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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------------------- )       ISCR Case No. 07-01076
SSN: ---- ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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CURRY, Marc E., Administrative Judge:
On July 17, 2007, the Defense Office of Hearings and Appeals (DOHA) issued
Applicant a Statement of Reasons (SOR) explaining why it was not clearly consistent
with the national interest to grant or continue a security clearance. This action was
taken under Executive Order 10865, dated February 20, 1960, as amended, and DoD
Directive 5220.6, dated January 2, 1992, as amended, 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. He
answered the SOR on August 3, 2007, electing to have the case decided on the written
record. 
Department Counsel mailed the government’s file of relevant material (FORM) to
Applicant on October 22, 2007. He received it on October 30, 2007. Applicant was
afforded an opportunity to file objections and submit material in refutation, extenuation,
or mitigation. He submitted a two-page response received by the government on
November 5, 2007. The case was assigned to me on December 13, 2007. Based upon
The FORM 1149 was signed by a Navy Petty Officer.1
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a review of the case file, pleadings, exhibits, and testimony, eligibility for access to
classified information is granted.
Findings of Fact
The SOR contains one allegation referenced under Guidelines K and E.
Applicant denies that he “failed to properly secure classified material in an authorized
manner in 2003," but admits he was “counseled regarding [his] actions and given a
warning” (SOR ¶ 1.a) 
Applicant is a 56-year-old married man. He has no children. He served in the
U.S. Navy from 1973 through his retirement in 1993 (Item 4 at 2). He has an associate’s
degree in forestry/wildlife management earned in 1990.
Since 1995, he has worked as a project manager at a defense contractor. His
duties include, among other things, missile system maintenance for Navy ships. The
defense contractor maintains two coastal offices on opposite sides of the country.
Applicant worked in the satellite office located across the country from the main office.
In December 2003, Applicant was tasked with overseeing the upgrade of a ship’s
missile system. Such projects normally take four weeks to complete (Item 6 at 3). In this
case, Applicant only had two weeks to complete the project before the ship deployed.
The upgrade project involved removing the obsolete missile system, disassembling it,
and removing it from the ship. 
The obsolete missile system consisted of nine components. Eight of its nine
components were labeled confidential. The ninth component was unlabeled. Typically,
when old, classified components were replaced, the ship’s supply officer was
responsible for transferring them to the defense contractor’s main office. In this case,
the supply officer was on leave, and Applicant was unaware of any backup transfer
procedures (Item 6 at 3). He was afraid that the parts would be lost or misplaced if he
left them on the ship after it deployed (Item 6 at 3).
Applicant decided to transfer the parts himself. He contacted his employer’s main
office to request an authorized courier to retrieve the components (Response to FORM,
at 1). He never received a response. As the deployment date grew nearer, he decided
to remove the components himself. He wrapped the parts in two separate, small brown
paper bags, taped and marked them “confidential,” completed a DD Form 1149, a form
documenting the transfer of government material from the ship’s custody,  and removed1
the components from the ship (Item 5 at 3). After removing them, he placed them in his
office safe which was certified to hold classified items (Response to FORM; Item 6 at 4).
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Applicant then contacted his company’s fleet technical support center at the main
office for instructions on disposing of the components. Again, he did not receive a
response (Item 6 at 3). 
Approximately eight months later during an annual self-inspection in July 2004,
Applicant disclosed that he was storing the components in the safe, prompting an
investigation (Item 5 at 1). Before then, he had never informed his supervisor that the
components were in the safe. Consequently, Applicant was counseled regarding his
actions and given a warning (Item 3 at 1).
According to the employer’s adverse information report, the components may
have been declassified at the time Applicant removed them from the ship (Item 5 at 2,
¶3). There is no record evidence documenting whether this issue was ever resolved.
The record evidence regarding whether the material was classified when Applicant
removed it from the ship is inconclusive. Absent conclusive evidence of whether the
components were classified, I accept Applicant’s contention that no compromise of
classified information occurred.
Applicant had never been reprimanded for his work performance before this
incident. He worked for his employer for another 10 months through May 2005 without
incident. After briefly being furloughed in March 2006 because of lack of work, he
returned in April 2006 to work on another project (Item 6 at 4). 
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.
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 overarching
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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
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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 an 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 K - Handling Protected Information
Under this guideline, “deliberate or negligent failure to comply with rules and
regulations protecting classified or other sensitive information raises doubt about an
individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard
such information, and is a serious security concern” (AG ¶ 33). Here, the SOR alleges
Applicant failed to secure classified material when removing it from a ship. Applicant
denies the allegation, and evidence upon which the government’s allegation is based
(Item 5) is inconclusive. The government has not met its burden because it failed to
prove the materials involved were classified. Therefore, I conclude there are no
Guideline K security concerns.
Guideline E - Personal Conduct
The government’s failure to establish the components were classified does not
end the security clearance scrutiny. When he began working on the project, Applicant
clearly believed the components were classified, yet failed to remove them from the ship
consistent with regulations governing the handling of classified material (See generally,
DoD 5220.22-M ¶¶ 2-100, 5-100, 5-202, and 5-204). Moreover, although he made two
requests for instructions to his main office, and received no response, he reached the
decision to store the material in the office safe without informing his immediate
supervisor. 
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This raises Personal Conduct security concerns. Under this guideline, “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” (AG ¶ 15). The disqualifying
condition most pertinent to Applicant’s case is AG ¶ 16 (d)(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.”
The incident occurred more than four years ago. Also, he was operating under
extreme time pressure. Although disposing of obsolete parts was normally not his
responsibility, he had to handle the task because the designated supply officer was on
leave at the time. No compromise of classified information occurred.  Before this
incident, he had never made any similar judgment lapses while performing his job
duties, and he has not made any since then. As punishment, he was merely given a
warning, and counseled. AG ¶ 17(c), “the offense is so minor, or so much time has
passed, or the bevavior 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,” applies.
Applicant has mitigated the personal conduct security concern.
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.
Here, the nature and seriousness of the conduct were minimal. The material
Applicant removed from the ship may not have been classified, and there is no evidence
any compromise occurred. He was merely issued a warning, and allowed to continue
working. Moreover, assuming for the sake of argument that the material was classified,
Applicant, by removing it from the ship before it deployed, and later attempting to
contact his company’s fleet technician, was performing his job duties in a good-faith
manner. 
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The unique nature of these circumstances renders the likelihood of recurrence
minimal. Applicant was working on a short deadline, and was faced with an
unanticipated situation, because the supply officer, who normally disposed of the
obsolete equipment, was on leave. Although he probably should have contacted his
supervisor before removing the items, or at minimum, talked with him after the removal,
he had never committed such judgment lapses in the past, and has not committed any
since the incident. Upon evaluating this case in the context of the whole person
concept, I conclude Applicant has mitigated the security concerns. Clearance is
granted.
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 K: FOR APPLICANT
Subparagraph 1.a: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is granted.
                                             
_________________
MARC E. CURRY
Administrative Judge