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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-06184
)
)
Applicant for Security Clearance )
Appearances
For Government: Eric Borgstrom, Esquire, Department Counsel
For Applicant: Pro se  
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Decision
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LYNCH, Noreen A., Administrative Judge:
After a review of the pleadings, exhibits, and testimony, I have no questions or
doubts as to Applicant’s eligibility and suitability for a security clearance, as he has
mitigated the Government’s security concerns. Applicant’s eligibility for access to
classified information is granted.
Applicant signed an Electronic Questionnaire for Investigations Processing (e-
QIP) version of a security clearance application (SF-86) on January 22, 2010. The
Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of
Reasons (SOR) on November 30, 2010, detailing security concerns under Guideline E
(Personal Conduct), and Guideline M (Use of Information Technology Systems), 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 Adjudicative Guidelines For Determining
Eligibility for Access to Classified Information (AG) implemented on September 1, 2006. 
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Applicant answered the SOR in writing on December 14, 2010, and requested a
hearing before an administrative judge. I received the case assignment on February 11,
2011. DOHA issued a notice of hearing on March 4, 2011, and I convened the hearing
as scheduled on May 4, 2011. The Government offered nine exhibits marked as GE 1
through 9, which were admitted into evidence without objection. Applicant testified,
presented two witnesses, and submitted exhibits marked as AE A through E, which
were admitted into evidence without objection. DOHA received the transcript of the
hearing (Tr.) on May 13, 2011.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a,
1.b, 2.a, and 2.b of the SOR. His admissions are incorporated herein as findings of fact.
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 is 61 years old. He received his undergraduate degree in 1971.
Applicant is married and has one adult son. He served as an industrial security
specialist in a federal position from approximately 1980 until April 2009. He has held a
security clearance since 1980. He resigned from federal service in April 2009 in lieu of
termination. He is currently sponsored for a position by a defense contractor. (Tr. 27)
His security clearance was suspended on January 6, 2009 because he misused a
government laptop to view sexually explicit websites. (GE 9)
Applicant’s wife has been disabled for the past 20 years. (Tr. 30) She suffers
from a muscle and nerve disorder primarily in the region of her back. She has been
diagnosed with Fibromyalgia and visits a rheumatologist, neurologist, and general
practitioner. She requires physical therapy three days a week. (GE 7) Applicant has
cared for her during the past 20 years. 
Between 2004 and February 2008, she had a series of breathing attacks where
the air to her lungs was cut off. These attacks often began with a simple cough, which
then escalated to the point where she gasped for air. As a result of these attacks, she
also suffers from anxiety and panic attacks fearing that the breathing problem will
reoccur. In March of 2008, she was involved in a car accident, resulting in a shoulder
injury which aggravated her pre-existing disability. (GE 7) 
Until the fall of 2006, Applicant’s son was a strong and healthy young man active
in school activities and sports, including as a lineman on his school’s football team. In
the fall of 2006, he was diagnosed as having a pineal cyst at the base of his spine. He
had his first surgery in October 2006. In order to treat the wound, he had follow-up visits
with his physician three times a week. (Tr. 31) Applicant’s son threatened suicide in
front of Applicant. Applicant was in constant emotional pain. 
In the summer of 2007, another tract infection was discovered requiring
immediate surgery. For the next year and a half, Applicant’s son received painful silver
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nitrate treatments on a weekly or biweekly basis. During this period, Applicant’s son
could not engage in physical activity of any kind. The amount of time he could sit or
walk was limited. In January 2008, Applicant’s son was referred to a wound care
specialist. In April 2008, Applicant’s son developed another infection in his rectum which
required another surgery. A third surgery occurred in July 2008. Applicant was
responsible for part of the home care for the next four months. 
Applicant acknowledged that from about September 2007 until October 2008, he
viewed sexually explicit websites on his government issued laptop from his home. He
estimates that it was three to four times a week to daily. He visited the websites during
the workday and after work. He did not download any pornographic images or programs
or save any images or links to his hard drive. (Tr. 41)  He describes his use as a “long
term isolated incident.” (GE 6)
Applicant said that he was shown a website by another contractor at some point
in 2007. He had the website emailed to him and started to visit other sites. At first he
said the contractor sent him the email on his own, but at the hearing he acknowledged
that he gave his email to the contractor so that the contractor could send the website.
(Tr. 93)
Applicant recognized his use of the computer was unsanctioned and
inappropriate. He is sorry for the pain and distress that his actions caused his family. He
regrets making this serious mistake. He states that he betrayed the trust that had been
placed in him. He takes responsibility for his actions and does not downplay his error in
judgement. (AE C) Applicant notes that his productivity and ability to perform his duties
did not suffer.  His supervisor at the time confirms that Applicant’s work performance
was not adversely affected. (GE 7)
In July 2008, Applicant’s lap top was confiscated by his supervisor. (GE 8) After
an interview and investigation, Applicant was charged with misuse of his government
computer due to viewing sexually explicit material. (GE 9) Applicant was issued another
computer and told to return to work. (Tr. 36) At some point in 2008, he was put on
administrative leave with pay. (Tr. 48) 
Applicant appealed the decision to terminate him as too severe an action. He
argued through counsel that he had 28 years of federal service with no prior disciplinary
actions. However, he lost the appeal. Applicant resigned from his position in lieu of
termination in April 2009. His SF 50 notes that the nature of the action is resignation.
(GE 9) Applicant credibly stated  that he was given an option to resign rather than be
terminated. (Tr. 48) However, the SF notes in the remarks section that he resigned in
April 2009 after a decision was made to separate for misuse of government information
technology resources and failure to follow agency regulation and policy. (GE 9)
In January 2009, Applicant consulted a licensed clinical social worker for
counseling. He saw him on a weekly basis. Applicant recognized that his emotional
distress about his family may have contributed to this behavior, which was inconsistent
with his true character. He also sought treatment for the stress and anxiety that
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accompanied the termination from federal service. Applicant had weekly sessions with
the LCSW until July 2009. (AE E) He was diagnosed with adjustment disorder with
anxiety. Applicant learned how to cope with stressors. He knows this behavior was out
of character for him. He had not been familiar with any websites on the Internet dealing
with explicit sex before seeing one at a defense contractor’s computer in another office.
At first, he rationalized that he could access the sites because there were no warning
signs on the computer screen and the sites were not blocked.
At the hearing, Applicant testified that he dealt with the stress of the conditions at
home in an unhealthy manner. He stated that it was a distraction from daily problems
and opened a world of fantasy and excitement. He did not have his own computer so he
would use the government laptop. (Tr. 13) Applicant was credible when he testified that
he worked after hours and on weekends to make up any lost time when he had
accessed the websites. 
At the hearing, Applicant expressed remorse for his misbehavior. He stated that
the pain, grief, and devastation that he caused his family is tremendous and haunts him
everyday. At the time he needed help with a life crisis, namely his wife and son’s illness,
and he dealt with his problems in an unhealthy way. He did not seek out clergy for
guidance at the time. Instead, he looked to pornography for a quick fix. (Tr. 13) He
noted the distraction eased the pain and opened a world of fantasy and excitement.
Applicant now has support from his family, his church, and his counselor. He is
free to return for counseling at any time. Applicant uses the techniques he learned in
counseling, such as sleep enhancement techniques and stress reduction techniques.
He has learned to quiet his mind. (AE E) He has insight into his patterns, including the
destructive one of visiting the sexually explicit websites. He knows how to control his
responses. (Tr. 14) Applicant emphasized that he is peaceful, calm, and has eliminated
stressors through meditation, exercise and phone calls to a counselor. He has no
intention of visiting any such websites and has not since the summer of 2008. The
horrific pain he caused is family is a strong deterrent for him.
Applicant submitted a packet of documents to include awards, letters of
appreciation and commendations from 1984 until 2010. (AE B) They attest to the fact
that Applicant went beyond expectations in every project. He brought credit to his team
and to each contractor that he helped. 
Applicant’s supervisor until 2007 testified at the hearing. He has known Applicant
for more than 25 years. (Tr. 101) He retired from federal service with a security
clearance. He describes Applicant as an honest, trustworthy, dependable, reliable team
player who is devoted to work and family. Applicant’s supervisor evaluated him for many
years. There was never a problem with his work. Applicant’s supervisor noted that
Applicant was always willing to receive constructive feedback and incorporate the ideas
into his performance. (Tr. 103) Applicant’s supervisor recommends him for a clearance
and is confident that he will continue to render a high level of performance in the future
despite the behavior. (AE D)
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A defense contractor who has known Applicant for more than ten years, testified
at the hearing that Applicant was very helpful to him in his work as an industrial security
specialist. He describes Applicant as helpful, thoughtful, and professional. (Tr. 54) He
knew about the personal difficulties that Applicant had with his family. He has
recommended Applicant for various positions. (Tr. 62)
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.
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.
 
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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
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: (e) unauthorized use
of a government or other information technology system.
Applicant admits that he used a government computer with varying frequency to
include daily, from about September 2007 to at least October 2008, to view sexually
explicit websites. Applicant’s actions are a violation of the policies and regulations
regarding the misuse of government issued information technology equipment. 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
(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.
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Applicant’s decision to view sexually explicit websites was out of character for
him. He never violated any other policies during his 28 years of federal service. He has
this one blemish on his record. Applicant displayed poor judgment in accessing the
inappropriate sites on a government computer because his family situation was causing
him emotional distress and turmoil. He admits his mistakes and does not downplay the
seriousness of them. His last visited the pornographic websites in July 2008. He sought
counseling in 2009, and learned techniques to deal with pressures and stressors. He
accepts responsibility for his actions. He has insight into his behavior and a support
system. His misconduct is unlikely to recur. It does not cast doubt on his current
reliability. He has an excellent work performance history. His conduct is mitigated under
AG ¶ 41(a).
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
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
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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
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 employee as a condition of employment.
Applicant violated the work policy by viewing sexually explicit websites on his
government issued laptop for almost two years. He exercised poor judgment. The
behavior is the same as alleged under misuse of technology. He was offered an
opportunity to resign before termination. He decided to resign in April 2009. However,
his SF 50 notes that he was subject to termination based on the behavior described
above. AG ¶¶ 16(c), 16(d), and 16(e)(1) apply.
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;
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(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.
Applicant’s conduct must be put in the appropriate context. He was under great
emotional strain due to family illness. He does not deny that he exercised poor
judgment for about 13 months. He knows that he engaged in unhealthy, destructive
behavior. He has taken positive steps through counseling to alleviate the pattern of
using sexually explicit websites to handle his stress. His behavior is one blemish on a
28-year career. He resigned in April 2009. His misuse of the government computer
happened under unique circumstances. He lost his career and is motivated and able to
perform his work in a healthy manner. The misconduct is not likely to recur and does not
cast doubt on his reliability or trustworthiness under these circumstances. He is not
subject to exploitation based on his behavior. He receives mitigation under AG ¶
17(c),(d), and (e).
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
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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. Applicant
has worked for the federal government, holding a security clearance for 28 years. He
has an excellent work history and recommendations from his supervisor. He has
received several awards and letters for his work. He is married and has one son. He
has cared for his wife for at least 20 years. His son became seriously ill and needed
care in 2006, 2007, and 2008. Applicant was under great emotional stress. He
continued to work and was effective in his work.
In late 2006 or early 2007, Applicant began viewing sexually explicit websites on
his government computer. He did this on an almost daily basis. He was sanctioned by
his employer with the threat of termination. He resigned before a termination. He
obtained counseling. He now has insight into his behavior. He accepts responsibility for
the behavior. His supervisor for almost 20 years attests to Applicant’s work ethic and
personal conduct. Applicant has the ability and motivation to never repeat a pattern of
behavior such as he did in 2007 until 2008. There is no bright line for rehabilitation. In
this case, Applicant has learned from his serious mistakes and taken responsibility. 
Overall, the record evidence leaves me without questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has mitigated the security concerns arising from his misuse of
information technoloy under Guideline M 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 M: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
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Paragraph 2, Guideline E: FOR APPLICANT
Subparagraphs 2.a-2.b: 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.
                                                              
Noreen A. Lynch
Administrative Judge