly consistent with the national
interest to grant Applicant a security clearance for Applicant.  Clearance is granted.
LeRoy F. Foreman
Administrative Judge