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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 07-03531
SSN: ------------------ )
)
Applicant for Security Clearance )
Appearances
For Government: Eric H. Borgstrom, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant resigned from federal civilian employment in February 2005 following a
history of inappropriate access of pornographic images using his government computer.
He shows little remorse and has not been completely candid about his misconduct.
Clearance is denied.
Statement of the Case
Applicant submitted his security clearance application (SF 86) on January 23,
2003. On December 17, 2008, the Defense Office of Hearings and Appeals (DOHA)
issued to Applicant a statement of reasons (SOR) detailing the security concerns under
Guideline M that provided the basis for its preliminary decision to deny him a security
clearance and refer the matter to an administrative judge. 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
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on December 29, 2005, and effective within the Department of Defense as of
September 1, 2006. 
 
Applicant submitted an undated response to the SOR that was received by
DOHA on February 18, 2009. He requested a hearing, and on April 2, 2009, the case
was assigned to me to determine whether it is clearly consistent with the national
interest to grant or continue a security clearance for Applicant. On May 8, 2009, I
scheduled a hearing for May 29, 2009.
I convened the hearing on May 29, 2009. Before the introduction of any
evidence, the SOR was amended at the request of the government with no objection,
see infra. The government submitted four exhibits (Ex. 1-4), Exhibits 1-3 were admitted
without any objections. Applicant questioned the relevance of some information in
Exhibit 4. Those statements within Exhibit 4 were stricken with the agreement of
Department Counsel and the document was admitted. Applicant also testified, as
reflected in a transcript (Tr.) received on June 8, 2009. For the reasons discussed
below, eligibility for access to classified information is denied.
Procedural and Evidentiary Rulings
At the hearing, the government moved to amend the SOR to add a new
paragraph 2 alleging a security concern under Guideline E:
You falsified material facts during a February 1, 2007, interview with an
investigator from the U.S. Office of Personnel Management when you
denied having ever viewed pornography on the Internet.
On March 30, 2009, Applicant was furnished a copy of the motion in writing with those
documents the government intended to offer into evidence at his upcoming hearing.
Applicant did not object to the amendment. The motion was granted, and Applicant
denied the allegation.
Findings of Fact
In the SOR as amended, DOHA alleged under Guideline M, use of information
technology systems, that Applicant’s employer seized his government computer in or
about January 2005 to conduct a forensic investigation for unauthorized or inappropriate
material (SOR ¶ 1.a); that the investigation revealed that he had accessed pornographic
websites on the Internet (SOR ¶ 1.b); that he had used his government computer to
access pornographic websites after he had completed mandatory computer training in
November 2004 and been warned that such use was unauthorized (SOR ¶ 1.c); and
that he had been verbally counseled in about 2002 for unauthorized use of his
government computer (SOR ¶ 1.d). Under Guideline E, Applicant was alleged to have
falsely denied during his February 1, 2007, subject interview that he had ever viewed
pornography on the Internet (SOR ¶ 2.a). Applicant admitted the Guideline M
allegations with explanations. Applicant was given an opportunity to respond to the
Applicant admitted that by deleting a file in that manner, it might still be on the computer’s hard drive1
but that it would eventually be overwritten (Tr. 66).
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Guideline E allegation before the introduction of any evidence. He denied any
intentional falsification. After consideration of the pleadings, exhibits, and transcript, I
make the following findings of fact:
Applicant is a 37-year-old integration and test engineer who has worked for his
current employer, a defense contractor, since mid-2005 (Tr. 40). He seeks to retain a
top secret security clearance that was transferred to his work for his current employer
(Tr. 94, 115).
Applicant earned his bachelor of science degree in electrical engineering in May
1994 (Exs. 1, 2). In August 1994, he began working as a civilian project engineer for the
federal government (Ex. 1, Tr. 37-39). He was granted a secret-level security clearance
for his duties in November 1994 (Ex. 2), and it was eventually upgraded to top secret
(Tr. 115). On December 18, 1997, he applied for access to sensitive compartmented
information (SCI) for his work with sensitive military programs (Ex. 2), and that access
was granted in March 1998 (Ex. 1, Tr. 40-41).
In 2002, Applicant was verbally counseled by his supervisor for viewing
inappropriate material on his work computer. Applicant cannot now recall whether the
computer was provided by the government or by a contractor for the government.  The
connection was provided by the government (Tr. 44). When asked at his hearing
whether he was viewing pornography on the Internet, Applicant responded, “It’s entirely
possible.” (Tr. 44). Concerning whether he searched for images or opened electronic
mail messages, Applicant indicated that “everyone had come in contact with adult
oriented material at some time.” (Tr. 47). Applicant testified that there were no specific
policies about Internet use at that time (“things were pretty loose”), although they were
not allowed to hack into a machine or download illegal material (Tr. 45). Applicant
denies he downloaded inappropriate material onto his work computer at that time, or
that he accessed child pornography (Tr. 49). No evidence was presented to the
contrary.
In or before 2004, Applicant switched from a desktop to a laptop computer at
work because of frequent travel. He kept the laptop at the office connected to a docking
station when he was not on travel (Tr. 54). While on temporary duty overseas for his
employer in the summer of 2004, Applicant downloaded a large batch of computer files
from an external hard drive onto his government-provided laptop computer. The files,
which had generic names or titles (Tr. 62), contained not only Hollywood movies but
also home videos containing adult content. Applicant obtained the hard drive from a
sailor at work and he was unaware of specific contents when he loaded it onto his work
computer (Tr. 60-62). As Applicant went through the files, he noticed that some of them
were adult oriented in nature (Tr. 58, 61), and he deleted them by dragging them into
the trash folder and emptying the folder (Ex. 3, Tr. 58).  Applicant testified that he1
informed information technology employees on his return from temporary duty that he
The report of the forensics investigation was not submitted into evidence. In an issue summary of2
August 23, 2005, a military adjudicator referred to the security access eligibility report (SAER) from Applicant’s
then employer which indicated that Applicant had been surfing the Internet accessing pornographic web sites
and that he had been verbally counseled for the same problem about three years earlier (Ex. 4). The SAER
was also not available for my review, but there is no apparent reason to doubt the accuracy of the
adjudicator’s summary of the SAER.
Applicant initially claimed that he knew nothing at that time other than that the investigation was3
ongoing (Tr. 65), but he later acknowledged that his supervisor had told him that inappropriate adult material
had been found on his laptop’s hard drive (Ex. 3, Tr. 66). He later stated that the unauthorized access
concerned one specific day when he was on annual leave (Tr. 90). 
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had deleted the material and that he had exercised “due diligence in the circumstance”
(Tr. 58).
In November 2004, Applicant completed annual mandatory computer security
training that warned against unauthorized use of government computer systems (Ex. 4).
In about late December 2004, Applicant’s work laptop computer was seized by security
personnel for a forensic investigation of possible inappropriate access. Applicant was
given a new computer and allowed to continue working. Over the next few weeks,
Applicant had been informed by his supervisor that inappropriate material had been
found on his work computer (Ex. 3). The investigation of the seized laptop revealed that
Applicant had been accessing pornographic websites via the Internet on his work laptop
computer (Ex. 4).  At his May 29, 2009, hearing, Applicant would neither confirm nor2
deny whether he had accessed Internet websites containing pornography in late 2004:
I may have, I may not have. One of the habits I had was in when I left my
computer at work, was often my web browser was often not password
protected, so I left my computer unattended. So I may have looked at
something I shouldn’t have or someone may have gotten into my
computer at my expense (Tr. 53-54).
Applicant worked in a non secured area, although the building in which his cubicle was
located had “swipe access” (Tr. 55).  Applicant testified unrebutted by the government
that his computer stayed logged on even when he was away from his desk (Tr. 56), but
no evidence was presented to confirm that someone else accessed pornography using
the laptop assigned to him.
In January 2005, the military command issued a security access eligibility report
(SAER) to the service’s adjudication component recommending that Applicant be found
ineligible for continued SCI access because of his inappropriate access of pornographic
web sites using his government computer. On February 2, 2005, Applicant resigned
from his government position and his former employer forwarded the SAER to the
service’s adjudication component (Ex. 4). Applicant was aware at the time that
inappropriate adult material had been found on his laptop (Ex. 3, Tr. 65),  but there is no3
evidence that he knew the SAER had been submitted.
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Applicant worked for a company for only a couple of months before going to work
for his present employer in mid-2005. On February 1, 2007, Applicant was interviewed
by a government investigator about his possible misuse of a government computer
system. Applicant explained that he had downloaded files onto his work computer while
on temporary duty overseas in the summer of 2004 that he thought contained “regular
first-run movies” but he discovered included home videos with adult content. Applicant
acknowledged that his laptop had been seized by security officials when he was at work
“in late December 2005" [sic] and that over the next several weeks, he learned from his
supervisor that security had found inappropriate adult material on the hard drive. He
indicated that he resigned his federal employment voluntarily and not under any threat
of discipline or termination. Applicant averred that he had told his supervisors at his
subsequent employment (which he held for only a couple months, Tr. 38) about the
incident. He denied ever introducing any unauthorized hardware, software or media into
any information system, or that he had ever viewed pornography online (Ex. 3).
Applicant denies accessing pornography on the Internet at work since
“sometime before 2005" (Tr. 69, 81). Applicant claims to have no recall of any direct
instance of using a government computer to access a pornographic website after 2002
(“I mean I was, you know, after I had been counseled by that, I was pretty much scared
straight.” Tr. 81-82). He accessed pornographic websites at home within a week or two
of his hearing in May 2009 (Tr. 69).
Applicant earned his master’s degree in systems engineering in May 2009 (Tr.
36) while continuing to work for his present employer.
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 commonsense 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
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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
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 about the 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.
Applicant improperly accessed pornography at work in 2002, for which he was
counseled by his supervisor. Although not alleged as a security concern, Applicant
downloaded a large batch of files, some containing adult images, onto his government
laptop computer in the summer of 2004. His assertion that he was unaware of the adult
content is difficult to accept, given his past history of viewing inappropriate adult
material at work. Then in about early January 2005, he was found to have improperly
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accessed pornography via the Internet on his work laptop computer. He testified that his
employer might have found “some remnants of stuff that [he] had deleted a long time
ago” (Tr. 66); that he might have had some “risque material” on there, which “if [he]
were to really speculate, there may have been a picture or two of a girl in a bikini on a
car” (Tr. 68).  But neither circumstance gets to the root of his misconduct, which was
inappropriate website access, possibly discovered initially through monitoring, whether
routine or targeted, of Internet connectivity. Even assuming that Applicant left his
computer logged on when unattended (Tr. 85), there is no evidence to substantiate his
assertion that someone else may have used his computer to gain unauthorized access
to pornography at work. 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 mid-2005. Yet, I am unable to fully apply 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.” Applicant testified that after
he was counseled about using a government computer to access a pornographic
website in 2002, he was “pretty much scared straight.” (Tr. 81-82). But the results of the
forensic investigation of his work computer in late 2004 show this was not the case.
Considerable judgment concerns persist because of his unwillingness to accept
responsibility for his misuse of the government computer. Concerning his access to
pornography through his work computer in and before 2002, Applicant blamed the lack
of specific prohibitions (“I may have but then again, there were certainly times in my
history, employment history, where that wasn’t necessarily against the rules because
there weren’t any.” Tr. 48). When asked whether he accessed pornography at work in
2004, Applicant responded, “I may have, I may not have.” (Tr. 53). Applicant may not
now be able to recall each instance, but he certainly knew whether or not he had
accessed adult material on his work computer. His credibility is undermined by such
equivocation, and by his suggestion that if he accessed pornography, it was
unintentional:
I clearly know the difference between a classified system and an
unclassified system, the data access and work-related activities, the two
have never mingled. This was an unclassified system, an unclassified
network with no real firewall protection whatsoever, so there were, may
have been, I should say, instances where adult oriented material may
have been viewed unintentionally. I’m not really going to say that in my
activities but certainly it’s certainly possible (Tr. 86).
Applicant had been counseled in the past about viewing adult oriented content on his
work computer, and he had recently completed training that advised against
inappropriate use of the work computer. Applicant knew or should have known to use
his government computer for official purposes, and his claim of inadvertent access is
not persuasive. AG ¶ 41(c), “the conduct was unintentional or inadvertent and was
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followed by a prompt, good-faith effort to correct the situation and by notification of
supervisor,” does not apply.
Guideline E—Personal Conduct
The security concern related to the guideline 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.
When Applicant was interviewed on February 1, 2007, about possible misuse of
a government computer system, he told the government investigator that he had
downloaded batch files while on temporary duty in the summer of 2004 that
unbeknownst to him contained files with adult images. As for the subsequent seizure of
his computer, Applicant explained that he learned from his supervisor that inappropriate
material had been found on his hard drive. After he explained what had happened while
he was on temporary duty that summer, he heard nothing more about it and was not
disciplined. He denied any intentional violation of any procedures regarding the use of
computer systems, any introduction of unauthorized hardware, software, or media, into
any information technology systems, or that he ever viewed pornography online. His
denial of ever having viewed adult-oriented material via the Internet was false, and
formed the basis for the government’s recent amendment to the SOR. Applicant
maintains that he understood the context of the question to be limited to whether he had
viewed adult material at his present place of employment:
The investigator did not ask me any questions regarding my Internet
access at [government employer] and there are two reasons for that,
either a: [government employer] had said so and he felt that that [sic] was
not pertinent to his investigation or [government employer] themselves did
not say so and did not inform the investigator and he didn’t talk about that.
So as we got later on in the interview and the investigation, we talked
more about present tense circumstances, so I thought the question was in
relation to my current employment with [company X], which had been
several years in.(Tr. 75).
As discussed under Guideline M, supra, there is no evidence that Applicant ever
accessed pornography at work since he started his present job in mid-2005. But while
the investigator’s report does not contain the specific questions asked of Applicant, it
includes unequivocal denials by Applicant concerning whether he had ever given
anyone unauthorized access, ever introduced any unauthorized hardware, software, or
media into any information technology system, or ever viewed pornography online.
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Applicant confirmed the accuracy of the investigator’s report of his interview, and in that
report it states, “HE HAS NEVER VIEWED PORNOGRAPHY ONLINE.” No one reading
the report of the interview would have any reason to know that Applicant’s misuse of a
government computer involved other than the inadvertent downloading of adult material
while he was on temporary duty in 2004. His claim that it was a good faith mistake
related to the scope of the inquiry is implausible, particularly in light of the fact that he
had been counseled for inappropriate access in 2002. A finding of intentional
concealment is reasonable based on the investigator’s report, Applicant’s suspect
credibility regarding the issue of access to Internet pornography, and his confirmation of
the accuracy of the investigator’s report in August 2007. AG ¶ 16(a), “deliberate
omission, concealment, or falsification of relevant facts from any personnel security
questionnaire, personal history statement, or similar form used to conduct
investigations, determine employment qualifications, award benefits or status,
determine security clearance eligibility or trustworthiness, or award fiduciary
responsibilities,” applies.
Applicant’s misuse of a government information system raises judgment and
reliability concerns (see AG ¶ 15) and is a “significant misuse of Government or other
employer’s time or resources” (see AG ¶ 16(d)(4), “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: (4) evidence of
significant misuse of Government or other employer’s time or resources.”). However, it
was not alleged under Guideline E, and AG ¶ 16(d)(4) would not apply since the misuse
of a government computer system is explicitly covered under ¶ 39, infra.
Applicant’s failure to be up-front about his knowing misuse of the government-
owned information system is not mitigated under AG ¶ 17(a), which requires that the
effort at rectification be prompt, in good faith, and before confrontation (“the individual
made prompt, good-faith efforts to correct the omission, concealment, or falsification
before being confronted with the facts”). Applicant’s employer, then the federal
government, did not learn of Applicant’s inappropriate web access from him. Applicant
had the opportunity to candidly address this during his interview and instead denied he
had ever accessed pornography online. At his hearing in late May 2009, he testified
equivocally about whether he had viewed inappropriate adult material on his
government computer. Even though more than four years have passed since
Applicant’s unauthorized use of a government information technology system, his
violation of his fiduciary obligation of complete candor is recent and serious. 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,” is not
pertinent.  At this point, the government is not yet fully aware of the circumstances or
extent of his misuse of the government information system. He has shown little to no
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appreciation for the seriousness of his trust violations, so 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,” also does not apply.
Whole-Person Concept
Under the whole-person concept, the administrative judge must evaluate
Applicant’s eligibility for a security clearance by considering the totality of his conduct
and all the circumstances in light of 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 commonsense judgment based upon careful consideration
of the guidelines and the whole person concept. 
Applicant has raised considerable concerns about his judgment, reliability, and
trustworthiness through his misuse of a government information technology system from
at least 2002 to late 2004, and by dodging the obligation of full candor required of him
by virtue of his top secret clearance. He has shown some corrective action in that he
has not used a computer to access a pornographic website at work in more than four
years, but it is not enough to fully mitigate the security concerns. Applicant has not
always been the “good steward” (Tr. 86) of the government’s trust. He has yet to
understand the security implications of, and take responsibility for, his repeated misuse
of a government information technology system.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the
amended 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
SOR ¶¶ 1.a and 1.b pertain to the same conduct. The results of the investigation are reported in SOR4
¶ 1.b and do not represent conduct of additional security concern.
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Subparagraph 1.b: Against Applicant4
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Conclusion
In light of 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.
ELIZABETH M. MATCHINSKI
Administrative Judge