KEYWORD: Guideline K; Guideline E
DIGEST: An applicant in a position of supervision can be held accountable for security
violations resulting from a failure to supervise subordinates properly.  The Judge’s decision lists
multiple security violations during Applicant’s supervisory tenure.   Favorable decision reversed.
CASENO: 06-21537.a1
DATE: 02/21/2008
DATE: February 21, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-21537
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Emilio Jaksetic, Esq., Department Counsel
FOR APPLICANT
John F. Mardula, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On December 11, 2006, DOHA issued a statement of reasons advising Applicant of the
basis for that decision—security concerns raised under Guideline K (Handling Protected
Under Guideline K, Department Counsel appeals the Judge’s conclusions regarding SOR ¶ 1.a.(2), but not 1
1.a. (1).  
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Information) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan.
2, 1992), as amended (Directive).  Applicant requested a hearing.  On September 28, 2007, after the
hearing, Administrative Judge Jacqueline T. Williams granted Applicant’s request for a security
clearance.  Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Department counsel raises the following issues on appeal: whether the judge made certain
findings of fact that are erroneous because they fail to reflect a reasonable interpretation of the record
evidence as a whole; and whether it was arbitrary, capricious, or contrary to law for the Judge to
conclude that Applicant’s conduct under Guideline K  was mitigated  and that Applicant’s conduct1
under Guideline E did not raise security concerns.
Whether the Record Supports the Judge’s Factual Findings
Facts:
The Judge made the following relevant findings of fact:
In December 2000, while a security manager for a defense contractor, Applicant failed to
secure a safe which contained classified information.  No classified information was compromised.
Applicant reported the violation to her supervisor and made suggestions for improving security for
the safe.
In 2004, Applicant was Facility Security Officer (FSO) and supervised three staff members.
Over a period of several years, one of those three employees committed multiple security violations
with regard to a particular account the employee managed.  Applicant was also alternate custodian
of that account.  Applicant received her training on the account from the employee.  Applicant relied
on the employee’s experience and did not verify the employee’s work.  Applicant was not aware that
the employee had received several notices regarding the delinquent status of the account.  The
resulting investigation revealed that Applicant’s performance in handling the account reflected a
pattern of gross negligence and disregard of security requirements.  As supervisor, Applicant was
held responsible for the security violations of her employee and was suspended by her employer for
one week without pay.  No classified information was compromised.
Applicant is no longer a supervisor.  She received ratings of “outstanding” from her employer
in 2006.  She submitted four character reference letters, and three coworkers testified on her behalf.
Discussion:
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence—“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the same record.”
Directive ¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”  Consolo v. Federal Maritime
See Transcript at 157-165, referring to specific account manual, Manual 90-1, ¶ 17.b.(1).2
Transcript at 49-50, 55, 57, 85, and 141.3
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Comm’n, 383 U.S. 607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give
deference to the Judge’s credibility determinations.  Directive ¶ E3.1.32.1. 
As stated above, Department Counsel has challenged certain of the Judge’s factual findings.
The Board will address these findings in its analysis below.
Whether the Record Supports the Judge’s Ultimate Conclusions
A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision “including a ‘rational connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  The
Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is
arbitrary, capricious, or contrary to law.  Directive ¶ E3.1.32.3.  “The general standard is that a
clearance may be granted only when ‘clearly consistent with the interest of the national security.’”
Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988).
Department Counsel contends that the Judge erred in finding that Applicant’s conduct under
Guideline K was mitigated.  Department Counsel states that the Judge found mitigation for the
following reasons: “(a) the custodian was responsible for the account, (b) Applicant was not aware
of the custodian’s negligent handling of the account, (c) Applicant had not been notified by the
custodian that inquiries had been made about the status of the account, (d) the problem with the
[particular] account happened once and did not recur, (e) Applicant had been improperly trained to
handle the [particular] account, and (f) Applicant responded favorably and now demonstrates a
positive attitude toward the discharge of security responsibilities. . .”  Department Counsel’s
contentions have merit.
With regard to point (a), Applicant characterized her responsibility for the particular
classified account as minimal.  The custodian had primary responsibility for the account.  However,
Applicant had responsibility for the account as the custodian’s supervisor, the FSO, and as alternate
custodian.  As alternate custodian, Applicant had a duty to keep aware of the day-to-day activity of
the account in order to assume the duties of the account custodian, when necessary, without undue
interruption of operations.   There is considerable record evidence regarding the duties of a2
supervisor and an alternate custodian,  and Applicant herself admitted that her supervision was very3
lax.  Transcript at 112-113.
  
With regard to points (b) and (c), the Judge could reasonably find that Applicant was not
aware of the account custodian’s negligent handling of the account  and that Applicant had not been
notified by the custodian that inquiries had been made as to the status of the account.  However,
those facts do not mitigate the security concerns of Applicant’s actions.  The Board has held that an
applicant in a position of supervision can be held accountable  for security violations resulting from
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a failure to properly supervise subordinates.  See, e.g., DISCR Case No. 89-0781 at 7 (App. Bd. Feb.
23, 1993).  Applicant commented that she was to “spot check” the custodian’s work.  Transcript at
134.  As noted above, Applicant admitted that her supervision was very lax. 
With regard to point (d), Applicant supervised the custodian of the account under discussion
here from mid-2001 to late 2004.  Transcript at 129, 146.  The Judge’s decision lists multiple
security violations which occurred in that account during that period.  Decision at 3.  The record does
not support the conclusion that the negligent handling of the account happened once and did not
recur.  The violations were continuous and recurred until Applicant had moved to another position
in the company and a new primary custodian had been appointed.
With regard to point (e), Applicant stated that she did not receive training for the specific
account at issue.  She had received security training, including refresher courses.  When Applicant
became responsible for that specific type of sensitive account, she should have asked for training
specific to that type of account.   Applicant did not do so and did not try to familiarize herself with
the relevant directives.  Transcript at 132-133, 141.  This failure is related to her lax supervision and
is not a cause for mitigation.
As to point (f), while there is some support in the record for the Judge’s conclusion on this
point, there is much evidence to the contrary.  The Judge accepted many of Applicant’s
characterizations of the events at issue.  Some of those characterizations are contained in the points
under discussion here.  Applicant has attempted to minimize and rationalize her failures by placing
the blame on the account custodian or on her employer.  In her answer to the SOR, Applicant stated
that she “thoroughly disagreed with the disciplinary action and the wording of the adverse report,
but in an effort to move past this incident, I accepted the responsibility and disciplinary action.”
Response to SOR at 3.  When questioned about her response to the report, Applicant stated that it
was “not only false and misleading, but libelous and bordered on the lines of defamation of
character.”  Response to SOR at 3 and Transcript at 152-153.  The record evidence indicates neither
a favorable response to the incidents in question nor a positive attitude toward security duties.
Overall, the Administrative Judge failed to plausibly interpret the record evidence as a whole.
 Applicant admitted to very lax supervision.  As an alternate account custodian and FSO, Applicant’s
duties were not “minimal” and required her to obtain knowledge about the account rather than
merely rely on what others reported to her.  The security discrepancies in that account involved
something more than the one-time mishandling of protected information–Applicant continuously
failed to accomplish her duties with respect to the account from 2001 until late 2004.  Applicant’s
mishandling of her duties contributed to the security violations noted by the Administrative Judge
on page 3 of the Decision and lead to her suspension by her employer.  Applicant had significant
experience as an FSO and when she acquired alternate custodian duties with respect to the  account,
she should have realized that she needed training specific to that account.  She failed to request it,
and this contributed to her inadequate training.  While there is record evidence that Applicant is now
more reliable, there is also evidence that Applicant has not demonstrated a positive attitude by
downplaying her responsibility in the account’s security errors.  Once it is established that an
applicant has committed a security violation, she has “a very heavy burden of demonstrating that she
should be entrusted with classified information.” Such violations “strike at the heart of the industrial
security program,” and the “Administrative Judge must give any claims of reform and rehabilitation
strict scrutiny.”  See, e.g., ISCR Case No. 00-0030 at 9 (App. Bd. Sep. 20, 2001). Considering the
¶ 16.(c): “credible adverse information in several adjudicative issue areas that is not sufficient for an adverse4
determination under any other single guideline, but which, when considered as a whole, supports a whole-person
assessment of questionable judgement, 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;”
¶ 16.(d): “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. . .;”
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burden on Applicant and the record evidence as a whole, it is not reasonable to conclude that
Applicant mitigated security concerns under Guideline K. 
Department Counsel correctly notes another error which involves both the Judge’s factual
findings and her conclusions.  The Judge stated in her factual findings that there was no compromise
of security as a result of Applicant’s actions.  Decision at 3.  However, the Judge later concluded that
security was compromised by Applicant’s actions.  Decision at 6.  There is testimony in the record
that an agency determination of the existence of a security compromise is controlling.  Transcript
at 34-35.  In this case, the agency determined that a compromise occurred.  See Government Exhibit
4.
Department Counsel also argues that the Judge erred by concluding that Applicant’s conduct
did not raise security concerns under Guideline E.  Department Counsel’s argument has merit.  The
Judge quoted language from ¶¶ 16.(c) and 16.(d) of the Revised Adjudicative Guidelines of the
Directive to support her conclusion.   Because Applicant’s actions under Guideline K were sufficient4
to support a “basis” for disqualification under Guideline K, the Judge concluded that there were no
security concerns under Guideline E in Applicant’s case.  However, the Directive does not provide
that if conduct raises a disqualifying condition under a specific guideline, then that conduct is
precluded from consideration under any other guideline.  `As Department Counsel points out, the
introduction to ¶ 16 states that the “[c]onditions that could raise a security concern. . . include” the
seven listed subparagraphs, but are not limited to those seven conditions.  Moreover, the plain
meaning of ¶ 16.(c) anticipates that the adjudicating official will reach a favorable determination,
after considering disqualifying and mitigating conditions, under another single guideline, but then,
under this paragraph, consider the same conduct applying a whole-person analysis, which could
result in an unfavorable determination.  The Board has held that an applicant’s behavior may have
security significance under more than one Guideline.  See, e.g., ISCR Case No. 03-05072 at 6 (App.
Bd. Jul. 14, 2005).  While the revision of the Adjudicative Guidelines may modify the interpretation
of some Board precedents or preclude their application, the revision of Guideline E noted above does
not change the general principle stated in the above Board decision that behavior can have security
significance under more than one Guideline.  The language of the revised Adjudicative Guidelines
is consistent with this principle.  The Judge’s conclusion not to consider the conduct under
Guideline E in this case is erroneous.
The record evidence in this case does not support the Judge’s favorable conclusions.  The
errors discussed above render the Judge’s decisions arbitrary, capricious, or contrary to law.  The
decision is not sustainable.  
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Order
The Judge’s favorable security decision is REVERSED.
Signed: Michael D. Hipple   
Michael D. Hipple
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin      
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: Jams E. Moody        
James E. Moody
Administrative Judge
Member, Appeal Board