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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------------- )       ISCR Case No. 07-16355
SSN: -----------           )
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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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CURRY, Marc E., Administrative Judge:
Over the years, Applicant engaged in a number of questionable activities,
including surfing the Internet for pornography on his work computer and falsifying the
amount of time worked on a government contract. This raises security concerns that he
failed to mitigate. Clearance is denied. 
Statement of the Case
On March 11, 2009, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline
E, Personal Conduct, and Guideline M, Use of Information Technology. 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).
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Applicant answered the SOR on April 7, 2009, admitting the allegations set forth
in SOR subparagraphs 1.a, 1.b, 1.e, and 1.g, and denying the remainder. Also, he
requested an administrative determination instead of a hearing. Applicant filed a
supplemental answer on May 8, 2009. On January 4, 2010, Department Counsel
prepared a File of Relevant Material (FORM). Applicant received the file on February 2,
2010, and provided a three-page reply on March 3, 2010. On April 12, 2010, the case
was assigned to me.
Findings of Fact
Applicant is a 43-year-old married man with two teenage children. He earned a
bachelor of science degree in 1989 and has been working as an engineer for the same
company since 1998. 
In 1989, Applicant’s car was burglarized. Applicant filed an insurance claim to
receive cash reimbursement for several personal belongings that were stolen. His
father, who was the insurance policy holder, told him to list personal items on the claim
that were not actually in the car when the burglary occurred. Applicant complied, and
the insurance company ultimately paid his father approximately $1,800 more than he
would have collected had Applicant filed an accurate claim. Because Applicant was not
the insurance policy holder, he did not receive any of the money from the claim. (Item 8
at 3)
In 1997, Applicant, while backing his car out of a parking space, struck the
bumper of another parked car, causing what he estimated to be approximately $1,500
of damage to the other car. The car was not occupied. Applicant left the scene of the
accident without leaving any contact information with the car owner. (Item 8 at 4) 
In 2001, Applicant, while backing his car out of a parking space, struck the
bumper of another car. Although he may have possibly scratched the other car’s
bumper, Applicant drove away without either checking for damage to the car or leaving
any contact information. (Id.)
Between 1998 and 2006, Applicant spent approximately 10 to 20 minutes each
day viewing pornography on his company-issued computer. Company policy prohibited
employees from uploading, downloading, creating, distributing or otherwise transmitting
sexually explicit materials. (Item 10 at 6) In 2003, Applicant signed a statement
certifying that he had read this policy and understood it. (Id. at 2) 
From 2003 to 2006, Applicant worked on a government contract. During this
time, he sometimes billed the government agency for time he spent  “goof[ing] off with
coworkers, surfing the Internet, and playing video games” instead of working on the
contract. (Item 7 at 2)  Some of the time, Applicant inappropriately billed to the
government contract time he spent looking at pornography on the company-issued
computer. (Item 7 at 3) 
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The SOR alleges that Applicant overbilled the Government $50,000 in this
manner. Applicant admits he had frequent periods of down time, but contends he never
overbilled the Government. Specifically, he asserts that his maintenance of the
Government agency’s information technology system sometimes involved menial tasks
requiring minimal effort. Consequently, Applicant had frequent periods of “down time.”
(Item 6 at 3) The periods when he was entertaining himself instead of working on the
project occurred during these periods. He would always “make up” the time by working
extra hours. (Id.; Item 2 at 2) 
The basis of the Government’s contention that Applicant overbilled a government
contract $50,000 derives from an interview that a polygrapher conducted with the
Applicant. (Item 9) Applicant admits telling the polygrapher that he goofed off on the job
“a couple of hours a week,” but contends that the polygrapher erroneously inferred that
“a couple of hours a week” for the length of the contract totalled 20 hours a week, each
week for eight years. (Item 6 at 3) Also, the report of information that the polygrapher
prepared omitted Applicant’s contention that he always made up the time by working
extra hours. (Item 6)
In the 12 years Applicant has worked for his employer, his charges to various
contracts have never been questioned. (Item 3 at 2) I find that Applicant engaged in
some overbilling, but that it was less than the Government alleged. The exact amount
overbilled is inconclusive.
Over the years, Applicant has occasionally driven his car after drinking too much
alcohol. (Item 9 at 3) The last time he drank too much alcohol before driving was in
2006. He has neither been stopped nor arrested for drunk driving. (Id.) 
Another Government agency conducted an investigation into Applicant’s conduct
in 2006. It denied Applicant access to Sensitive Compartmented Information (SCI) in
2006.
Policies
The adjudicative guidelines list potentially disqualifying conditions and mitigating
conditions that 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, they are applied together with the factors listed in the
adjudicative process. According to AG ¶ 2(c), the administrative judge must consider all
available, reliable information about the person, past and present, favorable and
unfavorable, in making a decision. This process involves the scrutiny of the following
variables :
(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
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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.
This process of considering these variables when evaluating an applicant’s security-
clearance worthiness is known as the “whole-person concept.”
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. 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 in seeking a favorable security decision. 
Analysis
Guideline E, Personal Conduct
Under this guideline, “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.” (AG ¶ 15) Applicant has engaged in several episodes of misconduct
including time card fraud, viewing pornography on a work-issued computer, and driving
while under the influence of alcohol. AG ¶ 16(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,” applies. 
In assessing the seriousness of Applicant’s conduct, I did not assign as much
weight to the 1989 false insurance claim allegation, set forth in SOR subparagraph 1.a,
as I did to the other allegations. Applicant was 23 years old at the time and listed under
his father’s policy. Also, he falsified the claim based upon his father’s instruction, and
did not receive any money from filing the false claim. 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,” applies to SOR
subparagraph 1.a.
None of the mitigating conditions apply to Applicant’s other misconduct. He did
not overbill the Government as much money as the SOR alleged. However, his
contention that he engaged in no overbilling is not plausible given his history of
dishonesty demonstrated by leaving the scene of two accidents between 1997 and
2001. 
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Applicant has not engaged in any episodes of misconduct in four years. The
passage of time is outweighed by the severity of the conduct. I was particularly troubled
by the work-related nature of some of his misconduct, particularly the Government
contract fraud.  The significance of this transgression was not lessened by the fact that
he did not defraud the Government of as much money as the SOR alleged. Applicant
failed to mitigate the personal conduct security concern.
Guideline M, Use of Information Technology Systems
Applicant viewed pornography on a work-issued computer approximately ten
minutes per day from 1998 to 2006. From 2003 to 2006, he engaged in this activity
knowing that it was against company policy. This conduct triggers the concern listed
under Guideline M, as follows:
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.
In particular, the disqualifying condition listed in AG ¶ 40(e), “unauthorized use of a
government or other information technology system,” is applicable.
Applicant has not engaged in this conduct in four years. Given this passage of
time, I conclude that AG ¶ 41(a), “so much time has elapsed since the behavior
happened . . . that it is unlikely to recur and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment” applies.
Applicant’s misuse of information technology, when considered alone, no longer
generates a security concern under Guideline M. However, this does not lessen the
significance of Applicant’s computer-related misconduct when considered together with
his other personal misconduct, as evaluated in the Personal Conduct section, above. 
Whole-Person Concept
I have considered the whole-person factors listed at AG ¶ 2(a) in my analysis of
the relevant adjudicative guidelines. My conclusion that Applicant has not mitigated the
security concerns remains unchanged. 
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: AGAINST APPLICANT
Subparagraph 1.a: For Applicant
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Subparagraphs 1.b - 1.g: Against Applicant
Paragraph 2, Guideline M: FOR APPLICANT
Subparagraph 2.a: For 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.
                                             
MARC E. CURRY
Administrative Judge