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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 06-05503
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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MASON, Paul J., Administrative Judge:
Applicant submitted her Security Clearance Application (SCA), on November 10,
2003. On November 7, 2007, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing security concerns under the criminal
conduct guideline (Guideline J) and the misuse of information technology systems
guideline (Guideline M). The action was taken pursuant to 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
made effective within the Department of Defense for SORs issued on or after
September 1, 2006. 
Applicant submitted her notarized answer to the SOR on November 21, 2007.
She elected to have her case decided administratively without a hearing. A copy of the
government’s File of Relevant Material (FORM, the government’s evidence in support of
the SOR) was sent to Applicant on January 22, 2008. Applicant received the FORM on
January 30, 2008. Applicant’s response was received by DOHA on February 22, 2008.
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The case was assigned to this administrative judge on March 6, 2008. Based upon a
review of the FORM, Applicant’s eligibility for access to classified information is granted.
Findings of Fact
Applicant admitted the one allegation under paragraph 1 (criminal conduct) and
one allegation under paragraph 2 (misuse of technology systems). Applicant is 32 years
old and has been employed by a defense contractor since November 3, 2003. She
seeks a security clearance. 
Criminal Conduct
In 2001, according to Applicant’s interview on July 3, 2007, with an investigator
from the Office of Personnel Management (OPM), she was 25 years old, and struggling
at a city university on the west coast. She became involved with 20 other individuals
(“group”) in the illegal uploading and downloading of pirated software. The reasons she
became involved were “it was during her stupid college years,” and “It was a way of
meeting new people because she was bored.” (interview with OPM, July 3, 2007) Some
members of the group would upload software to servers, while others would download
the software. The software consisted of games, software, and movies. The software
was not sold outside the group. Applicant did not make a profit, and did not believe the
group made a profit. 
The Federal Bureau of Investigation (FBI) conducted a raid on Applicant’s dorm
room on December 11, 2001. Along with 20 other defendants, Applicant was indicted on
June 11, 2002, for reproducing software for private gain, over a six-month period ending
December 11, 2001. The indictment stated that all the defendants were members of the
“group” (formed in 1997), and engaged in a conspiracy to illegally reproduce
copyrighted material during a 180-day period ending on December 11, 2001, in violation
of 17 U.S.C. 506(a)(2), and 18 U.S.C. 2319(c)(1). Applicant’s overt acts in furtherance
of the conspiracy occurred on July 5, 2001, when she accessed the primary server for
the “group,” and transferred pirated computer software, movies, and games.
On December 18, 2003, under the terms of a Plea Memorandum, Applicant
entered her guilty plea with the United States (U.S.), because of her conduct on July 5,
2001. The Plea Memorandum supplies more details of the illegal enterprise, including
the representation by the Government to recommend “the low end of any sentence
within the applicable guideline range, as calculated above.” (Plea Memorandum,
December 18, 2003, p. 2) The conspiracy involved making available thousands of
copyrighted software programs and games, exceeding a retail value of $1,000,000.00,
by uploading or downloading the software in violation of the copyrights. It was
determined during the course of the investigation leading to the Plea Memorandum that
the group had a hierarchy of responsibility as follows: (1) “council members” who
determined the terms and conditions under which the “group” was to operate; (2) “site
operators” who maintained the sites where the pirated software was located; (3)
“couriers” who specialized in transferring the illegal software around on the Internet;
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and, “members” who had achieved membership in the “group” but had no specific role
in the hierarchy. The Assistant United States Attorney classified Applicant as a
“member.” (Plea Memorandum, Facts to Support a Plea of Guilty, p. 9) 
On July 11, 2007, Applicant was sentenced to one count of conspiracy, in
violation of 18 U.S.C. 371. She received 36 months probation retroactive to December
18, 2003, the date that Applicant pled guilty. She also was assessed a $1,000.00 fine. 
In an attachment to her answer to the SOR, Applicant explained how her illegal
conduct helped turn her life around, both academically and professionally. She stated: 
In general, we tend to focus on the negative parts of a person’s life, yet,
ignore what the person has done after they have made a mistake. The
mistake that I made is stated in paragraph 1a in the Statement of
Reasons. I admit my wrongdoing. Instead of making excuses or finding
ways to deny my involvement, I pled guilty. I don’t regret what happened
since it has changed my life for the better. However, I do apologize for
what I did. Before it happened, I was struggling with school and struggling
with my life. I was failing classes and I was close to academic probation. 
Next, she explained in the attachment that after the police raided her dorm room
in December 2001, she sank into a period of depression, where she basically felt sorry
for herself. A few months later, she decided changes in her life were necessary, and
she was the only person to effect change. Her grades began to improve. She stated:
On December 2003, I received my Bachelors’ degree in Computer
Science. I have been working for [employer] for four years and enjoy what
I do. A year ago I bought my first house. I feel that I turned a bad situation
into something good. I have learned my lesson. I am more aware of what I
do. I think before I act. It has been an emotional battle, but I know how to
deal with it. I have faith that every thing will get better and that keeps me
going. 
Misuse of Technology Systems
On July 5, 2001, Applicant inappropriately accessed the primary file transfer
protocol and transferred pirated software.
Character Evidence
On June 29, 2007, the Human Relations Generalist of Applicant’s employer
authored a letter to the presiding judge describing Applicant’s character. The human
relations official indicated that Applicant told him about her crime, her regret for
becoming involved, and her assurance the behavior would never happen again. The
official noted Applicant had a promising future based on (1) her dependability as an
employee, and (2) her successful job performance. 
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Applicant’s older sister recalled in a character statement dated February 12,
2008 (part of Applicant’s response to the FORM), that while in college, Applicant had no
direction, and was in an abusive relationship. The older sister was impressed by
dramatic changes Applicant underwent following the offense by finishing college in
December 2003, and beginning her career with her employer in November 2003.
Applicant’s younger sister wrote a character statement extolling the favorable changes
Applicant made in finishing school in December 2003, and providing a positive impact at
her job. Applicant also served as a mentor for several of her younger sister’s high
school classmates. A friend who met Applicant in church in September 2007 considers
her a caring person. 
Applicant’s performance evaluations for 2005 through 2007 show her successful
job performance. Applicant’s scholastic transcript shows that she received her
Bachelor’s Degree in Computer Science on December 18, 2003. 
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 flexible rules of law that are applied in conjunction with the
general policy factors of 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 interest is the paramount consideration. AG ¶ 2b.
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.
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 is not restricted to normal duty hours. Rather, the relationship is an-around-
the-clock responsibility. The Government places a high degree of trust and confidence
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in individuals to whom it grants access to classified information. Decisions include
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.
Criminal Conduct (CC)
Criminal behavior casts doubts concerning a person’s judgment and
trustworthiness.
Misuse of Technology Systems (MTS)
Misuse or noncompliance with technology systems that raises questions about a
person’s willingness to properly protect computer systems. 
Analysis
Criminal Conduct
The Government has established a case under the CC guideline. On December
18, 2003, Applicant pled guilty to knowingly conspiring with others to make available
thousands of copyrighted programs, movies and games exceeding a value of
$1,000,000.00, a violation of 18 U.S.C. 371, conspiracy to commit copyright
infringement. On June 29, 2007, Applicant was sentenced to three years probation,
retroactive to December 18, 2003 (date of guilty plea). She was fined $1,000.00. CC
disqualifying condition (DC) 31.a. (a single serious crime or multiple lesser offenses)
applies. 
However, CC mitigating condition (MC) 32.a. (so much time has elapsed since
the criminal behavior happened, or it happened under such unusual circumstances that
it is unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment) and CC MC 32.d. (there is evidence of successful
rehabilitation; including but not limited to the passage of time without recurrence of
criminal activity, remorse or restitution, job training or higher education, good
employment record, or constructive community involvement) also apply. Almost seven
years have passed since the crime occurred. Applicant has made spectacular changes
in her life. In December 2003, she obtained her Bachelor’s Degree in Computer
Science, and, for the past four years, has been applying her knowledge as a software
engineer with her employer. Based on her comments to the OPM investigator in July
2007 and her answer to the SOR, I am confident she will not repeat the poor judgment
she demonstrated in 2001. The observations of the human relations official, her sisters
and her friend, persuasively show me she understands the gravity of her behavior, and
will never repeat this conduct in the future. 
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Even though Applicant was under the jurisdiction of the court until she was
sentenced in July 2007, thereby subject to probable incarceration for violating any of the
terms of the Plea Memorandum, the passage of at least six years without a recurrence
of criminal activity is entitled to some mitigation. Also, based on her poignant statements
about the criminal behavior being a watershed event in her life, I am convinced
Applicant is remorseful for her exhibition of poor judgment. Rather than continuing to
feel sorry for herself after the offense was uncovered in December 2001, she devoted
reinvigorated attention to her academics and improved her scholastic average. Her
perseverance paid off when she graduated from college in December 2003. Even
before she graduated from school, her current employer clearly took a chance on her by
granting her a position in November 2003. She has produced a good job performance
for more than four years. She has also had an impact on her younger sister’s high
school friends by providing mentoring advice. On balance, the evidence produced under
CC MC 32.a. and 32.d. warrant a finding for Applicant under the CC guideline. 
Misuse of Technology Systems (MTS)
Under the MTS guideline, security concerns are raised over the 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 hardware, software, manipulation, storage, or protection of
information. 
The Government has established its case under paragraph 2.a. Applicant
knowingly used her computer to access the group’s primary software site, and
transferred pirated software. She admitted she violated the federal law of conspiracy to
commit copyright infringement. She knew her behavior was wrong. MTS DC 40.f.
(introduction, removal, or duplication of hardware, firmware, software, or media to or
from any information technology system without authorization, when prohibited by rules,
procedures, guidelines or regulations) applies. 
However, MTS MC 41.a. (so much time has elapsed since the behavior
happened, or it happened under such unusual circumstances, that it is unlikely to recur
and does not cast doubt on the individual’s reliability, trustworthiness or good judgment)
applies. First, the Plea Memorandum addressing the details of the conspiracy shows
that Applicant’s participation in the criminal enterprise was minor as determined by the
prosecuting U.S. Attorney. Second, her conduct has not been repeated since 2001.
Third, in the six-year period after her apprehension, Applicant has used her time wisely
by obtaining her degree in December 2003, and compiling a good job performance
record over the last four years. The MTS guideline is resolved in Applicant’s favor. 
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Whole Person Concept (WPC)
Applicant has met her burden of persuasion under the CC and MTS guidelines.
The same conclusion is reached even after the circumstances of this case are
evaluated in the context of the whole person. Rehabilitation begins with the person
comprehending the seriousness of their conduct. Applicant has proven in her statement
to OPM in July 2007 and her November 2007 answer to the SOR that she fully
embraces the stupidity of her conduct in 2001. However, instead of flunking out of
school, she rallied herself to finish school and find a job in her field. The documented
success academically and professionally, translates to substantial behavioral changes
that eliminate the chances of this kind of conduct recurring. Both the CC and MTS
guidelines are found in Applicant’s favor. 
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 (Financial Considerations, Guideline F): FOR APPLICANT
Subparagraph 1.a. For Applicant
Paragraph 2 (Misuse of Technology Systems, Guideline M): 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 national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is granted.
                       
Paul J. Mason
Administrative Judge