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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------------ )     ISCR Case No. 07-00819
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: James F. Duffy, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on August 17, 2005. On October 30, 2007, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant  detailing security
concerns under Guideline M and Guideline E as the bases for its decision to deny his
request for a security clearance. 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 answered the SOR in writing on November 16, 2007, and requested a
decision without a hearing. On February 27, 2008, the government submitted a File of
Relevant Material (FORM) consisting of nine exhibits (Items 1-9). DOHA forwarded a
copy of the FORM to Applicant and instructed him to respond within 30 days of receipt.
Applicant submitted no response by the April 6, 2008, deadline. On May 27, 2008, the
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case was assigned to me to consider whether it is clearly consistent with the national
interest to grant or continue a security clearance for Applicant. Based upon a review of
the government’s FORM, including Applicant’s Answer to the SOR allegations (Item 4),
eligibility for access to classified information is denied.
Findings of Fact
DOHA alleged under Guideline M, use of information technology systems, and
Guideline E, personal conduct, that Applicant was terminated by a former employer in
January 2005 for using his government-provided computer and Internet access to view
sexually explicit prohibited web sites in violation of government policies (SOR ¶¶ 1.a
and 2.a). Applicant admitted that while employed as a systems administrator, he surfed
the Internet, and viewed pornographic web sites. He apologized for his “terrible mistake”
and averred it would not be repeated (Item 4). After reviewing the available evidence, I
make the following findings of fact:
Applicant is a 48-year-old designer who has been employed by a division of a
large defense contractor since March 2005. He had worked for the company as an
engineering analyst from July 1982 to June 2000 before it was acquired by its present
corporate parent. During his previous tenure, Applicant had collateral duties as the
security representative for his section (Item 4, Item 5). His present position occasionally
requires access to areas where a security clearance is required (Item 4).
Applicant was married to his first wife from June 1980 to April 1991. They had
twin daughters born in June 1981. He was on active duty in the U.S. military from July
1978 to July 1982 and held a top secret-level clearance. After his four-year enlistment
ended, he began working for his present employer as an engineering analyst. He
produced and updated drawings that were classified in nature (Item 4, Item 5).
In late June 1991, Applicant married his current spouse and became a stepfather
to two children aged 14 and 11. In June 2000, he left his defense contractor position for
the information technology sector. He worked for a succession of companies gaining
experience and responsibility (Item 4, Item 5).
From September 2001 to January 2005, he was employed as a contract
computer systems administrator on a government installation. Applicant was
responsible for administering a computer network connected to other federal
installations and he had daily access to a secure government computer. He also had a
second government computer with electronic mail and Internet access capability that he
used daily in the performance of his non-classified work. On October 3, 2002, Applicant
signed an Automated Information Systems User Acknowledgment Form authorizing his
use of a government-owned computer solely for business purposes (Item 4, Item 6, Item
7). 
Secure transmissions took 30 minutes or more to complete and Applicant found
himself with substantial “down time” on the job. In about early 2004, Applicant began to
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surf the Internet using his non-secure computer while awaiting secure transmissions. He
accessed several different types of non-business related web sites, including sport,
government and politics, finance and investment, news, photo searches, arts and
entertainment, education, personals and dating, travel, and even hate speech. At times,
he spent up to three hours in a given workday accessing the Internet for personal
purposes. Applicant considered the secure computer network to be his prime
responsibility, and as long as it was being monitored and running smoothly, he was
doing his job (Item 6, Item 7).
Between October 5, 2004, and December 23, 2004, Applicant spent about 7.95
total hours accessing over 500 sexually explicit prohibited web addresses on his
government work computer (Item 7). Applicant was aware access to pornography was
prohibited by government policy and in violation of the Automated Information Systems
Acknowledgment Form he had executed in October 2002, but he thought it was no big
deal since his work was being done (Item 6). On January 12, 2005, the government
contracting officer directed Applicant’s employer to remove him from his position on the
federal installation and terminate his services under the contract immediately because
of his unauthorized Internet access to sexually explicit prohibited web addresses, in
violation of the service’s core values of honor, respect, and devotion to duty, the policies
and guidelines involving personal use of government office equipment, and the
agreement Applicant had signed limiting his access to business purposes (Item 7).
When confronted by his employer, Applicant admitted his mistake. He was terminated
from his job for cause (Item 6).
Applicant was out of work for a few months until March 2005, when he was hired
by his present employer. Needing a security clearance for his work as a designer,
Applicant completed an e-QIP on August 17, 2005. He responded “Yes” to question 22,
concerning whether he had been fired from, quit, or left a job within the past seven
years under adverse circumstances, and indicated that in January 2005, he had “Left a
job for other reasons under unfavorable circumstances. Internet Misuse.” (Item 5).
On October 5, 2006, Applicant was interviewed by an investigator for the
Department of Defense about his separation from his previous employment. Applicant
indicated he had used his non-secure computer solely for business until the last nine to
twelve months of his employment when he began to surf the Internet during down time
in his job. Applicant explained his initial access to pornography using his work computer
was unintended (he entered an “innocent search word” into the Google search engine
and a porn site popped up) but he found them interesting and began looking at some of
them out of curiosity. Applicant admitted he knew he should not have been surfing the
Internet, particularly adult web sites. He did not consider it a big deal since his work was
being done. When he was called in by the company’s president, Applicant thought he
was going to be warned or reprimanded but he was fired. Applicant admitted he was not
allowed to collect unemployment even though he also claimed the president indicated
he would tell anyone who called that he had been laid off. Applicant denied he had a big
interest in pornography and indicated to the investigator he had made a “stupid
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decision” to access the adult sites and had learned his lesson. Applicant averred that
his spouse and his boss know about the details of the job termination (Item 6).
As of May 2007, Applicant’s spouse was also working as a designer for the
defense contractor that employs Applicant (Item 6). Applicant denies he could be
subjected to blackmail or coercion. To his understanding, he was fired for “excessive
unauthorized internet abuse.” In Answer to the SOR, Applicant expressed his remorse
and vowed to not repeat it (“I admit that I made a terrible mistake and apologize for it
and will not repeat it in the future.”) (Item 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.
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
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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 M—Use of Information Technology Systems
The security concern for use of information technology systems is set out in ¶ 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
hardware, software, firmware, and data used for the communication,
transmission, processing, manipulation, storage, or protection of
information.
The government and his employer relied on him as systems administrator to
comply with the policies and procedures concerning use of the information technology
system. Applicant violated government policies as well as an agreement he signed in
October 2002 concerning authorized use of a government-owned information resource
asset when he improperly and repeatedly surfed the Internet for personal use during
work hours in 2004. In addition to viewing news, sports, entertainment, and travel sites,
he accessed over 500 sexually explicit prohibited web addresses using his government
work computer between October 5, 2004, and December 23, 2004, if not before. He
knew his use of the non-secure government computer was for business purposes only
and he had agreed in writing to abide by this restriction. He also knew access to
sexually explicit web sites was prohibited. AG ¶ 40(e) (“unauthorized use of a
government or other information technology system”) applies.
There is no evidence of any misuse of a work computer by Applicant since he
started with his present employer in March 2005. While the passage of time is a
mitigating condition (see AG ¶ 41(a) (“so much time has elapsed since the behavior
happened, or it happened under unusual circumstances, such that it is unlikely to recur
and does not cast doubt on the individual’s reliability, trustworthiness, or good
judgment”)), his knowing disregard of policies prohibiting unauthorized use continues to
cast doubt about his personal judgment. He has not shown any efforts to address the
issues raised by his repeated access to prohibited adult sites at work. When interviewed
in October 2006, he claimed pornography was not a big interest of his, but his access to
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over 500 sexually explicit prohibited web addresses on his work computer suggests a
problem Applicant is unwilling to acknowledge or deal with. He rationalized his behavior
in his mind as long as the work was getting the work done. He has since apologized for
his “terrible mistake,” but missing from his apology (“The loss of my job, embarrassment
to myself and family, and subsequent three month period of unemployment taught me a
stern lesson.” Item 4), is any meaningful appreciation for the extent to which he violated
his fiduciary obligations. None of the mitigating conditions under AG ¶ 41 apply. His
Internet surfing, to include of prohibited adult sites, cannot reasonably be characterized
as minor and it was not done in the interest of organizational efficiency (see AG ¶
41(b)). AG ¶ 41(c) applies only to unintentional or inadvertent conduct. 
Guideline E—Personal Conduct
The security concern for personal conduct is set out in AG ¶ 15:
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.
Applicant’s knowing misuse of a government information resource system and
computer for nine months to a year in 2004 also raises security significant personal
conduct concerns of the type contemplated in AG ¶¶ 16(d)(3) (“a pattern of dishonesty
or rule violations”) and 16(d)(4) (“evidence of significant misuse of Government or other
employer’s time or resources”). Yet, since his misuse of the computer is explicitly
covered under AG ¶ 39 of Guideline M, supra, it does not fall squarely within the
concerns addressed in AG ¶ 16(d), which applies on its face to “credible adverse
information that is not explicitly covered under any other guideline and may not be
sufficient by itself for an adverse determination. . . .” The overall security concern under
AG ¶ 15 is clearly implicated, however.
Personal conduct concerns may also be raised where there is evidence of
“concealment of information about one’s conduct, that creates a vulnerability to
exploitation, manipulation, or duress, such as (1) engaging in activities which, if known,
may affect the person’s personal, professional, or community standing.” (AG ¶ 16(e)).
Unauthorized use of a computer involving access to pornography at work is information
that clearly could negatively affect his standing with his family and colleagues.
Applicant maintains he is not vulnerable to coercion, calling attention to the following
language in the investigator’s report (Item 6): “The investigation report of 11/1/06 stated
‘He has learned his lesson. His wife and boss know about the details of the termination.
This information could not be used for blackmail or coercion.’” When read in context, the
investigator was not stating her own conclusions as to Applicant’s potential vulnerability
but rather merely reporting what Applicant told her. The available record, which includes
the report of his interview, sheds no light on what Applicant told his spouse or his boss.
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His uncorroborated generalization that his spouse and supervisor know of the details of
his employment termination is insufficient to mitigate the vulnerability concerns under
AG ¶ 17(e) (“the individual has taken positive steps to reduce or eliminate vulnerability
to exploitation, manipulation, or duress”).
Applicant’s violations of the government’s policies concerning authorized use of
its information systems resources are not mitigated under AG ¶ 17(c) (“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”). Again, despite the
passage of time, it continues to raise doubts about his reliability, trustworthiness, and
judgment. His acknowledgment of the behavior satisfies only the first prong of AG ¶
17(d) (“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”). He spent a considerable amount of
work time in unsanctioned activity and has presented little to overcome the concerns.
Whole Person Concept
Under the whole person concept, the administrative judge must evaluate an
applicant’s eligibility for classified access 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) 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.
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for access to
classified information must be an overall commonsense judgment based upon careful
consideration of the guidelines and the whole person concept.
I have evaluated Applicant’s conduct under the whole person concept, applying
the conclusions set forth previously in this analysis. Applicant indicates he learned a
“stern lesson” from his mistake, and he acknowledged his unauthorized Internet access
when he was interviewed by a government investigator and when he answered the
SOR. Security clearance decisions are not intended to punish for past misconduct, but
Applicant presented little to show that he can be counted on to abide by the ethical and
fiduciary obligations of a security clearance.
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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 M: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
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ELIZABETH M. MATCHINSKI
Administrative Judge