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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 06-24224
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: James F. Duffy, Esquire, Department Counsel
For Applicant: Pro Se 
______________
Decision
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HOGAN, Erin C., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on March 17,
2006. On September 10, 2007, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
E and M for Applicant. The action was taken under Executive Order 10865,
Safeguarding Classified Information within Industry (February 20, 1960), as amended;
Department of Defense Directive 5220.6, Defense Industrial Personnel Security
Clearance Review Program (January 2, 1992), as amended (Directive), and the revised
adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and
effective within the Department of Defense for SORs issued after September 1, 2006. 
 
Applicant acknowledged receipt of the SOR on September 13, 2007. He
answered the SOR in writing on September 21, 2007, and requested a decision on the
written record. DOHA received the request on September 26, 2007. Department
Counsel submitted a File of Relevant Material (FORM) on October 31, 2007.  Applicant
received a copy of the FORM on November 6, 2007.  He responded to the FORM on
November 18, 2007. The FORM as well as Applicant’s response to the FORM was
forwarded to the hearing office on November 30, 2007. I received the case assignment
 Item 5. 1
 Item 5. 2
 Item 8. 3
 Item 7 at 6.4
 Item 7 at 3-4. 5
 Item 7 at 9. 6
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on December 10, 2007. Based upon a review of the case file, pleadings, and exhibits,
eligibility for access to classified information is denied.
Findings of Fact
In his Answer to the SOR, dated September 21, 2007, Applicant denied all the
allegations.
Applicant is a 54-year-old employee of a defense contractor seeking to maintain
a security clearance. He submitted a security clearance application on March 17, 2006.1
He has held a security clearance since 1989.2
In March 2003, Applicant was hired by a defense contractor to work on a
program which provided television services to military ships at sea. The company was a
subcontractor to the main company who was awarded the contract.3
In March 2005, the company encountered a funding issue with the government.
On March 2, 2005, Applicant’s program manager sent out an e-mail indicating that until
funding was in place all communications with the government customer should be
filtered through him or the main contractor.  4
In March/April 2005, Applicant’s program manager became suspicious of
Applicant’s “over-involved” interaction with the government employees who worked on
the contract. He received approval to search Applicant’s e-mail activity on the office
server. The initial review of Applicant’s e-mail provided nothing substantive but the
program manager continued to monitor his work e-mail.  5
On March 17, 2005, Applicant’s wife sent the program manager an e-mail on
Applicant’s work e-mail account accusing him of lacking compassion pertaining to a
knee injury Applicant suffered.   This raised an issue about her unauthorized use of the6
company e-mail system. Applicant explained in his response to the FORM that he was
checking his e-mail while at home on sick leave. His wife was there when he was
reviewing his e-mails and became upset about his program manager’s lack of sympathy
 Response to FORM, dated November 18, 2007.7
  Item 7. 8
  Item 6.9
 Item 8. 10
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for his medical condition which resulted in her sending an e-mail to the program
manager on Applicant’s business e-mail account.7
The program manager continued to review Applicant’s e-mail. He discovered that
on June 1, 2005, Applicant sent a training guide that was not finalized to the
government employees who were working on the contract. The rule that all
communications with the government customer should be filtered through the program
manager or the principal contractor was still in effect.  Applicant sent additional items of
information to the government customer without authorization. The items included
information that management considered proprietary information belonging to the main
contractor and another company. The release of this information made Applicant’s
company vulnerable to litigation.  Applicant also made several disparaging comments in
the e-mails sent to the government customer about his boss (the program manager)
and the main contractor.8
On June 13, 2005, Applicant’s employer terminated him for 1) insubordination
and willful disobedience of assignments and/or orders; 2) disclosure of company
processes and records that originated due to the company’s development and
production; 3) removal of company records without authorization; 4) break of
confidentiality to the company, his supervisor and co-workers as well as other
contractors involved in the program; and 5) conflict of interest.  9
On the same day that he was terminated, Applicant called the program manager
of the government agency who Applicant worked with on the contract. She advised him
to wait for a phone call. He received a phone call from another defense contractor and
was hired by that defense contractor the same day. Although he was completely
shocked about the basis for his termination, he did not rebut the charges because he
had obtained new employment.  He indicated in his response to the FORM that the10
program manager of the government customer did not want to lose access to this
technical expertise. 
In his response to the SOR, dated September 21, 2007, Applicant maintains that
he did not release proprietary information to the government customer. He claims that
the technical manual and training guide were government property and that his former
employer had no claim to them. Any work provided by his former employer was
performed with products developed by the system’s original equipment manufacturer.
He also claims that his supervisor and the principal contractor were aware of any e-
mails sent to the government customer because they were copied on any e-mail
transmissions related to the contract. Applicant did not provide additional documentation
 Item 7 at 6-26. 11
 Item 7 at 13.12
 Item 4. 13
 Response to FORM, dated November 18, 2007. 14
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verifying that he sent copies of the items sent to the government agency to his program
manager and the main contractor. The e-mails the company attached to the termination
memorandum do not show Applicant sent copies to his supervisor and the main
contractor.   In fact, Applicant blind copied the program manager of the government11
customer on e-mail correspondence that he sent to the main contractor.12
Applicant disputes the conflict of interest allegation. He states that he held no
other jobs and his work consisted solely of the work assigned to him as part of the
subcontract.   13
In his response to the FORM, dated November 18, 2007, Applicant states that it
was his first opportunity to review a copy of the program manager’s memorandum which
outlines the basis for Applicant’s termination. He claims that any proof that he would
need to counter these allegations was contained in his company e-mail account, which,
he no longer has access to because of his termination. He claims that the main
contractor instructed him to send the training documents back to the government
customer via e-mail and that he copied both the main contractor and his program
manager on the e-mail transmissions.  He states that claims of disseminating another
company’s proprietary information is false. He states the information came from the
company’s manual and that the government customer’s engineers have access to all
equipment for the program. Anyone with access to the equipment has the ability to open
the equipment and document the wiring of the cards and/or interconnection within the
equipment. He states this is a standard trouble-shooting procedure when dealing with
system problems on board ships. He believes that his former program manager has
treated him unfairly since November 2004, after he suffered from a heart attack. He
provided the name and number of the government employee he worked closely with on
the contract. He claims that she will verify that he was the sole source of system
expertise which is why she made an effort to find him another job with a company that
she would have access to his knowledge.  14
Policies
When evaluating an Applicant’s suitability for a security clearance, the
Administrative Judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful in
evaluating an Applicant’s eligibility for access to classified information.
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These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The Administrative Judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
2(c), the entire process is a conscientious scrutiny of a number of variables known as
the “whole person concept.” The Administrative Judge must consider all available,
reliable information about the person, past and present, favorable and unfavorable, in
making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
Applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline E, Personal Conduct
The Government established a prima facie case under Guideline E, Personal
Conduct. The overall security concern relating to the Personal Conduct guideline is set
out in AG & 15:      
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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 tor provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.  
The guideline notes several conditions that could raise security concerns. PC DC
¶ 16(d) (credible adverse information that is not explicitly covered under any other single
guideline, 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: This
includes but is not limited to consideration of: (1) untrustworthy or unreliable behavior to
include breach of client confidentiality , release of proprietary information, unauthorized
release of sensitive corporate or other government protected information; (3) a pattern
of dishonesty or rule violations) applies to Applicant’s case. 
The government established a prima facie case that Applicant was terminated
from his employment with a defense contractor in June 2005 for insubordination or
willful disobedience of assignments or orders; disclosure of company processes and
records that originated due to the company’s development and production; removing
company records without authorization; breach of confidentiality to his company, his
supervisor, co-workers and other contractors working on the contract; and conflict of
interest. 
The record evidence establishes that Applicant willfully disobeyed his program
manager’s order to filter any communications with the government contractor through
the program manager or the main contractor. Applicant forwarded the training manual
he was working on directly to the government customer without consulting with the
program manager or the main contractor.  Applicant maintains that he copied the
program manager and the main contractor when e-mailing the documents to the
government customer but has provided nothing to verify this action. Even if he did so,
the order directs that employees contact the program manager or main contractor
before communicating or sending information to the government contractor.  Even if he
copied the program manager and the main contractor in his e-mail, he still did not follow
the terms of the order. Applicant did not coordinate with them prior to sending the
document. It is clear from the program manager’s memorandum outlining the cause for
termination that the order was still in effect at the time Applicant forwarded the
information to the government contractor.
Applicant’s blind copying the government customer on certain e-mail
transmissions that he sent to the main contractor is a breach of confidentiality. The
disclosure of company processes and records allegation relates to the information sent
to the government customer about another contractor’s proprietary information
pertaining to the development of the product. Although Applicant maintains the
 Directive, ¶ E3.1.15.15
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information was not proprietary, his former employer thought otherwise.  Aside from his
own assertions, he provided no documents verifying that the information was not
considered proprietary by the company who developed the product.
The guideline also includes examples of conditions that could mitigate security
concerns arising from personal conduct. Two Personal Conduct Mitigating Conditions
(PC MC) are potentially applicable to Applicant’s case. PC MC ¶ 17c (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) does not apply. Applicant’s
company considered his conduct so serious that it warranted termination. The company
was particularly concerned about their vulnerability to being sued by the main contractor
and the other company whose proprietary information was released without
authorization. The e-mail communications reveal that Applicant had little respect for the
program manager and the main contractor. His disparaging comments about his
superiors in e-mails with the government customer demonstrate poor judgment. Blind
copying e-mail communications sent to the main contractor to the government customer
raises issues about his trustworthiness.  Applicant was terminated from employment in
2005. It is too soon the conclude that sufficient time has passed to indicate that
Applicant’s conduct no longer raises doubts about his reliability, trustworthiness, and
good judgment.
PC MC ¶ 17(d) (the individual has acknowledged the behavior and obtained
counseling to change the behavior or taken other positive steps to alleviate stressors,
circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur) does not apply. Applicant maintains
that he did nothing wrong and therefore has taken no steps to rectify his past conduct.
While he has several explanations for his conduct, he provided no corroborating
evidence to support his assertions.  
The government established a prima facie case raising security concerns under
personal conduct. As such, Applicant has the ultimate burden of persuasion as to
obtaining a favorable clearance decision.   Applicant has not met that burden. 15
Guideline M, Use of Information Technology Systems
The government did not establish a prima facie case under Guideline M. The
security concern under Guideline M is set in AG ¶ 39:
Noncompliance with rules, procedures, guidelines or regulations pertaining
to information technology systems may raise security concerns about an
individual’s reliability and trustworthiness, calling into question the
willingness or ability to properly protect sensitive systems, networks and
information. Information Technology Systems include all related computer
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hardware, software, firmware, and data used for the communication,
transmission, processing, manipulation, storage, or protection of
information.
There is nothing in the record evidence that indicates Applicant misused the
information technology systems. No rules, procedures, guidelines or regulations
pertaining to the company information technology systems were included in the record
which would raise questions pertaining to Applicant’s reliability and trustworthiness with
regard to the protection of sensitive systems, network and information. While there was
one occasion where Applicant’s wife sent his program manager an e-mail from
Applicant’s company e-mail account complaining about the program manager’s lack of
compassion pertaining the Applicant’s medical condition, there is nothing else which
indicates Applicant misused or manipulated the company’s information technology
systems. Granted, Applicant did not demonstrate the best judgment in allowing his wife
to send the program manager an e-mail on his business account, however, there were
no other instances where his wife used Applicant’s company e-mail. Considering the
company was monitoring Applicant’s e-mail, they would have discovered further e-mails
if she had.  Guideline M is found for Applicant.  
Whole Person Concept
Under the whole person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances. The Administrative Judge should consider the nine
adjudicative process factors listed at AG ¶ 2(a): “(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
individual’s age and maturity at the time of the conduct; (5) 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.”
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.       
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case.  Applicant was a mature adult at the
time he committed the conduct which was the basis for his termination. His conduct was
unprofessional and he fails to acknowledge any wrongdoing and/or provide evidence
supporting his assertions that he did not disobey company orders, breach company
confidentiality, or disclose another company’s proprietary information without
authorization. He provided minimal information about his current employment situation.
Overall, the record evidence leaves me with questions or doubts as to Applicant’s
eligibility and suitability for a security clearance. For all these reasons, I conclude
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Applicant did not mitigate the security concerns arising under the personal conduct
guideline. 
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline E: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Paragraph 2, Guideline M: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
_________________
ERIN C. HOGAN
Administrative Judge