DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 07-02238
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Department Counsel
For Applicant: Pro Se
May 27, 2009
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Decision
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LOKEY-ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on March 31, 2006.  On November 26, 2008, the Defense Office of Hearings
and Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and
Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a
Statement of Reasons (SOR) to the Applicant, which detailed the reasons why DOHA
could not make the preliminary affirmative finding under the Directive that it is clearly
consistent with the national interest to grant or continue a security clearance for the
Applicant and recommended referral to an Administrative Judge to determine whether a
clearance should be denied or revoked.
The Applicant responded to the SOR in writing on January 8, 2009, and
requested a hearing before a DOHA Administrative Judge.  This case was assigned to
the undersigned on January 30, 2009.  A notice of hearing was originally issued on
February 5, 2009, scheduling the hearing for February 27, 2009.  Due to difficulty with
the confirmation of the Government’s court reporting contract, the hearing was
continued.  A notice of hearing was issued again on March 11, 2009, scheduling the
hearing for April 10, 2009.  At the hearing the Government presented three exhibits
referred to as Government Exhibits 1 through 3.  The Applicant presented two exhibits,
referred to as Applicant’s Exhibits A and B.  He also testified on his own behalf.  The
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record remained open until close of business on April 17, 2009, to allow the Applicant
the opportunity to submit additional documentation.  Applicant requested a one week
extension until April 24, 2009, which was granted.  Applicant submitted one Post-
Hearing Exhibits, referred to as Applicant’s Post-Hearing Exhibit A, within the requested
time period.  The official transcript (Tr.) was received on April 20, 2009.
Findings of Fact
The Applicant is 51 years old and divorced.  He has a high school diploma and
one year of junior college.  He is employed by a defense contractor as a Micro-graphic
Computer Repair Technician, and is applying for a security clearance in connection with
his employment.
The Government opposes the Applicant's request for a security clearance, on the
basis of allegations set forth in the Statement of Reasons (SOR).  The following findings
of fact are entered as to each paragraph and guideline in the SOR:
Paragraph 1 (Guideline E - Personal Conduct).  The Government alleges in this
paragraph that the Applicant is ineligible for clearance because he engaged in conduct
involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply
with rules and regulations that raise questions abut his ability to protect classified
information.   
The Applicant admits to each of the allegations set forth in the SOR under this
guideline.  The Applicant has worked in the defense industry since August 1980, almost
twenty-nine years.  Over the years he has been promoted numerous times, and has
experienced a lay off and was called back.   He held a secret level security clearance
without interruption since 1985/86.  Other than the two incidents described below, he
has never committed any company violations or security violations.  
        
From July 2003 to October 2004, the Applicant was on lay off status with his
employer.  He was called back to work in October 2004.  He received a company credit
card in late 2004, early 2005.  Between April 24, 2005, and August 14, 2006, the
Applicant used the company credit card that was issued to him for exclusively business
purposes to make personal purchases in the amount of $13,710.88 in violation of
company policy.  He testified that he made a car payment, bought tires, got cash
advances and took his girlfriend on a weekend vacation to Hawaii.  (Tr. pp. 43-44).
During this time he was paying child support to his ex-wife, insurance and living
expenses, and did not have any extra money to do other things.  As a result of an
investigation into his misuse of his corporate card, he was suspended from work without
pay for ten work days.  (Government Exhibit 3).  
Applicant testified that he did not have a personal credit card at the time.  (Tr. p.
24).  He knew it was against company policy to use his company credit card for
personal purchases, but he did it anyway.  Applicant admitted his wrongdoing and within
a week, before any disciplinary action was taken by the company, he paid the debt off in
full.  Applicant states that he will never do it again and will no longer possess a
company credit card even if offered one.  (Tr. p. 49).  Applicant testified that he was
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informed by the company that after one year, without further violations, this corrective
action would be removed from his personnel record.  (Tr. pp. 40-41).  
  
In approximately December 2005, the Applicant spent approximately 69.2 hours
accessing personal and pornographic web-sites during business hours.  The Applicant
stated that between computer repair jobs, while at work, on his company computer, he
would check sport sites and at times he clicked on his e-mail sites that contained
pornographic material.  Each time, he tried to get out of the program, it failed to respond
and he had to turn his computer off to get everything to stop.  (Tr. p. 31).  Applicant
testified that the violation was discovered when his computer was monitored remotely
from another site.  
Applicant admitted the misconduct when confronted by the company investigator.
He stated that he understood at the time of the wrongdoing that his conduct was against
company policy.  As a result, he received a one week disciplinary layoff without pay.
(Government Exhibit 3).  Applicant states that he now only opens up company e-mail.
(Tr. p. 50).  Applicant testified that he was informed by the company that after one year,
without further violations, this corrective action would be removed from his personnel
record.  (Tr. p. 40-41).   
  
Applicant also testified that he would never jeopardize classified information
under any circumstances.  When offered a hypothetical by Department Counsel,
Applicant stated that even if a foreign power were trying to black mail him by eliciting
classified information from him in lieu of telling his children that he was on pornographic
sites at work.  (Tr. p. 37).
Letters of recommendation from the Applicant’s union representative, coworkers
and friends all attest to the Applicant’s trustworthiness and reliability.  Applicant is
considered to be a hardworking team player who is honest and dependable.  He is
recommended for a continued position of trust.  (Applicant’s Exhibit A).  Applicant has
received numerous appreciation awards and certificates of achievement and recognition
for his exceptional performance and contributions to the defense industry over the past
twenty-nine years.  (Applicant’s Exhibit B).
A letter dated April 14, 2009, from a project manager who has supervised the
Applicant, on several DoD programs,  stated that the Applicant “needed little oversight”.
He took the initiative to do the work, and each time, always achieved the best yield the
program had ever seen in its history.  (Applicant’s Post-Hearing Exhibit A).  
Policies
Security clearance decisions are not made in a vacuum.  Accordingly, the
Department of Defense, in Enclosure 2 of the 1992  Directive sets forth policy factors
and conditions that could raise or mitigate a security concern; which must be given
binding consideration in making security clearance determinations.  These factors
should be followed in every case according to the pertinent guidelines.  However, the
conditions are neither automatically determinative of the decision in any case, nor can
they supersede the Administrative Judge’s reliance on her own common sense.
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Because each security clearance case presents its own unique facts and
circumstances, it cannot be assumed that these factors exhaust the realm of human
experience, or apply equally in every case.  Based on the Findings of Fact set forth
above, the factors most applicable to the evaluation of this case are:
Guideline E (Personal Conduct)
15.  The Concern.  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.
Conditions that could raise a security concern:
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.  This includes but is not limited to
consideration of: (3) a pattern of dishonesty or rule violations; and (4) evidence of
significant misuse of Government or other employer’s time or resources;
16.(e) personal conduct, or 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, or (2) while in another country, engaging in any activity that is illegal in that
country or that is legal in that country but illegal in the United States may service as a
basis for exploitation or pressure by the foreign security or intelligence service or other
group.
  
Conditions that could mitigate security concerns:
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;
17(e)  the individual has taken positive steps to reduce or eliminate vulnerability
to exploitation, manipulation, or duress.
In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a. The nature, extent, and seriousness of the conduct
b. The circumstances surrounding the conduct, to include knowledgeable
participation
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 c. The frequency and recency of the conduct
d. The individual’s age and maturity at the time of the conduct
e. The extent to which participation is voluntary
f. The presence or absence of rehabilitation and other permanent behavior
changes
g. The motivation for the conduct 
h. The potential for pressure, coercion, exploitation or duress
i. The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to classified information.
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
eligible for a security clearance.  Eligibility for access to classified information is
predicted upon the individual meeting these personnel security guidelines.  The
adjudicative process is the careful weighing of a number of variables known as the
whole person concept.  Available, reliable information about the person, past and
present, favorable and unfavorable should be considered in reaching a determination. 
The Administrative Judge can draw only those inferences or conclusions that have
reasonable and logical basis in the evidence of record.  The Judge cannot draw
inferences or conclusions based on evidence which is speculative or conjectural in
nature.  Finally, as emphasized by President Eisenhower in Executive Order 10865,
“Any determination under this order . . .  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.”
The Government must make out a case under Guideline E (Personal Conduct
that establishes doubt about a person's judgment, reliability and trustworthiness.  While
a rational connection, or nexus, must be shown between Applicant's adverse conduct
and his ability to effectively safeguard classified information, with respect to sufficiency
of proof of a rational connection, objective or direct evidence is not required.
Then, the Applicant must remove that doubt with substantial evidence in
refutation, explanation, mitigation or extenuation, which demonstrates that the past
adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for
a security clearance.  The Government must be able to place a high degree of
confidence in a security clearance holder to abide by all security rules and regulations,
at all times and in all places.
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CONCLUSION
Having considered the evidence in light of the appropriate legal standards and
factors, and having assessed the Applicant's credibility based on the record, this
Administrative Judge concludes that the Government has established its case as to all
allegations in the SOR, and that Applicant's personal conduct has a direct and negative
impact on his suitability for access to classified information.  
The evidence shows that over the past twenty-nine years, the Applicant has
committed two violations of company policy and procedure.  In 2005-2006, he used his
company credit card for personal use, and in 2005, he accessed pornographic sites on
his company computer.  He received company disciplinary action for both violations.  He
realizes the seriousness of his misconduct and is extremely remorseful.  When the
violation was discovered, he immediately paid off the company credit card, and to avoid
any future problems, he refuses to possess one.  He no longer opens any e-mail other
than the company’s.  He states that he has learned a harsh lesson from this experience
and understands that the Government will not tolerate violations of company policy
while holding a security clearance. 
    
Under Guideline E, Disqualifying Conditions 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.  This includes but is not limited to consideration of: . . . (3) a pattern of
dishonesty or rule violations, (4) evidence of significant misuse of Government or other
employer’s time or resources and 16.(e) personal conduct, or 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, or (2) while in another
country, engaging in any activity that is illegal in that country or that is legal in that
country but illegal in the United States may service as a basis for exploitation or
pressure by the foreign security or intelligence service or other group apply.  
However, under the particular facts of this case, Mitigating Conditions 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 and, 17(e)  the
individual has taken positive steps to reduce or eliminate vulnerability to exploitation,
manipulation, or duress also applies.  The Applicant’s misconduct in 2005/2006 was
clearly an aberration from his normal, responsible pattern of behavior.  
I have also considered the “whole person concept” in evaluating the Applicant’s
eligibility for access to classified information.  His twenty-nine years of dedicated service
to the defense industry as well as his favourable references have also been considered.
Under the particular facts of this case, the totality of the conduct set forth under all of the
guidelines viewed as a whole, support a whole person assessment of good judgement,
trustworthiness, reliability, a willingness to comply with rules and regulations, and/or
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other characteristics indicating that the person may properly safeguard classified
information.
  
Considering all of the evidence presented, Applicant has mitigated the negative
effects of his company violations and the impact that they can have on his ability to
safeguard classified information.  On balance, it is concluded that the Applicant has
overcome the Government's case opposing his request for a security clearance.
Accordingly, the evidence supports a finding for the Applicant as to the factual and
conclusionary allegations expressed in Paragraph 1 of the SOR.    
FORMAL FINDINGS
Formal Findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: For the Applicant.
Subparagraph 1.a.: For the Applicant
Subparagraph 1.b.: For the Applicant
DECISION
In light of the circumstances presented by the record in this case, it is clearly
consistent with the national interests to grant or continue a security clearance for the
Applicant.
Darlene Lokey Anderson
Administrative Judge