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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 07-18525
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel    
For Applicant: B. Daniel Lynch, Esquire
August 25, 2009
Decision On Remand 
MOGUL, Martin H., Administrative Judge:
On July 24, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the security concerns under Guideline E for
Applicant. 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 responded to the SOR (RSOR) in writing on August 28, 2008, and
requested a hearing before an Administrative Judge (AJ). The case was assigned to AJ
Darlene D. Lokey Anderson on September 12, 2008, and a hearing was held on
November 6, 2008. The AJ issued a Decision on November 25, 2008, which found that
“it is not clearly consistent with the national interest to grant or continue a security
clearance for Applicant.” Applicant filed a timely appeal and the Appeal Board (AB)
issued its decision on February 18, 2009, which concluded that the case be Remanded
and assigned to a new AJ. The AB held that based on the “vigor and length with which
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the Administrative Judge questioned [Applicant] as well as her citation in the course of
that questioning to matters outside the record . . . A careful review of the transcript has
led the Board to conclude that it could cause a reasonable person to question the
Judge’s impartiality.” Finally there was an instruction from the AB to “treat all SOR
allegations as controverted.” 
The Remand was assigned to this AJ on March 9, 2009. DOHA issued a Notice
of the Remand Hearing on March 25, 2009, and I convened the hearing on April 6,
2009. The Government offered Exhibits 1 through 6, which were received without
objection. Applicant testified on his own behalf and two other witnesses testified on
behalf of Applicant. He submitted Exhibits A through F, which were entered into
evidence without objection. DOHA received the transcript of the hearing (Tr) on April 21,
2009. 
Findings of Fact
After a complete and thorough review of the evidence in the record, including
Applicant's Answer to the SOR, the admitted documents, and the testimony of Applicant
and his witnesses, and upon due consideration of that evidence, I make the following
findings of fact: 
Applicant is 30 years old. He is not married, and he has no children. He received
a Bachelor of Science degree in 2000. Applicant works for a defense contractor, and he
seeks a DoD security clearance in connection with his employment in the defense
sector.
 (Guideline E - Personal Conduct)
1.a. It is alleged that on or about February 16, 2006, Applicant received a written
warning from his employer for attempting to sponsor unauthorized persons in GTMO
(Guantanamo).
During his testimony, Applicant denied that he had attempted to sponsor an
unauthorized person in GTMO. He averred that he did make an oral inquiry on one
occasion of the potential of sponsoring the brother of a linguist acquaintance of
Applicant for a visit to the housing area of Applicant’s employer. Applicant was informed
that it would not be possible to authorize  this individual, whose brother worked for
another company, to enter their housing site. Applicant seemed to believe that this
individual should have been authorized, since he was a United States citizen, but it was
only because he was the brother of an employee of a rival company. However, in any
event,  according to Applicant’s quite credible testimony, once he was so informed, he
never made any other inquiry or attempt to have this individual gain access to this site
(Tr at 93-98).
Despite the fact that Applicant did receive a written warning from his supervisor
regarding this conduct (Exhibit 5), I do not find any other evidence to establish that
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Applicant’s oral inquiry actually violated any company rules or regulations, or in any way
could be considered a security violation.   
1.b.  It is alleged that in May 2004, Applicant received a verbal warning and
counseling form his employer for accessing inappropriate pornographic web sites on his
Government computer and for over reporting the hours that he purportedly worked. 
There are two concerns raised in this allegation, and they will be addressed
separately: 
At the hearing, Applicant denied, as he has continuously done, that he ever
accessed any pornographic web sites on any Government computers. Witnesses A,
who appeared on behalf of Applicant, testified that at the time in question, it was not
permissible to access pornographic sites. This witness, who is soon to be a First
Lieutenant in the United States Army reserve, worked as a military liaison with Applicant
in Guantanamo, on an almost daily basis in the same room. He reiterated that at the
time period in question, the Government had on its computers, a kind of fire wall, that
would block any pornographic web sites or any sites that if found objectionable, and it
would make a note of the account of the individual attempting to gain access to that site.
He also stated that, to his knowledge, he was not aware of Applicant ever attempting to
gain access to a pornographic site, nor had he ever heard from anyone else that
Applicant had tried to visit objectionable sites (Tr at 42-45).  
The only site that appears to have been of concern, and which Applicant
concedes that he used, was “Myspace.” However, Witness A also testified that at the
time they were at Guantanamo, social networking websites such as Myspace were
permitted by the Government (Tr at 43-44.)  While Exhibit 5 does show that Applicant
did receive a written warning from his supervisor regarding improper ADP usage, based
on the very credible and objective testimony of Witness A that pornographic websites
could not be accessed on Government computers, plus the consistent denial by
Applicant that he ever accessed pornographic sites, I do not see that any evidence has
been submitted to prove that Applicant ever accessed any pornographic sites on a
Government computer. 
The second concern addressed in this allegation concerns Applicant giving
incorrect information about the hours that he worked. Applicant testified that this
allegation only concerns one event occurring on April 12, 2004, when, at the time he
was allowed one hour for lunch, he allegedly took an extra half hour, which he did not
properly report on his timecard. 
It is Applicant’s contention that there was scheduled on April 12, 2004, a sale of
surplus furniture on the base. He stated that he received authorization from the Navy
non-commissioned officer to attend the sale, and since he was going to be back one
half hour later than planned because of the crowd attending the sale, he also called to
report his delay to the Navy non-commissioned officer before his return. He also stated
that he followed the proper procedure, and there was no one from his company to
whom he was authorized to report (Tr at 113-117).
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During Witness A’s testimony, he also averred that for the approximately six
months that he worked with Applicant, he never was aware of Applicant failing to report
to duty on time or failing to complete his shift in a proper manner (Tr at 50-52).
Applicant’s reporting back to work one half hour late, on one occasion, certainly
does not show a failure to follow rules and regulations.
1.c. It is alleged that on or about January 5, 2005, Applicant received a written
warning from his employer for losing two security badges (The date listed on the SOR
was December 2004, but upon a motion by Department Counsel, based upon evidence
introduced at the hearing (Exhibit 3), and with no objection from Applicant’s counsel, the
date was amended to January 5, 2005.) 
At the hearing, Applicant conceded that he lost two identification badges on one
occasion, on or about December 12, 2004. Exhibit E includes the January 5, 2005
written warning, which states that Applicant was formally counseled for the loss of his
identification badges. There is also included an email that shows the badges were
ultimately found and recovered without ever being misused. 
Mitigation
Applicant offered into evidence seven new character letters from individuals who
know or have known him in his professional or private life (Exhibit A), as well as five
character letters that had previously been offered into evidence for the first hearing
(Exhibit B). They were all remarkably laudatory in describing  Applicant’s high integrity,
reliability, and good judgement. A Lieutenant Commander from the U.S. Navy, who was
Applicant’s Officer-in-Charge, described Applicant in Exhibit B as “Dependable and
committed, he could be counted on to work beyond his scheduled hours or on
designated days off without complaint or questions . . . a man of the highest caliber and
integrity.”
He submitted three Certificates of Appreciation that he received for his
meritorious service (Exhibit C). His performance evaluations for September 2004 and
April 2005 were also offered (Exhibit D). The 2005 review stated, “Linguist
demonstrates high level of professionalism and self-motivation. Linguist is considered
very dependable and provides quality service. Supports Cell-Block as night shift
dispatcher. Most reliable night shift linguist.” 
Finally, Witness B, who is a personal friend of Applicant, even though there is a
32 year difference in their ages, testified on his behalf. He has known Applicant for 10
years, and, he stated that Applicant “is one of the finest young men I’ve ever met . . . He
is a person of character . . . I would trust him with my family and my life” (Tr at 78-81).
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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 over-arching
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 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).  
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Analysis
Guideline E - Personal Conduct 
With respect to Guideline E, the evidence has failed to establish that Applicant
committed any conduct that could be considered to involve questionable judgement,
lack of candor, dishonesty, or unwillingness to comply with rules and regulations. W hi le
Applicant’s loss of his security badges on one occasion in December 2004, had the
potential to be an issue of concern, no evidence was introduced to show that this
negligent conduct occurred more than one time or more recently that December 2004.
Therefore, I do not find that any of his conduct as alleged by the Government
should be considered a security concern under Guideline E. In reviewing the
Disqualifying Conditions (DCs) under Guideline E, I conclude that no DCs apply.  I
resolve Guideline E for Applicant.
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 commonsense judgment based upon careful
consideration of the guidelines and the whole person concept.       
I have considered the potentially disqualifying and mitigating conditions under
Guideline E, in light of all the facts and circumstances surrounding this case. Based on
all of the reasons cited above, including Applicant’s strong and credible testimony,
together with his positive employment evaluations, and the many extremely laudatory
letters of recommendation and the positive testimony from the two witnesses, I find that
the record evidence leaves me without questions or doubts as to Applicant’s eligibility
and suitability for a security clearance under the whole person concept. For all these
reasons, I conclude Applicant mitigated the security concerns in the SOR. 
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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 E: FOR APPLICANT
Subparagraph 1.a. -1.c.: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
Martin H. Mogul
Administrative Judge