1
 
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-08632
)
)
Applicant for Security Clearance )
Appearances
For Government: Richard Stevens, Esquire, Department Counsel
For Applicant: Pro se  
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
After a review of the pleadings, exhibits, and testimony, questions or doubts as to
Applicant’s eligibility and suitability for a security clearance remain, as he has not
mitigated the Government’s security concerns. Applicant’s eligibility for access to
classified information is denied.
Applicant signed an Electronic Questionnaire for Investigations Processing (e-
QIP) version of a security clearance application (SF-86) on August 10, 2007. The
Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of
Reasons (SOR) on July 30, 2010, detailing security concerns under Guideline E
(Personal Conduct), Guideline M (Use of Information Technology Systems), and
Guideline K (Handling Protected Information), that provided the basis for its preliminary
decision to deny him a security clearance. 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
AE F and AE G are letters of congratulations from 2005. AE H contains Applicant’s awards from 2005 and1
2006, while working overseas in or near a war zone. AE I contains information on a communications system
conceived by the Applicant and in use by the military.
W hen  SOR allegations are controverted, the Government bears the burden of producing evidence sufficient2
to prove controverted allegations. Directive, ¶ E3.1.14. “That burden has two components. First, the
government must establish by substantial evidence that the facts and events alleged in the SOR indeed took
place. Second, the government must establish a nexus between the existence of the established facts and
events and a legitimate security concern.” See ISCR Case No. 07-18525 at 4 (App. Bd. Feb. 18, 2009),
(concurring and dissenting, in part) (citations omitted). The guidelines presume a nexus or rational connection
between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See
ISCR Case No. 08-06605 at 3 (App. Bd. Feb. 4, 2010); ISCR Case No. 08-07290 at 2 (App. Bd. Nov. 17,
2009).
2
Adjudicative Guidelines For Determining Eligibility for Access to Classified Information
(AG) implemented on September 1, 2006. 
 
Applicant acknowledged receipt of the SOR on August 11, 2010. He answered
the SOR in writing on August 25, 2010. Applicant requested a decision on the record.
However, pursuant to Paragraph E3.1.7. of the Additional Procedural Guidance of
Enclosure 3 of the Directive, Department Counsel requested a hearing before an
administrative judge on September 28, 2010. (Hearing Exhibit 1) Department Counsel
was prepared to proceed on October 28, 2010, and I received the case assignment on
November 3, 2010. DOHA issued a notice of hearing on November 12, 2010, and I
convened the hearing as scheduled on December 16, 2010. The Government offered
exhibits marked as GE 1 through 14, which were admitted into evidence without
objection. Applicant testified and submitted exhibits marked as AE A through E, which
were admitted into evidence without objection. I held the record open until December
23, 2010, for Applicant to submit additional matters. Applicant timely submitted AE F
through AE I without objection.  The record closed on December 23, 2010. DOHA1
received the transcript of the hearing (Tr.) on December 28, 2010.
Procedural Ruling
Motion to Amend the SOR 
At the end of the hearing, Department Counsel moved to amend allegation 1.b of
the SOR to conform with the hearing testimony. Specifically, Department Counsel asked
to change the words “company laptop” to “personal laptop.” Applicant did not object to
amending the SOR. (Tr. 129-131) The Motion to Amend was granted, and allegation 1.b
of the SOR was changed as requested.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.c,
1.d, and 1.e of the SOR. His admissions are incorporated herein as findings of fact. He
denied the factual allegations in ¶¶ 1.a and 1.b of the SOR.  He did not admit or deny2
the allegations in SOR paragraphs 2.a (Guideline M) and 3.a (Guideline K). His failure is
Applicant worked for this company from 1997 until 2000 and held a security clearance while employed. GE3
1.
GE 1; AE B; AE C; Tr. 35.4
GE 1; AE E - AE I.5
GE 1; Tr. 35, 37-39.6
3
deemed a denial of these allegations. He also provided additional information to support
his request for eligibility for a security clearance. After a complete and thorough review
of the evidence of record, I make the following additional findings of fact.  
Applicant, who is 55 years old, works as a communications engineer for a
Department of Defense contractor. He began his current employment with this
contractor in January 2004.  He is chief of his communications engineering department3
and holds a fellowship position with his employer, as he is an expert in his are of
communications. His employer states that he is a very talented and experienced
engineer, and rated him as an exceptional contributor in his most recent evaluation. His
evaluations for the last six years have rated him as high contributor or exceptional.  4
From 2004 through 2006, Applicant, a civilian, worked overseas, in or near the
Iraq war zone. While overseas, he received several awards and other recognition for his
technical excellence and work performance. Through his ideas and abilities, he also
contributed significantly to the development of a communications systems now used by
the military. He served in the military reserves and on active duty for 12 years, from
December 1979 through May 1985 and April 1987 through November 1993. Applicant
held a security clearance during his military duty and after his military service. There is
no evidence that he mishandled classified information or violated the rules for handling
classified information at any time.  5
Applicant married in 1977. He has two sons, who are now 29 and 24 years old.
He attended college and earned an associate’s degree. He taught himself many of his
current skills. He holds industry and Federal Communications Commission licenses in
communication infrastructure. Since 1997, Applicant has worked in his area of
communications expertise.6
In 1986, Applicant worked for the local police department in a rural town. He also
started and operated a part-time radio business, which eventually included two partners,
who were the local Chief of Police and a councilman. His communications business
received used radio items from the police department and a variety of other
communications equipment from different sources. In April 1986, Applicant arrived at
work to find that someone had broken into the radio shop and taken one item. He
reported the break-in to the police, who investigated. The local police determined that
the burglary appeared to be an inside job and identified a suspect, who was an
employee of the radio shop. The employee-suspect told the local police that Applicant
and he stole mobile radio units from cars in the local area and that Applicant most likely
There is no evidence in the record which supports this statement.7
GE 10; GE 11.8
GE 10; GE 12; GE 14.9
GE 2.10
4
disposed of the items stolen in the burglary in April 1986.  During the investigation, the7
local police found five federal interceptor sirens from an out-of-state police department,
which had been given to the Applicant by a police officer from the out-of-state police
department. Because the Federal Bureau of Investigation (FBI) was conducting an
investigation on the interstate transportation of stolen property, the local police
contacted the FBI. The FBI investigated Applicant. The FBI contacted the out-of-state
police officer, who confirmed that he and Applicant traded communications equipment,
as the police officer also had a communication equipment business, and that he
mistakenly shipped Applicant the sirens. A month after their initial investigation, the local
police searched Applicant’s business and seized several items with missing serial
numbers, including a radio reported stolen in another state. The police arrested
Applicant following their search and seizure.8
At the conclusion of the FBI investigation, the federal prosecutor declined to
proceed in court. The State, however, indicted Applicant on 12 counts of criminal use of
article with altered identification mark because the serial number had been removed on
various equipment found in his business shop. The indictment does not indicate if the
crimes for which Applicant was charged were misdemeanors or  felonies, although the
FBI criminal records report does indicate at least one charge was a felony offense. In
1988, the state filed a motion for Nolle Prosequi, which the court granted on August 19,
1988. The record contains no additional evidence of criminal conduct. Applicant did not
list his felony arrest on his SF 86.9
In his first statement to the Office of Personnel Management (OPM) investigator
on February 19, 2009, Applicant discussed the radio communications business he
operated. He acknowledged being arrested for no serial numbers on walkie-talkies, then
indicated he was released a few hours later because the radio company told the police
that the walkie-talkies were a gift. When asked by the investigator about why he failed to
list his 1986 arrest, he stated that he misunderstood the question. He thought the
question asked if he had ever served a sentence for a crime he committed.10
Applicant met with the OPM investigator a second time on April 1, 2009 to
discuss charges listed on the FBI criminal records report. Specifically, they discussed
the 1986 charges of receiving stolen property from another state, severity unknown;
criminal use of an article with an altered identification mark, a felony; and acquiring a
license plate for the purpose of concealing the identification of a motor vehicle, a
misdemeanor. Applicant told the OPM investigator that the charge of receiving stolen
property was made by his business partners and was related to the walkie-talkies. He
stated that he turned himself in to the police; that he remained in jail for a few hours;
Id.; Tr. 52-58, 77-81.11
GE 3; GE 4; GE 5; Tr. 40.12
Tr. 40-41, 48, 59-60, 86-90.13
Id. at 40-42, 46, 63-64, 72-73, 86-87, 101, 107-110.14
5
that he talked to his business partners; and that his business partners agreed to drop
the charges if he turned over his share of the business to them and would not sue them.
He denied any knowledge of a bond being requested for him on these charges and of
being charged with felony crimes. He thought these crimes were misdemeanors.11
In June 2002, he accepted a position as the Director of Engineering with a
company many miles from his residence. In its offer letter, the company agreed to pay
him a salary of $70,000 a year, plus benefits. The offer letter noted that the State where
he would work was an employment-at-will State and that the letter did not constitute an
employment contract. The company asked him to sign a non-competition and non-
disclosure agreement, which he signed on June 27, 2010. The company agreed to pay
$10,000 for his moving expenses, conditioned upon his working for the company for two
years. The offer letter does not discuss the procedure for him to resign. After he moved,
Applicant received a bill from the movers for over $20,000. The company agreed to pay
the additional moving expenses, if Applicant agreed to remain in the company’s
employment for three years.12
Applicant began his employment in July 2002. His job required him to design and
build communication towers and shelters, not to write software. His work involved
contracts with the Department of Defense and the State. After his arrival, the company
hired his wife as the shop manager and his oldest son as an information technologist
(IT). Although Applicant testified that this was part of his hiring contract, the offer letter
does not include an offer of employment for his wife and son. The company extended
an offer of employment to Applicant’s family members after he began work.13
For his first year of employment, Applicant performed his work duties on his
personal laptop and transferred the information to the company’s main server for access
by other employees. Even though he received a company laptop computer late in the
summer of 2003, he continued performing most of his work on his personal computer
and transferring the work to the company server. To do his work, Applicant used
software containing a licensing key, which is an electronic code needed to enter the
control portion of the system and allow the software to operate. The licensing key has
no monetary value or security classification. The licensing key needed to be installed on
all equipment related to radios and for repairs. It was on his personal computer, but not
his company computer.14
The company was delighted with Applicant’s work during the first year of his
employment. The working relationship between Applicant and the company began to
deteriorate in the summer of 2003. The company laid off his wife in 2003, because it
Id. at 43-44, 89-90, 94.15
GE 7.16
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was not satisfied with her work, and it reduced the working hours of his son, as it did not
need a full-time IT person. Applicant believed the company had financial problems
because it laid off other staff, and he was concerned that the company would fail. The
company acknowledged that it had some financial problems in the fall of 2003. He
believed the company had problems paying vendors, but the company denied this
assertion of Applicant. Applicant found other work and asked the company about
working part time or moonlighting. The company declined, stating that it needed him to
work full time. On November 25, 2003, Applicant sent the company an e-mail, advising
that he was resigning his position immediately for reasons already known to the
company. He left his locked company laptop, company cell phone with charger, keys,
credit card, gas card, and cold weather gear in his locked office. He also advised the
company he would contact them soon about “taking care of the relocation issue.”
Applicant moved from the state by mid-December.15
Applicant’s sudden departure created problems for the company. In particular,
the company discovered that Applicant had erased the system design and the
programming for its radio equipment, but not all information on their computer server.
Applicant erased work-in-progress and select information from various locations on the
network. As a result, the company had to recreate all internal radio programs and
designs. On December 1, 2003, the company’s attorney wrote a letter to Applicant
asking 1) if he was in possession of a DoD system key and programming templates for
certain radio programs he designed and related records; and 2) if he had proprietary
software which he used to build his designs. The letter also indicated that he had
possession of a satellite phone, a specific scanner, 10 company shirts, and two jackets,
and that if he did not return this equipment and clothing, the company would bill him for
the costs. The company requested reimbursement for his moving costs and payment of
outstanding invoices for equipment he had purchased and restoration of the work he
had deleted. The company acknowledged that he did not use the key system after he
left his employment, and the record contains no evidence that the company’s
proprietary information was provided to another person or company.  16
Applicant and the company agreed that he returned the items requested.
However, in March 2004, the company filed a lawsuit against Applicant, alleging breach
of contract, breach of the covenant of good faith and fair dealing, conversion of tangible
personal property, and conversion of certain confidential proprietary personal property.
The company sought damages of $86,000, which included the previously paid moving
expenses. The court papers were served on a resident of Applicant’s new home in May
2004, although Applicant lived and worked overseas at this time. In September 2004,
Applicant prepared and mailed a motion for continuance under the Service Member
Relief Act, 50 U.S.C. App. 521, Sections 201 and 514, as he was serving overseas in a
war zone. At the same time, counsel for the company filed a motion for a default
GE 8; GE 9; AE D.17
GE 8; GE 9.18
Id.19
7
judgment because Applicant had not filed an answer to the lawsuit. The court entered a
default judgment on October 6, 2004.  17
Shortly thereafter, Applicant hired an attorney, who entered an appearance in the
lawsuit on October 15, 2004. Upon motion of Applicant’s counsel, the court set aside
the default judgment on November 24, 2004. Through counsel, Applicant submitted an
answer to the civil complaint, wherein he denied the majority of claims and allegations
of the company and raised three affirmative defenses to the lawsuit. He also filed a
counterclaim against the company for unpaid wages and defamation for wrongful
accusations of theft of property. Over the next year, the lawsuit proceeded slowly with
motions and trial continuances.18
At some point, Applicant advised his counsel that he would be available for the
trial in January 2006. The court scheduled the trial for January 17, 2006. Applicant did
not appear for the trial, but was represented by his counsel. The court entered its
decision on January 20, 2006. After hearing testimony and reviewing the evidence, the
court found that Applicant violated the employment agreement, and the company was
entitled to recover his moving expenses in the amount of $20,772. The court also found
that the information lost in the company’s main computer system occurred because
Applicant deleted the information and awarded the company $9,035 in damages. The
court entered judgment in the amount of $29,807 plus prejudgment interest of $5,532,
court costs of $420, and attorney fees of $5,481 in favor of the company and against
Applicant. The court decision does not contain any findings on Applicant’s counterclaim.
Applicant paid the judgment in full in November 2008.19
At his security clearance hearing, Applicant explained his conduct in a manner
similar to the defenses raised in the lawsuit filed against him by the company. He did
not acknowledge deleting any information from the company’s computer system.
Rather, he indicated the licensing key was on all of the company’s computers, meaning
access was available to the company.
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines. In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are used in evaluating an
applicant’s eligibility for access to classified information.
8
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
on the evidence contained in the record.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An
applicant has the ultimate burden of persuasion for 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 an 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 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
9
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.
AG ¶ 16  describes the disqualifying conditions that could raise security
concerns. I have considered all the conditions, and especially the following:
(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;
(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;
(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:
(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;
(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
10
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 and may serve as a
basis for exploitation or pressure by the foreign security or intelligence
service or other group; and
(f) violation of a written or recorded commitment made by the individual to
the employer as a condition of employment.
During his employment with the company, Applicant worked primarily on his
personal computer. He routinely transferred his work product from his personal
computer to the company’s main computer server, making the work accessible to other
employees. When Applicant resigned from the company in 2003, he left the company
computer in his company office. He, however, took his personal computer with him
which contained company proprietary information. He erased the proprietary information
related to the work he performed and transferred to the company’s computer server
from the company server, causing harm to the company. The company filed a lawsuit
against him and the court entered a judgment against him for the harm caused. The
police arrested him 1986 and charged him with several misdemeanor and felony crimes.
The Government established its case for allegations 1.b, 1.c, and 1.d under AG ¶¶
16(c), 16(d), 16(e) and 16(f). Because Applicant left the company computer in his office
the day he resigned and the offer letter does not provide any requirements for resigning,
SOR allegation 1.a is found in favor of Applicant.
For AG ¶ 16(a) to apply, Applicant’s omission, concealment or falsification of
relevant facts on his e-QIP must be deliberate. The Government established that
Applicant omitted a material fact from his SF-86 when he answered “no” to Question
23a, about his criminal felony charges in 1986. This information is material to the
evaluation of Applicant’s trustworthiness to hold a security clearance and to his honesty.
In his response, he denies, however, that he had an intent to hide this information from
the Government. 
When a falsification allegation is controverted, the Government has the burden of
proving it. Proof of an omission, standing alone, does not establish or prove an
applicant’s intent or state of mind when the omission occurred. See ISCR Case No.
07–00196 (App. Bd. Feb. 20, 2009); ISCR Case No. 09-07551 (App. Bd. Mar. 1, 2011)
In evaluating whether the Government has presented substantial evidence regarding
the deliberate nature of a false statement or an omission, the Judge must examine the
statement or omission in light of the record as a whole. Id. In making this determination,
the administrative judge must determine whether there is direct or circumstantial
evidence concerning an applicant’s intent or state of mind at the time the omission
occurred.
In his response to the SOR, Applicant admitted that he knew this information
when he completed the SF 86 and that he sought to conceal the information about his
arrest in 1986. He explained at the hearing and in his second interview with the OPM
11
investigator that he thought the charges were for misdemeanor crimes and had thought
so for 25 years. These statements are contrary to his initial statement to the OPM
investigator that he thought he need only list crimes for which he served time. His
inconsistent statements explaining his answer negatively impact the reliability of his
explanation for his “no” answer to Question 23a in the SF 86. The Government has
established intentional falsification.
AG ¶ 17 provides conditions that could mitigate security concerns:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was
caused or significantly contributed to by improper or inadequate advice of
authorized personnel or legal counsel advising or instructing the individual
specifically concerning the security clearance process. Upon being made
aware of the requirement to cooperate or provide the information, the
individual cooperated fully and truthfully;
(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;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable
reliability; and
(g) association with persons involved in criminal activity has ceased or
occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules
and regulations.
Because the factual statement contained in SOR allegation 1.c relates to the
conduct raised in SOR allegation 1.b, allegation 1.c is found in favor of Applicant.
Allegation 1.d concerns criminal charges which the State decided not to pursue after
examining all the evidence. Given the decision of the State, this allegation is found in
favor of Applicant. He, however, has not mitigated the security concerns raised in
allegations 1.b and 1.e.
12
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 the disqualifying conditions that could raise security concerns.
I have considered all the conditions, and especially the following:
(b) illegal or unauthorized modification, destruction, manipulation or denial
of access to information, software, firmware, or hardware in an information
technology system; and
(f) introduction, removal, or duplication of hardware, firmware, software, or
media to or from any information technology system without authorization,
when prohibited by rules, procedures, guidelines or regulations.
When he resigned his position with the company, Applicant decided to erase
much of his work product from the company’s main computer system. The information
deleted from the company’s main computer system was not haphazard or all
information, but selectively chosen information and primarily related to Applicant’s work
for the company. Applicant’s actions are a violation of the company’s policies and
general workplace rules governing work products which are the proprietary information
of the company. The Government has established a prima facie case under Guideline
M. 
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,
13
(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 decision to erase information from the company’s main computer
system was deliberate and intentional, not inadvertent or unintentional. His actions were
not for the company’s efficiency or effectiveness, but appear to be the result of his
anger and frustration with the company. While this incident took place more than seven
years ago, given his computer skills and expertise, I have concerns that he could act in
a similar manner in the future if he were angry and frustrated with an employer. He has
not mitigated the security concerns raised by the Government.
Guideline K: Handling Protection Information
AG ¶ 33 expresses the security concern pertaining to handling protected
information, “Deliberate or negligent failure to comply with rules and regulations for
protecting classified or other sensitive information raises doubt about an individual's
trustworthiness, judgment, reliability, or willingness and ability to safeguard such
information, and is a serious security concern.”
AG ¶ 34 describes the disqualifying conditions that could raise security concerns.
I have considered all the conditions, and especially the following:
(g) any failure to comply with rules for the protection of classified or other
sensitive information.
When he resigned his position in 2003, Applicant modified the company’s main
computer system by erasing much of his work product from the company’s main
computer system. The information deleted from the company’s main computer system
was not haphazard or all information, but selectively chosen information and related to
Applicant’s work for the company. Applicant’s actions are a violation of the company’s
policies and general workplace rules governing work products which are the proprietary
information of the company. The Government has established a prima facie case under
Guideline K. 
AG ¶ 35 provides conditions that could mitigate security concerns:
(a) so much time has elapsed since the behavior, or it has happened 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;
(b) the individual responded favorably to counseling or remedial security
training and now demonstrates a positive attitude toward the discharge of
security responsibilities; and
14
(c) the security violations were due to improper or inadequate training.
While it has been seven years since Applicant deleted the company’s proprietary
information connected to his work product, his decision to do so continues to raise
concerns that he could act in a similar manner in the future, if he is angry or frustrated
with an employer. I recognize that he has handled classified information in the past
without incident and since he left the employ of the company in 2003. This positive
conduct is insufficient to overcome the concerns I have. He has not mitigated the
Government’s security concerns under Guideline K.
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 an applicant’s
conduct and all relevant 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. The decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct,
but on a reasonable and careful evaluation of all the evidence of record to decide if a
nexus exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case.  After his
arrest in 1986, Applicant stayed away from conduct which involved criminal matters. He
successfully served in the United States military for seven years, then developed a
successful career in communications. His employer highly respects his work skills and
rates his performance highly. During his civilian service near the Iraq war zone, he
received several awards and letters for his work. The military also thought highly of his
work. He has never violated the procedures for handling classified information.
15
Seven years ago, Applicant abruptly ended his employment with the company
after their working relationship deteriorated. When he left his job, he deliberately
accessed the company’s main computer server and deleted proprietary information
related to the work he had performed. This conduct was a serious breach of his
responsibilities as an employee and appears to have been done in anger and
frustration. He clearly did not want his employer to have access to his work. This
conduct raises serious concerns about his judgment and trustworthiness. A concern
continues as to what he might do in a similar situation in the future, especially since he
has not taken responsibility for his conduct. 
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has not mitigated the security concerns arising from his misuse of
information technoloy and handling of protected information under Guidelines M and K
and his personal conduct under Guideline E.
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
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: Against Applicant
Paragraph 2, Guideline M: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Paragraph 3, Guideline K: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
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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.
                                                              
MARY E. HENRY
Administrative Judge