KEYWORD: Guideline K; Guideline E; Guideline M
DIGEST: The government’s witness’s testimony was detailed, internally consistent and
consistent with other evidence.  The fact that the witness discovered no evidence that Applicant
was spying does not undermine the legitimacy of the investigation. Applicant’s arguments rely
on application of an exclusionary rule, which derives from criminal proceedings, and is not
applicable in DOHA proceedings, which are civil in nature.  Adverse decision affirmed.
CASENO: 10-04911.a1
DATE: 12/19/2011
DATE: December 19, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-04911
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
David Hayes, Esq., Department Counsel
FOR APPLICANT
Pro se
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On December 22, 2010, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline K (Handling Protected
Information), Guideline E (Personal Conduct), and Guideline M (Use of Information Technology
Systems) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).
Applicant requested a hearing.  On September 19, 2011, after the hearing, Administrative Judge Juan
J. Rivera denied Applicant’s request for a security clearance.  Applicant appealed pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge’s findings of fact were
based upon substantial record evidence; whether the Judge erred in his credibility determinations;
whether the Government failed to meet its burden of production; whether the Judge failed to
consider all of the record evidence; whether Applicant was denied due process; whether the Judge
erred in his application of the pertinent mitigating conditions; and whether the Judge’s whole-person
analysis was erroneous.  Consistent with the following, we affirm the Judge’s decision.
Facts
The following summarizes the Judge’s pertinent findings of fact: Applicant is a Government
contractor working for the North Atlantic Treaty Organization (NATO) since the mid-1990s.  He
served as an officer in the U.S. Army and retired in the mid-1990s.  During his career he spent 13
years overseas, including several assignments to NATO.  While in the Army, he possessed a top
secret security clearance with access to sensitive compartmented information.  He had no security
incidents while in the Army.
In the mid-1990s Applicant and a partner established a corporation to provide services to
NATO countries.  He was given a security clearance and, by the time of the hearing, had handled
over 300 contracts with NATO.
In early 2007, Applicant attended two meetings in offices inside a NATO building.  These
meetings were both interrupted by Army counter-intelligence personnel “seeking a rogue wireless
transmitter communicating with the embassy of a hostile government from within the NATO
building.”  Decision at 3.  Applicant’s laptop was identified as the transmitter.  He refused
permission for investigators to inspect it.
A month later, Applicant turned over his laptop to investigators, who performed a forensic
analysis.  The analysis disclosed that, over a period of several days prior to turning over the laptop,
Applicant had conducted  extensive searches for documents containing the words “confidential” and
“secret.”   On one occasion Applicant deleted 200 files from the laptop drive and on another he
deleted approximately 2,000.
Applicant backed up his laptop onto an external hard drive before deleting the documents.
Investigators recovered 130 of the 2,200 documents that Applicant had deleted, and approximately
100 of them were classified as NATO confidential or above.  
3
Applicant had not registered his laptop with NATO authorities, as he was required to have
done.  He was not authorized to use a wireless modem from within the building.  He registered the
laptop with NATO authorities six days after he was asked by investigators for permission to inspect
it.  The external hard drive was never registered with the proper authorities, and it was not
authorized to handle classified documents.  
Applicant transferred U.S. and NATO classified documents form his laptop to the external
hard drive prior to deleting the documents from the laptop.  The external drive was unsecured for
approximately 14 months.  Although Applicant had a security clearance, he was not authorized to
store documents in his laptop, external hard drive, or at his home.  During the investigation, he
admitted to knowingly loading and storing classified documents in his laptop without authorization.
As a NATO contractor, Applicant was required to update his security clearance annually,
to participate in annual security briefings, and to follow appropriate security procedures for the
handling of classified information.  In August 2005, he signed a document stating that he had been
briefed and that he understood the requirements for handling and safeguarding NATO classified
information. 
Applicant was subsequently arrested and charged with espionage by the host nation
government.  Authorities searched his house, discovering 38 hard copies of classified documents.
He was not authorized to store these documents at his home.  After a two year investigation,
authorities concluded that there were no hostile foreign intelligence services involved in the incident.
Accordingly, the court dismissed the criminal charges.
At the hearing, Applicant stated that, when he had performed the search of his computer, he
was surprised to find classified information therein.  He stated that most of the documents had been
loaded onto his laptop without his knowledge during a one-month deployment.  He claimed that,
during this deployment, the general officer in charge had authorized him to store NATO confidential
documents on the laptop, as a measure of expediency.   
After returning from deployment, Applicant did not delete the documents, nor did he notify
security personnel that he had documents on his laptop that exceeded the laptop’s classification
authorization.  Applicant’s connections with commercial internet providers made the classified
information on his computer vulnerable to compromise.  At the hearing, Applicant claimed that, at
the time of the internet connections, he was not aware that his laptop contained classified
information.  
Applicant expressed remorse for having stored and possessed the classified information.  He
intimated that some of the documents were not properly classified and that some of the
classifications had been downgraded.  However, he presented no corroboration.  
He testified that, as result of the criminal and security clearance investigations, he better
understands how to handle classified information.  His company is training its employees so as to
avoid such incidents in the future.
1See Memorandum for DISCO, dated June 26, 2008, contained in GE 3, which states that Applicant’s efforts
to delete and overwrite the classified files on his laptop made it difficult for investigators to evaluate the full extent of
his security violations.  
4
In the analysis, the Judge concluded that the evidence established security concerns under
Guidelines K, E, and M.  In evaluating Applicant’s case for mitigation, he stated that the security
violations at issue occurred over a lengthy period of time and, given Applicant’s extensive
experience as an officer and contractor, such behavior casts doubt on his reliability, trustworthiness,
and judgment.  The Judge concluded that Applicant’s claims about (1) his lack of security training;
(2) improper classification of some of the documents; and (3) a general officer having authorized
him to place the documents on his computer lacked credibility.  He stated that Applicant’s security
violations were knowing and willful and, given his age, education, and experience, they have not
been mitigated.  In the whole-person analysis, the Judge made similar statements.  He also noted
Applicant’s attempts to conceal his violations by deleting the files, concluding that these attempts
aggravated the seriousness of the conduct. 
Discussion
Applicant argues that the Judge’s findings of fact contained errors.  He contends, inter alia,
that the investigators never found the “rogue transmitter” that they had been seeking, that the
favorable resolution of the criminal investigation demonstrated that Government officials had no
proper basis to launch an investigation to begin with, that investigators interrupted only one meeting
rather than two, etc.  However, the record evidence, in particular the investigative summaries
contained in Government Exhibit (GE) 3, provides no reason to question the Judge’s essential
findings of security concern–that Applicant stored classified information on a personal computer
without proper authorization and that he attempted to avoid detection by deleting the files before
handing the computer over to investigators.1  See, e.g., ISCR Case No. 09-05399 at 3 (App. Bd. Jan.
11, 2011).  
To the extent that Applicant is contending that the Judge failed to consider evidence
favorable to him, a Judge is presumed to have considered all of the evidence in the record.  See, e.g.,
ISCR Case No. 10-07080 at 2 (App. Bd. Oct. 12, 2011).  Applicant’s arguments are not sufficient
to rebut that presumption.    
Applicant contends that the Judge erred in his credibility determinations.  He contends that
the Government rebuttal witness, who had conducted the investigation against him, was not
competent in the execution of his duties; did not understand significant aspects of the security
process, such as the distinction between a security breach and a security compromise; and that his
testimony was not worthy of belief.  
We have considered this witness’s testimony in light of the record as a whole.  Contrary to
Applicant’s assertions, the witness’s testimony was detailed and internally consistent, and it was not
discredited by cross-examination.  It was consistent with other evidence contained in the various
investigative summaries provided by the Government.  The fact that the witness and his colleagues
2“[Judge]: I need to interrupt. [Applicant]: Yes, sir. [Judge]: And I want you to concentrate on the issue at hand,
which is the documents . . . and how did you get them . . . You have very interesting stories . . . and I would like to hear
them, but I want to make sure whether I give you a fair opportunity to tell me . . . how the documents get there, what did
you do about them . . . and why I should give you a security clearance.”   Tr. at 71.  
3A summary of information contained in GE 3 reflects that Applicant admitted to investigators that he had
loaded classified material onto his laptop, stating that he had relied upon his judgment to determine whether the material
posed a risk or not.  This is not apparently consistent with his testimony that he did not know that the files were on his
computer when he had connected to the internet.  Tr. at 113.  It is also inconsistent with Applicant’s response to the SOR,
at p. 13, in which he states that NATO personnel transferred classified files to his computer without Applicant’s
knowledge of the files’ classification.  The summary of information in GE 3 also avers that Applicant had informed
investigators that he had registered his computer when, as they later discovered, he had in fact not done so.  We note
other support for the Judge’s negative credibility determination.  Applicant provided no corroboration for his claim that
a Belgian general authorized him to store classified information on his personal computer.  Moreover, despite evidence
of Applicant’s having held a clearance for many years and his annual training regarding security matters, he was found
to have possessed hard copies of classified documents at his residence without authorization to do so.  “Q: You didn’t
have any sort of approved, under the regulations, intruder detection system, or anything in your home, for classified
information?  A: I have a . . . guard dog, which I consider to be a pretty formidable counter-intrusion device.”  Tr. at 155.
5
ultimately discovered no evidence that Applicant was spying does not undermine the legitimacy of
the investigation itself or of the witness’s discharge of his responsibilities.  Furthermore, Applicant’s
arguments rely to an extent on application of an exclusionary rule.  Such a rule, which derives from
criminal proceedings, is not applicable in DOHA proceedings, which are civil in nature.  See, e.g.,
ISCR Case No. 02-12199 at 6 (App. Bd. Aug. 8, 2005) and ISCR Case No. 97-0184 at 2 (App. Bd.
Jun. 16, 1998).  At most, Applicant’s arguments might affect the weight to be assigned to the
Government’s evidence.  See, e.g., ISCR Case No. 02-05854 at 4 (App. Bd. Apr. 15, 2004).  
We also construe Applicant’s brief as challenging the Judge’s conclusion that Applicant’s
presentation was, in many respects, not credible.  However, this conclusion is based upon a
reasonable interpretation of the record.  Applicant’s testimony was often rambling, and it sometimes
veered significantly from the essential issues in the case.2  Moreover, the record contains evidence
of inconsistent statements by Applicant, which also support the Judge’s conclusion.3  In light of the
above, Applicant has not overcome the deference owed to the Judge’s credibility determinations.
See Directive ¶ E3.1.32.1.  See ISCR Case No. 08-01075 at 4 (App. Bd. Jul. 26, 2011).  
Applicant also contends that the Government failed to meet its burden of production.  In a
DOHA hearing, the Government’s burden is to present substantial evidence regarding any
controverted allegation.  Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”
Directive ¶ E3.1.32.1.  See ISCR Case No. 08-06859 at 4 (App. Bd. Oct. 20, 2010).  In this case, the
Government presented substantial evidence of  the security-significant conduct alleged in the SOR.
Although Applicant disagrees with the weight which the Judge assigned to the evidence, he has not
demonstrated that Judge erred in concluding that the case raised security concerns or in evaluating
the case in light of Applicant’s burden of persuasion as to mitigation.  See, e.g., ISCR Case No. 09-
07139 at 2 (App. Bd. Sep. 13, 2011).  
6
Once it is established that an applicant has committed security violations, he or she has a
“very heavy burden” of persuasion that he or she should have a clearance.  Security violations
“strike at the heart of the industrial security program.”  ISCR Case No. 09-00274 at 2 (App. Bd. Dec.
8, 2010).  The record supports a conclusion that the Judge examined the relevant data and articulated
a satisfactory explanation for the decision, “including a ‘rational connection between the facts found
and the choice made,’” both as to the mitigating conditions and the whole-person factors. Motor
Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  The
Judge’s adverse decision is sustainable on this record.  “The general standard is that a clearance may
be granted only when ‘clearly consistent with the interests of the national security.’”  Department
of the Navy v. Egan, 484 U.S. 518, 528 (1988).  See also Directive, Enclosure 2 ¶ 2(b):  “Any doubt
concerning personnel being considered for access to classified information will be resolved in favor
of the national security.”
Order
The Judge’s adverse security clearance decision is AFFIRMED.  
Signed: Michael Y. Ra’anan            
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                       
James E. Moody
Administrative Judge
Member, Appeal Board