DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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----------------------------------   )       ISCR Case No. 10-00320
)
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Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Department Counsel
For Applicant: Pro se
November 22, 2011
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIPS) on January 22, 2001, and on September 6, 2007.  (Government Exhibits 1 and
3.) On March 7, 2011, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the security concerns under Guidelines K, L and
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 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.
The Applicant responded to the SOR on April 4, 2011, and requested an
administrative decision without a hearing.  On July 14, 2011, pursuant to Paragraph
E3.1.7, of the Additional Procedural Guidance at Enclosure 3 of DoD Directive 5220.6,
Department Counsel requested a hearing before a DOHA Administrative Judge.  This
case was assigned to the undersigned on July 5, 2011.  A notice of hearing was issued
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on July 8, 2011, and the hearing was scheduled for August 17, 2011.  At the hearing the
Government presented seven exhibits, referred to as Government Exhibits 1 through 7,
which were admitted without objection.  The Applicant presented four exhibits, referred
to as Applicant’s Exhibits A through D, which were also admitted without objection.  He
also testified on his own behalf.  The official transcript (Tr.) was received on August 25,
2011.  Based upon a review of the case file, pleadings and exhibits, eligibility for access
to classified information is denied.
FINDINGS OF FACT
The Applicant is 61 years old and married.  He has a Master’s Degree in
Engineering.  He is employed as a Program Manager by a defense contractor and is
applying for a security clearance in connection with his employment.
Paragraph 1 (Guideline K - Handling Protected Information. The Government alleges
that the Applicant is ineligible for clearance because he engaged in conduct wherein he
deliberately or negligently failed to comply with rules and regulations for protecting
classified or other sensitive information.
The Applicant admits allegations 1(a) and 1(b) of the SOR.  He denies allegation
1(c).  The Applicant began working for the defense industry in 1976 when he first
obtained a security clearance.  He has held a security clearance consistently since then.
He has committed three security violations.    
In December 2006, the Applicant failed to secure two classified diskettes in an
authorized manner in violation of paragraph 5-102 of DoD 5220.22-M, National
Industrial Security Program Operating Manual (NISPOM), while employed for a defense
contractor.  As the Program Manager at the time, he explained that his deputy program
manager handed him a computer in a bag.  The Applicant took the computer out of the
bag and put it in a classified container and secured it.  He then went to lunch.   The
Applicant failed to check to see if there was anything else in the bag.  After returning
from lunch, the Applicant checked the bag and there were two classified diskettes in it.
He then went to a neighbor’s office who did not go to lunch and asked if anyone had
approached the Applicant’s office while he was at lunch and was told that no one had.
The Applicant did not report the incident to his security officer.  He stated that he made
a conscious decision not to report this security violation because he felt that there was
no compromise.  (Government Exhibit 2.)  This incident was only disclosed when
undergoing his interview concerning his five year routine background investigation for
his security clearance.  Following this security violation the Applicant had some online
security refresher courses.  (Tr. p. 44.)   
Four months later, in April 2007, the Applicant failed to properly secure a laptop
computer containing classified material in an authorized manner in violation of
Paragraph 5-102 of DoD 5220.22 M (NISPOM), while employed for a defense
contractor.  The Applicant explained that he had worked late that night, was tired and
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left the computer out, went into the parking lot, got into his car and remembered it
immediately.  He went out of the parking lot and came right back.  The next day he
reported the incident to his security personnel.  (Tr. p. 43.)  The Applicant admits a
lapse in judgment as to why the incident occurred.     
In December 2007, the Applicant transmitted an e-mail that contained Secret
information on a non-classified computer in violation of Paragraph 5-400 of DoD
5220.22M (NISPOM), while employed for a defense contractor.  (Government Exhibit
4.)  The Applicant contends that he did not violate this security guideline or that the
violation was not his fault.  He states that DARPA changed the security guide and that
some pieces of the program were designated as classified on the program and were
included in an addendum that was issued in November 2007.  The Applicant claims that
the addendum was not sent to the Applicant.  (Applicant’s Exhibits A and B, and Tr. p.
45-46.)  The Applicant’s computer was required to be sanitized and backup tapes were
erased as a result.  Following an investigation into the matter, the Applicant was not
issued a security violation for the incident.  (Tr. p. 47.)  Every year the Applicant now
takes a refresher course in security regulations.    
Paragraph 2 (Guideline L - Outside Activities). The Government alleges that the
Applicant is ineligible for clearance because he has engaged in certain types of
outside-employment or other activities that pose a conflict with an individual’s security
responsibilities.
The Applicant admits each of the allegations set forth in the SOR under this
guideline.  From 1998 to 1999, while employed as a full time employee for a defense
contractor, the Applicant was also employed as a consultant for an engineering
manufacture.  In 1999, during his employment with this outside company he traveled to
Country A to locate a company there to mass produce a product for the manufacturing
company.  His job was to supervise the design.  The Applicant did not report this
outside employment to his defense contractor because the technology he applied to
these activities was learned from past employers and may have constituted
unauthorized sharing of proprietary information.   (Tr. p. 35.)  This outside employment
was only disclosed during a polygraph examination administered in connection with his
application for a Special Access Program.  
When the Applicant completed the security clearance application, he failed to
reveal the real reason he traveled to Country A in 1999.  He indicated that he went for
pleasure, when in fact he went to work for the manufactures.  (Government Exhibit 2.)
He stated that the reason he said he traveled to Country A for pleasure is because he
had talked himself into thinking that since it was an outside job, he did not have to report
it as business.  (Tr. p. 39.)   
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Paragraph 3 (Guideline E - Personal Conduct). The Government alleges that the
Applicant is ineligible for clearance because he has engaged in conduct involving
questionable judgment, lack of candor, dishonesty, or an unwillingness to comply with
rules and regulations.
The Applicant admits allegations 3(a), 3(b), and 3(d), as set forth in the SOR. He
denied allegations 3(c), and 3(e).  (Applicant s Answer to the SOR.)
The Applicant completed a security clearance application dated January 22,
2001.  Question 6 asked him to list his employment activities, beginning with the present
and working back ten years.  He was asked to list full time work, part-time work, military
service, temporary military duty locations over 90 days, self-employment, other paid
work, and all periods of unemployment.  The Applicant failed to list that he was
employed as a consultant by the manufacturing company from 1998 to 1999.  He states
that he failed to list his consulting work through misunderstanding of the requirements
for disclosure.  (See Applicant’s Answer to SOR.) 
In 2002, the Applicant’s Special Program Access was revoked by another
Government agency in part, due to his work as a consultant for a foreign national whom
he met in 1998; for acknowledging his involvement in unreported foreign business
activities; for admitting his trips to Country A and Country B in December 1999 and
January 2001 that were not soley for pleasure as previously reported, but for business
as well; for continuing additional unreported work up to at least September 2001; for his
failure to list foreign connections and consulting on his January 2001 security clearance
application; and for his unauthorized disclosure of proprietary information.   
The Applicant completed an Electronic Questionnaire for Investigations
Processing (e-QIP) dated September 6, 2007.  Question 26 asked him if he had ever
had a clearance or access authorization denied, suspended, or revoked, or has he ever
been debarred from government employment.  The Applicant answered, “NO,” and
failed to list that his Special Program Access was revoked by another Government
agency in 2002.  He states that he did not disclose this information on his security
clearance application under the direction of the security representative at his company.
(Government Exhibit 2.)  
A letter of recommendation from the Applicant’s direct supervisor, who has
known the Applicant for six and half years indicates that the Applicant is a strong
contributor to the organization, and is skilled in both the development of advanced
concepts and program execution.  He is a hardworking, dedicated employee who is a
skilled leader.  He has shown excellent organizational skills, gets along well with others
and is well respected by the customer community.  He is highly recommended for a
position of trust.  (Applicant’s Exhibit D.) 
An e-mail correspondence complimenting the Applicant for good performance on
the job was also submitted.  (Applicant’s Exhibit C.) 
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POLICIES
Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies
divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying
Factors and Mitigating Factors are found to be applicable in this case:
Guideline K (Handling Protected Information)
33. The Concern.  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.
Conditions that could raise a security concern:
34.(a) deliberate or negligent disclosure of classified or other protected
information to unauthorized persons, including but not limited to personal or business
contacts, to the media, or to persons present at seminars, meetings, or conferences;
25.(g) any failure to comply with rules for the protection of classified or other
sensitive information. 
25.(h) negligence or lax security habits that persist despite counseling by
management.
Conditions that could mitigate security concerns:
None.
Guideline L (Outside Activities)
36.  The Concern.  Involvement in certain types of outside employment or activities is of
security concern if it posses a conflict of interest with an individual’s security
responsibilities and could create an increased risk of unauthorized disclosure of
classified information.
Conditions that could raise a security concern:
37.(a) any employment or service, whether compensated or volunteer, with;
     (2) any foreign national, organization, or other entity;
     (3) a representative of any foreign interest. 
37.(b) failure to report or fully disclose an outside activity when this is required.
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Conditions that could mitigate security concerns:
None.
Guideline E (Personal Conduct)
15. The Concern. 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.
Conditions that could raise a security concern:
16.(a) deliberate omission, concealment, or falsification of relevant facts from any
personnel security questionnaire, personal history statement, or similar form used to
conduct investigations, determine employment qualifications, award benefits or status,
determine security clearance eligibility or trustworthiness, or award fiduciary
responsibilities; 
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
judgement, 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
16.(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: 
(3) a pattern of dishonesty or rules violations.
Conditions that could mitigate security concerns:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct;
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b.  The circumstances surrounding the conduct, to include knowledgeable
participation;
c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The extent to which participation is voluntary;
f.  The presence or absence of rehabilitation and other permanent behavioral
changes;
g.  The motivation for the conduct;
h.  The potential for pressure, coercion, exploitation or duress; and
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the
national interest" to grant an Applicant’s request for access to classified information.
The DoD Directive states, "The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
an acceptable security risk. Eligibility for access to classified information is predicated
upon the individual meeting these personnel security guidelines. The adjudicative
process is the careful weighing of a number of variables known as the whole-person
concept. Available, reliable information about the person, past and present, favorable
and unfavorable should be considered in reaching a determination." The Administrative
Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record. The Judge cannot draw inferences or conclusions
based on evidence which is speculative or conjectural in nature. Finally, as emphasized
by President Eisenhower in Executive Order 10865, "Any determination under this order
shall be a determination in terms of the national interest and shall in no sense be a
determination as to the loyalty of the Applicant concerned.”
CONCLUSIONS 
In the defense industry, the security of classified industrial secrets is entrusted to
civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week. The Government is therefore
appropriately concerned when available information indicates that an Applicant for
clearance may be involved in the mishandling of protected information, personal
conduct and outside activities that demonstrates poor judgment or unreliability.
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It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s conduct and the
continued holding of a security clearance. If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case. The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a security clearance.
In this case the Government has met its initial burden of proving that the
Applicant has engaged in the mishandling of protected information (Guideline K),
unreported outside activities (Guideline L) and personal conduct (Guideline E).  The
totality of this evidence indicates poor judgment, unreliability and untrustworthiness on
the part of the Applicant. Because of the scope and nature of the Applicant’s conduct, I
conclude there is a nexus or connection with his security clearance eligibility.
Considering all of the evidence, the Applicant has not introduced persuasive evidence in
rebuttal, explanation or mitigation that is sufficient to overcome the Government’s case
under Guidelines K, L and E of the SOR.
The evidence shows that the Applicant committed three security violations, one
in December 2006, one in April 2007 and another in December 2007. He was negligent,
careless, and failed to comply with the rules for the proper protection of classified or
sensitive information.  It is noted that these violations occurred almost four years ago,
however, given his long history in the defense industry, coupled with his experience,
training and his status as a Program Manager, there is absolutely no excuse for these
violations.  Disqualifying Conditions 34.(a) deliberate or negligent disclosure of classified
or other protected information to unauthorized persons, including but not limited to
personal or business contacts, to the media, or to persons present at seminars,
meetings, or conferences, 25.(g) any failure to comply with rules for the protection of
classified or other sensitive information; and 25.(h) negligence or lax security habits that
persist despite counseling by management apply.  Under the particularly circumstances
of this case, none of the Mitigating Conditions are applicable.  Accordingly, I find against
the Applicant under Guideline K, Handling Protected Information.
In regard to his outside activities the record shows that the Applicant was
employed as a consultant for another company while working for a defense contractor.
He failed to report or disclose this outside activity when required.  Under Guideline L,
Outside Activities, Disqualifying Conditions 37.(a) any employment or service, whether
compensated or volunteer, with; (2) any foreign national, organization, or other entity;
and (3) a representative of any foreign interest; and 37.(b) failure to report or fully
disclose an outside activity when this is required apply.  None of the Mitigating
Conditions are applicable.  Accordingly, I find against him under Guideline L, Outside
Activities.
Applicant’s repeated security violations, in addition to his failure to report his
security violation to his security personnel, his failure to list his employment as a
consultant on his security clearance application of January 22, 2001, and his failure to
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list the fact that his Special Program Access was revoked by another Government
agency in 2002 on his 2007 questionnaire raises doubt about his trustworthiness,
reliability, judgment and willingness properly safeguard classified information.  His
credibility is in question. Under the particular facts of this case, his poor personal
conduct is considered a significant security risk, which prohibits a favorable
determination in this case.  
Under Guideline E, Personal Conduct, the following Disqualifying Conditions
apply:
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 judgement, 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, and 16.(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:
(3) a pattern of dishonesty or rules violations apply.  
None of the mitigating conditions are applicable. Consequently, I find against the
Applicant under Guideline E, Personal Conduct.
I have also considered the "whole-person concept" in evaluating the Applicant’s
eligibility for access to classified information. Under the particular facts of this case, the
totality of the conduct set forth under all of the guidelines viewed as a whole, support a
whole-person assessment of poor judgment, untrustworthiness, unreliability, a lack of
candor, an unwillingness to comply with rules and regulations, and/or other
characteristics indicating that the person may not properly safeguard classified
information.
This Applicant’s history of security violations, outside employment, unreported
foreign business activities, and the fact that his Special Program Access was revoked
by another government agency collectively demonstrate that he is not sufficiently
trustworthy.  He clearly does not meet the eligibility requirements for access to classified
information.  Accordingly, I find against the Applicant under Guideline K (Handling
Protected Information), Guideline L (Outside Activities) and Guideline E (Personal
Conduct).
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On balance, it is concluded that the Applicant has failed to overcome the
Government’s case opposing his request for a security clearance. Accordingly, the
evidence supports a finding against the Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1, 2 and 3 of the SOR.
FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
Subpara. l.a.: Against the Applicant.
Subpara. I.b.: Against the Applicant.
Subpara. I.c. : Against the Applicant
Paragraph 2: Against the Applicant.
Subpara. 2.a.: Against the Applicant.
Subpara. 2.b.: Against the Applicant.
Subpara. 2.c.: Against the Applicant.
Paragraph 3: Against the Applicant.
Subpara. 3.a.: Against the Applicant.
Subpara. 3.b.: Against the Applicant.
Subpara. 3.c.: Against the Applicant.
Subpara. 3.d.: Against the Applicant.
Subpara. 3.e.: Against the Applicant.
DECISION
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue a security clearance for
the Applicant.
Darlene Lokey Anderson
Administrative Judge
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