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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------, ------- ------ )       ISCR Case No. 08-01670
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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WHITE, David M., Administrative Judge:
Applicant misused a government computer in 1998 to view pornography while on
active duty. He was fired while a probationary government employee in 2006 for alleged
computer misuse that was neither serious nor the actual reason. He fully mitigated
potential security concerns arising from his conduct. Based upon a thorough review of
the case file, pleadings, exhibits, and testimony, eligibility for access to classified
information is granted. 
Applicant submitted his Questionnaire for Sensitive Positions (SF-86), on August
27, 2007, and resubmitted a signed copy of this Electronic Questionnaires for
Investigative Processing (e-QIP) retained copy on June 10, 2008, when the original was
temporarily lost. On September 24, 2008, the Defense Office of Hearings and Appeals
(DOHA) issued a Statement of Reasons (SOR) to Applicant detailing security concerns
under Guidelines E, M, and D. 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
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adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and
effective within the Department of Defense (DoD) for SORs issued after September 1,
2006. 
Applicant acknowledged receipt of the SOR on October 1, 2008. DOHA received
his undated written answer to the SOR on October 20, 2008. In this answer, Applicant
requested that a determination be made without a hearing. On November 17, 2008,
Department Counsel requested a hearing before an administrative judge, pursuant to
Directive ¶ E3.1.7. DOHA assigned the case to me on November 21, 2008. 
DOHA issued a notice of hearing on December 2, 2008, and I convened the
hearing as scheduled on January 8, 2009. Department Counsel offered Government
Exhibits (GE) 1 through 4, which were admitted without objection. Applicant testified on
his own behalf. I granted Applicant’s request to leave the record open until January 22,
2009, to permit Applicant to obtain and submit some documents that he did not bring to
the hearing. This evidence was submitted on January 15, 2009, and admitted as AE A
without objection by Department Counsel. DOHA received the transcript of the hearing
(Tr.) on January 26, 2009.
Findings of Fact
Applicant is a 44-year-old employee of a federal contractor, where he has worked
for two years as an information technology customer service representative. He is
married, and has two children, ages 20 and 16. In his response to the SOR, he admitted
the truth of all the allegations except for the year he sought counseling in SOR ¶¶ 1.d
and 3.b. During the hearing, Department Counsel moved to amend the SOR to correct
the year alleged in these two paragraphs from “2000" to “1998.” Applicant had no
objection to this amendment, and the motion was granted. Applicant’s admissions are
incorporated into the following findings of fact.
Applicant enlisted in the Air Force in 1983, at age 18, and retired just over 20
years later as a master sergeant (E-7). He acquired a Secret clearance after his first
year of service, and a Top Secret clearance about two years after that. He worked in
reconnaissance imagery processing and visual information management, and
maintained this clearance successfully working with classified information throughout his
time in the service. He received Good Conduct Medals covering his entire period of
service, as well as numerous personal and service awards to include two Meritorious
Service Medals in 2001 and 2003. (GE 4; AE A at 1; Tr. at 34-38.)
During 1998, an officer detected Applicant viewing adult pornography on his
Government computer. He had done this three of four times previously, and realized
that he should not have done so. He was awarded a non-punitive letter of reprimand for
misusing the computer, and his performance report for that year was adversely
impacted. That report, however, noted that the administrative actions taken against him
had proven effective in changing his behavior. (AE A at 8-9.) His unit commander
nominated him for award of the Base NCO of the Quarter for his outstanding
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performance and contributions the quarter following that performance report. (AE A at
10.) His performance report for the next year contained the highest possible marks in
each category, and recommended him for immediate promotion. He was then promoted
to Master Sergeant effective January 1, 2001. (AE A at 11-12; GE 4; Tr. at 40-48.)
Applicant voluntarily sought counseling at the Air Force clinic because he was
concerned that he might have some compulsion or addiction that caused him to violate
computer-use rules by viewing pornography. After attending six or seven sessions,
Applicant and his counselor agreed that he was not addicted to pornography, but simply
needed to make better choices and resist temptation. He has since occasionally viewed
pornography, but never on a work computer or in any illegal manner. (Answer at 4; Tr.
at 41-42, 59.) 
About two years after his retirement from the Air Force, Applicant was hired to fill
a civil service position providing information technology and executive support on an Air
Force headquarters staff. Three months into that job, the commanding general issued
him a letter of appreciation for quickly returning their computer fleet to fully mission
capable status after more than a third of them crashed due to corrupted software. The
general selected him as Civilian Employee of the Quarter for the last quarter of 2005,
his fifth through seventh months on the job, for which he also received a $250 cash
award. He also received a 24-hour time-off award on May 25, 2006. (AE A at 3-7.) 
In March 2006, Applicant was in the back area of the command conference room
updating a security patch on the secure computer there. While waiting for that computer
to process the changes, he was looking at the MSN homepage on the unclassified
computer system. Under the “most frequent searches” heading, he saw a woman’s
name he did not recognize, so he opened the link. The web site that appeared showed
the woman, an actress, dressed in very scanty attire. Unbeknown to Applicant, the
unclassified computer was projecting onto the large-screen display in the conference
room, and a female co-worker who had come in saw the image of the actress. She told
Applicant about the improper projected image and that he shouldn’t do that. She also
apparently reported this to his active duty E-8 supervisor, with whom Applicant had a
personality conflict. This conflict arose because Applicant did not like or agree with his
supervisor’s leadership qualities, and did not conceal his opinions in that regard. (GE 3
at 3; Tr. at 31-33, 49-51.)
The supervisor seized Applicant’s government computer and had it searched. In
June 2006, two days before completing his one-year probationary period, the supervisor
terminated Applicant’s employment citing improper computer usage while employed to
act as the command computer security manager. Applicant admits that he had played
the pre-installed card game on the computer, had used it to check weather and surf
reports, and had used it to update his official Air Force personnel system resume - all
with either express or tacit permission from his supervisors. The weight of evidence
indicates that this termination was due to the fact that his supervisor disliked and
resented Applicant and could fire him without recourse as a probationary employee, and
not because Applicant violated standard computer-use policies or practices. Applicant
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further proved that his termination was not based on poor performance, since his
evaluations and awards reflect that he did an excellent job. He has maintained his
security clearance without incident throughout the past 25 years, and fully intends to
remain well within proper computer use policies in the future. (AE A; Tr. at 29-31, 51-53,
60-64.) Applicant was forthright and credible throughout his testimony.
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 used to evaluate
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 over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶¶
2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in
the context 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 “Any doubt concerning personnel being considered for access to classified
information will be resolved in favor of the 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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides that “Any determination under this order adverse to
an applicant shall be a determination in terms of the national interest and shall in no
sense be a determination as to the loyalty of the applicant concerned.” 
A person applying for access to classified information seeks to enter 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. 
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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.
Analysis
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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.
The following will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance eligibility:
(a) refusal, or failure without reasonable cause, to undergo or
cooperate with security processing, including but not limited to
meeting with a security investigator for subject interview,
completing security forms or releases, and cooperation with
medical or psychological evaluation; and,
(b) refusal to provide full, frank and truthful answers to lawful
questions of investigators, security officials, or other official
representatives in connection with a personnel security or
trustworthiness determination.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying (DCs). The Government’s allegations raise potential concerns under two of
these provisions:
(c) credible adverse information in several adjudicative issue areas that is
not sufficient for an adverse determination under any other single
guideline, but which, when considered as a whole, 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; and 
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
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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. 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:
(2) disruptive, violent, or other inappropriate behavior in the
workplace; 
(3) a pattern of dishonesty or rule violations; and,
(4) evidence of significant misuse of Government or other
employer's time or resources.
Applicant admitted improperly viewing pornography on a government computer
several times in 1998. After he was caught and administratively reprimanded for doing
so, he never repeated this conduct. He sought counseling to determine whether he
needed help to deal with some type of addiction, and ultimately determined that he had
no addiction and did not need further help. In June 2006, he was fired from his civilian
position with the Air Force for the stated reason that he misused his government
computer for non-governmental purposes. The Government established sufficient
evidence, in the form of Applicant’s own statements and admissions, to raise potential
security concerns under these two whole-person related disqualifying conditions. The
seriousness of those concerns, and the degree to which Applicant has mitigated them,
will be further analyzed under the whole-person analysis at the conclusion of this
decision.
AG ¶ 17 provides conditions that could mitigate security concerns (MCs).
Applicant provided evidence that supports mitigation under the following three
provisions:
(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;
(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; and
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(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress.
Applicant’s conduct which was clearly wrong occurred more than ten years ago,
and had no effect on continuation of his Top Secret clearance or work with highly
classified information. His counseling was voluntarily undertaken and successful, and he
never again accessed pornography on a government or work computer. He was
subsequently promoted, awarded two Meritorious Service Medals, and honorably
discharged upon retirement from the Air Force. 
The only subsequent incident of accessing inappropriate content on a
government computer was entirely accidental, in that he did not realize the image would
be either provocative or projected where it could be seen by others. His other arguably
non-official uses of his government computer while an Air Force civilian employee were
known to and approved by his supervisors. These incidents did not exceed typically
acceptable practices, or adversely affect his excellent work performance. The evidence
fully supports Applicant’s contention that he was fired at the end of his probationary
period due to a personality conflict with a supervisor whom he openly considered to be
a poor leader, and who used computer-use issues as a pretext for this action. 
Guideline M, Use of Information Technology Systems
AG ¶ 39 expresses the security concern pertaining to use of information
technology systems:
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.
AG ¶ 40 describes conditions that could raise a security concern and may be
disqualifying. The only DC supported by evidence in this case is, “(e) unauthorized use
of a government or other information technology system.” Applicant’s viewing of
pornography in 1998 was unauthorized, and he knew it. Viewing the web site showing a
scantily clad actress in 2006 was also unauthorized, but was a one-time and accidental
event. The evidence shows that the other alleged misuse of his government computer
did not constitute unauthorized use, was either expressly or tacitly approved by his
supervisors at the time it occurred, and was merely a pretext for terminating his
employment during probationary status due to a personality conflict. 
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AG ¶ 41 provides conditions that could mitigate security concerns:
(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;
(b) the misuse was minor and done only in the interest of organizational
efficiency and effectiveness, such as letting another person use one's
password or computer when no other timely alternative was readily
available; and,
(c) the conduct was unintentional or inadvertent and was followed by a
prompt, good-faith effort to correct the situation and by notification of
supervisor.
Applicant’s 1998 viewing of pornography is mitigated under AG ¶ 41(a) since it
was more than ten years ago, has not recurred, and no longer casts any doubt on his
reliability or judgment. The conference room incident is mitigated under AG ¶ 41(c),
since it was isolated and inadvertent, promptly corrected and addressed with his
supervisor. The other alleged instances of unauthorized non-official use are mitigated
under AG ¶ 41(b) since they fall within typically authorized unofficial use, and were
known to and approved of by supervisory personnel when taking place. 
Guideline D, Sexual Behavior
AG ¶ 12 expresses the security concern:
Sexual behavior that involves a criminal offense, indicates a personality or
emotional disorder, reflects lack of judgment or discretion, or which may
subject the individual to undue influence or coercion, exploitation, or
duress can raise questions about an individual's reliability, trustworthiness
and ability to protect classified information. No adverse inference
concerning the standards in this Guideline may be raised solely on the
basis of the sexual orientation of the individual.
AG ¶ 13 describes conditions that could raise a security concern and may be
disqualifying. The DC raised by the evidence in this case is, “(d) sexual behavior of a
public nature and/or that reflects lack of discretion or judgment.” Applicant’s use of his
government computer to view pornography during 1998 reflected a lack of discretion
and judgment. His subsequent counseling, however, revealed that he did not suffer from
any addiction to pornography or other personality or emotional disorder. 
AG ¶ 14 provides conditions that could mitigate security concerns. As discussed
above under other guidelines dealing with analogous concerns, Applicant proved
mitigation of security concerns stemming from that conduct under AG ¶ 14(b), “the
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sexual behavior happened so long ago, so infrequently, or under such unusual
circumstances, that it is unlikely to recur and does not cast doubt on the individual's
current reliability, trustworthiness, or good judgment.”
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) 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 a security
clearance must be an overall common sense 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’s conduct of potential
concern involved his brief misuse of a government computer in 1998 for viewing
pornography, seeking counseling for potential addiction thereto, and alleged subsequent
misuse of government computers in 2006. The 1998 misuse was wrongful, but brief and
ceased once he was caught and reprimanded for it. He sought counseling to help
ensure such conduct would not recur, and was determined to have no addiction or other
problem requiring ongoing assistance. He continued with highly classified work, and
was promoted and highly decorated during the remainder of his active duty career. His
2006 computer-related conduct was not shown to be knowingly wrongful or sufficiently
improper to reflect poor judgment or untrustworthiness. 
Applicant is fully mature, educated, and accountable for his conduct. His
performance appraisals and recognition awards reflect consistent outstanding
performance in areas requiring protection of classified and other sensitive information.
His entire adult life has been spent supporting and defending the interests of national
security, and he demonstrated credibility and integrity during his hearing. The evidence
demonstrated no vulnerability to pressure, coercion, exploitation or duress. He was fired
during his probationary Government employment due to a personality conflict with his
immediate supervisor, and not due to any legitimately actionable computer misuse or
poor work performance. 
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On balance, Applicant presented sufficient evidence to meet his burden of
persuasion to mitigate reliability and trustworthiness concerns arising from the
undisputed conduct that was alleged in the SOR and supported by his statements.
Overall, the record evidence leaves no doubt as to Applicant’s present eligibility and
suitability for a security clearance.
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: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Paragraph 2, Guideline M: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Paragraph 3, Guideline D: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance. Eligibility for access to classified information is granted.       
                                  
DAVID M. WHITE
Administrative Judge