1 
 
                                                              
                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 10-06328 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Phillip J. Katauskas, Esquire, Department Counsel 
For Applicant: John F. Mardula, Esquire 
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, Thomas M., Administrative Judge: 
 
Based on a review of the pleadings, exhibits, and testimony, eligibility for access 
to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on April 28, 2010, to obtain a security clearance required for employment with a 
defense contractor. After an investigation conducted by the Office of Personnel 
Management (OPM), the Defense Office of Hearings and Appeals (DOHA) issued an 
interrogatory to Applicant to clarify or augment potentially disqualifying information in his 
background. After reviewing the results of the background investigation and Applicant's 
response to the interrogatory, DOHA could not make the preliminary affirmative findings 
required to issue a security clearance. On March 17, 2011, DOHA issued Applicant a 
Statement of Reasons (SOR) detailing security concerns arising from his use of 
information technology systems (Guideline M), personal conduct (Guideline E), and 
financial considerations (Guideline F). 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 
2 
 
the adjudicative guidelines (AG) effective in the Department of Defense on September 
1, 2006. Applicant received the SOR on April 5, 2011. 
 
 The SOR alleges that Applicant was terminated by a previous employer for 
failure to comply with rules, procedure, guidelines, and regulations pertaining to 
information technology systems for use of Government furnished computers, adding 
unauthorized software to Government owned computer systems, accessing, viewing, 
and storing pornographic material on a Government furnished computer, and attempting 
to cover-up his improper use of the computer equipment. (SOR 1. a, and 2.a) Applicant 
answered the SOR on June 21, 2011. He admitted in part and denied in part the 
allegations with explanation. The SOR also sets forth 13 allegations of delinquent debts. 
(SOR 3.a to 3.m) Applicant denied these allegations in part. He admitted he had 
delinquent debts, but stated that the debts were paid or being paid. Applicant requested 
a hearing. Department Counsel was prepared to proceed on September 1, 2011, and 
the case was assigned to another administrative judge on September 9, 2011. DOHA 
issued a Notice of Hearing on September 16, 2011, scheduling a hearing for October 
19, 2011. I was assigned the case on the day of the hearing and convened the hearing 
as scheduled. The Government offered four exhibits, which were marked and admitted 
into the record without objection as Government Exhibits (Gov. Ex.) 1 through 4. 
Applicant and one witness testified. Applicant offered 19 exhibits which I marked and 
admitted into the record without objection as Applicant Exhibits (App. Ex.) A through S. I 
kept the record open for Applicant to submit additional documents. Applicant timely 
submitted two additional documents which I marked and admitted into the record 
without objection as Applicant Exhibits T and U. Department Counsel had no objection 
to the admission of the additional documents. (Gov. Ex. 5, Memorandum, dated 
November 1, 2011) DOHA received the transcript of the hearing (Tr.) on October 25, 
2011. 
 
Findings of Fact 
 
 Applicant’s admissions to portions of the SOR allegations are included in my 
findings of fact. After a thorough review of the pleadings, transcript, and exhibits, I make 
the following essential findings of fact.   
 
 Applicant is 38 years old and has worked as an information assurance security 
manager for a defense contractor since April 2010. He received a bachelor’s degree in 
internet technology in 2005, and is studying for a master’s degree in information 
technology. He served four years on active duty in the Marine Corps and four years in 
the Marine inactive reserves. He is married with four children. His monthly net pay is 
$7,156, with monthly expenses of $3,000, leaving $4,100 monthly in discretionary 
funds. His wife works part time. Applicant and his wife are current with their bills and 
taxes. (Tr. 41-45, 98-99, 109-111; Gov. Ex. 1, e-QIP, dated April 28, 2010; Gov. Ex. 4, 
e-QIP pages 6-10, dated March 2, 2007; App. Ex. R, Pay Stub, dated June 6, 2011)  
 
 After leaving active duty with the Marine Corps, Applicant was employed by a 
Government contractor working at a Government agency location from November 1999 
until March 2000, when the contract was completed. From March 2000 until March 
3 
 
2009, he was employed by the same contractor working as a network administrator at a 
defense agency. He was terminated by the defense contractor for violation of its policy 
and the Government policy concerning computer use. He was unemployed from March 
2009 until September 2009. During this time, he took a computer course to be certified 
as an information systems security professional. He was then employed as an 
information systems security officer by a private firm from September 2009 until April 
2010. He commenced employment with his present defense contractor employer on 
April 2010 as a senior information systems security officer. (Tr. 40-43, 52-54; Gov. Ex. 
1, e-QIP, dated April 28, 2010: See also Response to SOR, dated June 21, 2011, 
Attachments B through F) 
 
 The SOR alleges and a credit report establishes medical delinquent debts of 
$440 (SOR 3.a), $777 (SOR 3.b), $122 (SOR 3.c), $79 (SOR 3.d), $15 (SOR 3.e), $62 
(SOR 3.f), $23 (SOR 3.g), $132 (SOR 3.h), $30 (SOR 3.i), and $30 (SOR 3.j); a credit 
account with a retail store charged off for $165 (SOR 3.k); a credit card debt charged off 
for $5,523 (SOR 3.l); and a mortgage foreclosure for $308,000 (SOR 3.m). (Gov. Ex. 3, 
Credit Report, dated January 5, 2011) 
 
 The medical debts were incurred for Applicant’s and his family members’ 
emergency medical treatment. Most of the bills were in his wife’s name. The employers’ 
medical plan at the time of treatment did not cover all their medical costs. Most of the 
bills were in his wife’s name. He was unaware of the debt until he received the SOR. He 
has since paid the medical debts at SOR 3.a, 3.d, 3.e, 3.f, 3.g, 3.h, 3.i, and 3.j. (Tr. 63-
72; App. Ex. F, Credit Statement, dated September 23, 2011; App. Ex. G, Bank 
Statement, dated June 9, 2011)  
 
 The medical debt at SOR 3.b for $777 is a remainder of a bill not completely 
covered by his present health insurance. Applicant makes monthly payments of $100 on 
this debt and the balance left at the time of the hearing was $377. He plans to pay the 
debt in full by the end of 2011. (Tr. 72-77, 79-80; App. Ex. H, Receipts, dated May 25, 
3011; App. Ex. I, Receipts, dated October 15, 2011)  
 
 Applicant disputes the medical debt at SOR 3.c because he is unsure what 
medical treatment caused the debt. He checked with the medical treatment facilities and 
providers he and his family use and they are unable to confirm the debts. He intends to 
pay the debt when he learns of the origin of the debt. (Tr. 77-79, 106-109) 
 
 The $160 delinquent debt to the retail store at SOR 3.k has been paid in full. (Tr. 
79-82; App. Ex. J, Bank Statement, dated March 15, 2011) The debt at SOR 3.l is for a 
credit card that Applicant used when he was unemployed. When he found employment, 
he negotiated a settlement of the debt for $2,500, and a payment plan. He paid $368 
monthly and the debt has been paid in full. (Tr. 82-87; App. Ex. K, Bank Payments, 
various dates; App. Ex. L, Creditor Statements, various dates; App. Ex. U, Bank 
Statement, dated October 1, 2011) 
 
 On April 18, 2005, Applicant purchased a house for $300,000 at the height of the 
house market. When he lost his job in 2009, he could not make the mortgage payments. 
4 
 
The balance on his account was $238,000. By this time, the house value had declined 
drastically to approximately $145,000. He attempted to negotiate a loan modification 
plan but since he was unemployed he was unable to arrange a plan. Applicant tried a 
short sale but the creditor would not permit a short sale. The creditor foreclosed the 
house and purchased it for $110,000. The creditor subsequently resold the house. The 
creditor is not seeking a deficiency judgment against Applicant. (Tr. 87-96; App. Ex. M 
through R, Real Estate Documents, various dates) 
 
 While working for the Government contractor in 2006, Applicant received both a 
company laptop computer and a Government furnished computer from his company. He 
knew the second laptop was a Government supplied computer. He used both laptops to 
connect to the Government run network as required for his work with the company for 
the Government agency. In 2006, he installed software on the company and 
Government computers to assist him in doing his job. He did not have permission to 
install the software.  
 
 He initially testified that in 2008, he used the company computer to view adult 
pornography from the Internet. He said he did not use the Government computer to 
view or download pornography. In his response to the SOR, Applicant again stated he 
used the company laptop to view the pornography. At the hearing in response to 
questions from his counsel, Applicant testified that he had a personal internal computer 
network at his home. He used a router to connect his personal desktop computer, 
company laptop computer, and Government laptop computer. He viewed pornography 
on his personal desktop computer. The viruses from the pornographic site infected his 
company and government laptops, thereby infecting the Government network. In 
response to questions from Department Counsel and me, Applicant stated he only 
viewed pornography on the desktop computer and the pornography migrated to the two 
laptops because they were connected on the internal network. He stated he never 
viewed pornography on the company or Government laptops and did not know until 
after the laptops were analyzed that the pornography had migrated to those computers. 
(Tr. 101-104, 111-119, 123-130) 
 
 The pornographic websites had various viruses in them which caused the 
Government computer network that he was connected to and working on to be infected. 
He never received instruction on what he could or could not do with the computers until 
he was terminated. He was not initially told the computes could not be used for personal 
business or that unauthorized software could not be loaded. He was never told he could 
not download software onto the computers even if the software was to enable him to do 
his job better for the company and the Government. He believed it was common 
practice in the company to download software onto the laptop computers to enable the 
employees to better do their job. He testified that it was common knowledge that you 
could not use the company or Government computers to view or download 
pornography. He was not provided a copy of the company policy concerning the use of 
unauthorized software until the day he was terminated. (Tr. 43-47; Response to SOR, 
dated June 21, 2011, at 2) 
 
5 
 
Applicant was required to bring the work-related computers into the information 
systems security officer since viruses were discovered on the Government network and 
his computer was suspected of being the source of the virus. Prior to bringing in the 
computers, he used the antivirus software on the computers to look for and remove any 
viruses. He testified that he was told by the systems security officer to run the antivirus 
software before bringing the computer into the office. He informed the information 
systems security officer that he ran the antivirus software before turning in the 
computers. He did not tell him that he had viewed pornography from the Internet. (Tr. 
47-49; Response to SOR, dated June 21, 2011, at 2-3) 
 
Applicant has not viewed pornography since he was terminated in March 2009. 
He has received counseling concerning pornography from his pastor. He realizes the 
effect viewing pornography had on his family so he has stopped viewing pornography. 
(Tr. 61-64) 
 
 Applicant’s co-worker testified that he has a computer program certificate and 
has been in the information technology business for over 30 years. He has worked as a 
web and database administrator for eight years at the company that fired Applicant. He 
has known Applicant for over six years both on the job and socially. At one time, 
Applicant was his supervisor. Applicant is very meticulous, structured, and detail 
oriented. He has never known Applicant to ignore rules or regulations. The co-worker 
never questioned Applicant’s reliability, judgment, or sense of responsibility. He has no 
concerns about Applicant’s managing classified information. (Tr. 18-23) 
 
 The co-worker is aware of the allegations against Applicant for loading 
unauthorized software onto the company computer. He testified that computer 
technicians like he and Applicant would try to find free and different software than 
provided on the computers to do their job correctly. The computer technicians would 
recommend to the Government agencies that certain software be standardized on the 
computers to assist them in doing the work for the agency. They were never told they 
could not load the non-standard software on the company or Government laptops.  
While he did not remember having specific instruction on what could be viewed on a 
company or Government laptop, it is common knowledge that pornography cannot be 
viewed or stored on either type of computer. The computer technicians received 
recurring training on the proper use of company or Government computers. (Tr. 23-26, 
29-40) 
 
 The witness also testified that Applicant explained to him how he downloaded 
pornography on his home network and it migrated to the company and Government 
laptops. He believes that Applicant properly took action to resolve his problems with 
pornography. (Tr. 26-28) 
 
 Applicant’s immediate supervisor for the last two years wrote that he has known 
Applicant for over nine years. Applicant is a valued member of their team and an 
extremely knowledgeable information technology professional. He is knowledgeable in 
many computer programs and applications and is their “go to” person. He highly 
recommends Applicant for access to classified information. (App. Ex. B, letter, undated) 
6 
 
 Applicant’s latest performance rating shows that Applicant achieved all of his 
goals and objectives. He demonstrates the understanding and commitment to the 
company’s code of business conduct. His overall rating was that he meets or exceeds 
some goals. (App. Ex. C, Rating, dated June 15, 2011) 
 
 The facility security officer for Applicant’s company wrote that he has known 
Applicant for over 18 months. Applicant is knowledgeable of the NISPOM and shows an 
understanding of security management of classified information. He has the required 
integrity, trustworthiness, and reliability to handle classified information. (App. Ex. D, 
Letter, dated June 20, 2011) 
 
 The Government employee that manages Applicant’s program wrote that 
Applicant is one of the most knowledgeable persons in some computer programs and 
applications. She has been very impressed with his knowledge and understanding of 
the system. Applicant is a responsible responsive member of the team. (App. Ex. E, 
Letter, dated June 19, 2011) 
 
 An individual who worked with Applicant at his former place of employment for 
approximately seven years wrote that Applicant is meticulous, organized, and 
hardworking. He believes Applicant to be trustworthy, reliable, and he has no doubts 
about Applicant’s ability to manage classified information. He understands the mistakes 
made by Applicant, but does not believe the mistakes reflect adversely on his ability to 
handle classified information. (App. Ex. T, Letter, dated October 31. 2011) 
 
 Applicant’s testimony at the hearing concerning the viewing and downloading of 
pornography was different from the information he provided to security investigators and 
in his answer to the interrogatory. (Gov. Ex. 2, dated December 7, 2010). In both of 
these documents, he stated he used either the company or Government laptop to view 
the pornography. In his response to the SOR, Applicant stated he used the company 
computer to view the pornography. At the hearing, however, Applicant stated for the first 
time that he had a home internal network system with a personal desktop computer 
connected through a router to the two laptops. He stated he viewed the pornography on 
his personal desktop computer and the viruses in the pornography migrated to the 
laptops because the computers were connected. I find his testimony at the hearing not 
credible. It was common knowledge that viewing and downloading pornography on the 
company or Government computer was a violation of rules and regulations. However, it 
is not a violation of company or Government policy to view adult pornography on your 
own personal home computer. His testimony at the hearing was more favorable to him 
than the information he had previously provided. I find that his testimony was not 
credible and an attempt to put his actions in the most favorable position for him. 
Applicant’s hearing testimony was so inconsistent from his previous testimony so that 
the only conclusion to be drawn is he failed to provide truthful and candid answers and 
information during the security clearance process.  
 
 
 
 
7 
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the revised Administrative Guidelines. In addition to 
brief introductory explanations for each guideline, the adjudicative guidelines list 
potentially disqualifying conditions and mitigating conditions, which are useful 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. Likewise, I have avoided drawing inferences 
grounded on mere speculation or conjecture. 
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is 
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, 
or mitigate facts admitted by applicant or proven by department counsel. . .” The 
applicant has the burden of persuasion to 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 the 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. 
 
Analysis 
 
Financial Considerations 
 
 Failure or inability to live within one’s means, satisfy debts, and meet financial 
obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by 
rules and regulations, all of which can raise questions about an individual’s reliability, 
8 
 
trustworthiness, and ability to protect classified information. An individual who is 
financially overextended is at risk of having to engage in illegal acts to generate funds. 
(AG ¶ 18) Similarly, an individual who is financially irresponsible may also be 
irresponsible, unconcerned, or careless in their obligations to protect classified 
information. Behaving responsibly or irresponsibly in one aspect of life provides an 
indication of how a person may behave in other aspects of life.  
 
 A person’s relationship with his creditors is a private matter until evidence is 
uncovered demonstrating an inability or unwillingness to repay debts under agreed 
terms. Absent evidence of strong extenuating or mitigating circumstances, an appellant 
with a history of serious or recurring financial difficulties is in a situation of risk 
inconsistent with the holding of a security clearance. An appellant is not required to be 
debt free, but is required to manage his finances in such a way as to meet his financial 
obligations. Appellant’s delinquent debts, as established by a credit report, are a 
security concern. The evidence is sufficient to raise security concerns under Financial 
Considerations Disqualifying Conditions (FC DC) AG ¶ 19(a) (inability or unwillingness 
to satisfy debts), and (FC DC) AG ¶ 19(c) (a history of not meeting financial obligations). 
Appellant accrued delinquent debt when he was removed from his job and unemployed 
for over six months. He had sporadic employment thereafter for another six months. He 
was unaware that his health insurance did not cover all of his medical expenses and he 
incurred unpaid medical bills.   
 
The case file provided sufficient evidence to establish the disqualifying conditions 
as required in AG ¶¶ 19(a) and 19(c). The burden is for Applicant to produce evidence 
to rebut, explain, extenuate, or mitigate the security concerns under financial 
considerations. The burden to refute an established allegation or prove a mitigating 
condition never shifts to the Government. Applicant raised conditions that may mitigate 
the security concern. 
 
 I considered Financial Consideration Mitigating Condition (FC MC) ¶ 20(a) (the 
behavior happened so long ago, was so infrequent, or occurred under such 
circumstances that it is unlikely to recur and does not cast doubt on the individual's 
current reliability, trustworthiness, or good judgment), and FC MC ¶ 20(b) (the 
conditions that resulted in the financial problems were largely beyond the person’s 
control (e.g. loss of employment, a business downturn, unexpected medical emergency, 
or a death, divorce, or separation) and the individual acted responsibly under the 
circumstances). These mitigating conditions apply. Applicant incurred delinquent 
medical debt because he was not aware that his health insurance did not pay all of his 
family medical expenses. The delinquent medical debts were small co-payments or 
expenses not covered by his company’s health insurance program. Most of the bills 
were in his wife’s name and he was unaware of them.  
 
He also incurred delinquent debt when he was terminated from his job for 
misconduct in March 2009. He was unemployed for about six months and then had 
some employment for the next six months before finding permanent employment in April 
2010. During the time of low or no employment, he used credit cards to meet expenses 
and also could not make his mortgage payments. Applicant acted responsibly to resolve 
9 
 
his delinquent debts. He paid or is paying his medical debts, has settled and paid his 
credit card debts, and his mortgage has been resolved by foreclosure. His past 
delinquent debts do not cast doubt on his current reliability, trustworthiness, or good 
judgment, since the delinquent debts are paid or being paid,  
 
 I considered FC MC AG ¶ 20(d) (the individual has initiated a good-faith effort to 
repay the overdue creditors or otherwise resolve debts). For FC MC AG ¶ 20(d) to 
apply, there must be an “ability” to repay the debts, the “desire” to repay, and “evidence” 
of a good-faith effort to repay. A systematic method of handling debts is needed. Good-
faith means acting in a way that shows reasonableness, prudence, honesty, and 
adherence to duty or obligation. Applicant paid eight medical debts in full, disputed 
another, and has almost completed payment of the last medical debt. He paid a debt to 
a retail store in full, and settled and paid a credit card debt. He took reasonable action in 
attempting to resolve his mortgage issue. He could not pay his mortgage because of 
unemployment. The house lost value in the housing crisis and he could not sell it. He 
sought a mortgage modification or a short sale but was unsuccessful because the 
creditor did not agree. His house was foreclosed and resold by the mortgage company. 
He has no liability for the mortgages. He is current with his taxes and his current debts 
are being paid as agreed. He has sufficient discretionary income to meet his financial 
obligations. Applicant established that he adhered to his financial duty to resolve his 
delinquent debts by taking reasonable, prudent, and honest actions to resolve his debts. 
Since he is current with the payment of his bills and the delinquent debts in the SOR are 
resolved, he established a good-faith effort of debt resolution.  
 
I considered AG ¶ 20(e) (the individual has a reasonable basis to dispute the 
legitimacy of the past due debt which is the cause of the problem and provides 
documented proof to substantiate the basis of the dispute or provides evidence of 
actions to resolve the issue). Applicant paid or is paying all but one of his delinquent 
medical debts. He tried but has not learned the origin of the unresolved debt. He 
contacted all of the medical facilities or providers that he and his family use but did not 
receive any billing information. When he has sufficient information, he will pay the debts. 
He has a basis for his dispute and has taken action to resolve the dispute. By acting 
responsibly towards his debts and establishing his debts are under control, Applicant 
presented sufficient information to mitigate security concerns for financial 
considerations.  
 
Personal Conduct (Guideline E) 
Use of Information Technology Systems (Guideline M) 
 
 The security concerns for personal conduct and use of information technology 
systems in this case are raised from the same incident. The security concerns for both, 
as well as the disqualifying conditions and mitigating conditions, are so similar that they 
will be discussed together. Personal conduct involving questionable judgment, 
untrustworthiness, unreliability, 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 
10 
 
security clearance process. (AG ¶ 15) Noncompliance with rules, procedures, 
guidelines, or regulation 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 ¶ 38) 
 
 Applicant was provided two laptop computers for his work by his employer. One 
computer was from the company, the other was from the Government agency his 
company supported. His employer and the Government agency found viruses in their 
database and traced the source to the computers provided Applicant. Applicant was 
required to bring in the computers for examination and analysis. Before bringing in the 
computers, he ran the antivirus software on the computers to erase any viruses. The 
computer review discovered that Applicant had loaded unauthorized software on the 
computers, and used the computers to view and download adult pornography. It was a 
violation of his company’s and the Government agency’s policy to load unauthorized 
software or view pornography on the computers. His actions in loading unauthorized 
software, viewing pornography, and attempting to erase the viruses raise personal 
conduct disqualifying condition AG ¶ 16(c) (credible adverse information in several 
adjudicative issue areas that is not sufficient for an adverse determination under any 
other single guideline, but which, when considered as a whole, supports a whole-person 
assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, 
unwillingness to comply with rules and regulations, or other characteristic that the 
person may not properly safeguard protected information); AG ¶ 16(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 personals professional or community standing …: and AG ¶ 16 (f) 
(violation of a written or recorded commitment made by the individual to the employer 
as a condition of employment. It also raises  disqualifying conditions under use of 
information technology systems AG ¶ 40(e) (unauthorized use of government or other 
information technology system); and AG ¶ 40(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). 
 
The case file provided sufficient evidence to establish the disqualifying conditions 
as required in AG ¶¶ 16(c), 16(e), 16(f), 40(e), and 40(f). Again, the burden is for 
Applicant to produce evidence to rebut, explain, extenuate, or mitigate the security 
concerns under use of information technology systems and personal conduct. The 
burden to refute an established allegation or prove a mitigating condition never shifts to 
the Government. Applicant raised conditions that may in part mitigate the security 
concerns 
 
 There is no question that Applicant downloaded software onto the company and 
Government provided laptops. There is also no doubt that it was against the company’s 
and Government rules and regulations to download the software onto the laptops. 
However, Applicant and a witness testified that it was normal practice to load software 
11 
 
onto the laptops to assist them in performing their functions under the Government 
contract. Both men testified and established that they received no instructions directly 
from the company or the Government not to load the software unless authorized. In fact, 
there may be some tacit understanding that software could be loaded onto the 
computers and the company and Government informed to determine if it would be best 
to load the software as part of the normal process. He was not advised of the company 
policy until the day he was terminated. Applicant established that he did not knowingly 
violate the company and Government policy against loading unauthorized software 
because he believed the practice was permissible. He was instructed to run the 
antivirus software before returning the computers. It was not an attempt to hide his 
actions in regard to the unauthorized software or the pornography. 
 
 However, Applicant did not provide candid and truthful information concerning his 
violation of the rules against viewing pornography. He viewed the adult pornography on 
the company and Government computers, and not his personal home desktop 
computer. He was not truthful at the hearing when he testified that he did not view or 
download the pornography on his company or Government laptop in violation of the rule 
and regulations. I find against Applicant as to personal conduct and use of information 
technology systems for viewing and downloading pornography using either the 
company’s or Government’s laptop computers in violation of rules and regulations. I 
also find against Applicant as to personal conduct for not being truthful and candid in his 
testimony at the hearing. 
 
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 the Applicant’s 
conduct and all the 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.       
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. I considered that Applicant served 
four years on active duty in the Marine Corps and four years in the Marine inactive 
reserves. I also considered the testimony and opinions of Applicant’s supervisors, 
12 
 
friends, and a co-worker as to his reliability, trustworthiness, and ability to manage 
classified information.  
 
Applicant presented sufficient information to meet his burden to refute, explain, or 
mitigate the security concern for financial considerations. His loading of unauthorized 
software on the company and Government laptops was unknowing. However, he did not 
present sufficient information to refute, explain, or mitigate security concerns for 
personal conduct and use of information technology systems for viewing and 
downloading adult pornography on company and government laptops in violation of 
company and Government rules. At the hearing, he was not candid about his actions 
when he testified that he viewed the pornography on his personal desktop computer 
and not the company or Government laptops. He did not meet his burden to show his 
violation of the rules and regulations concerning use of information technology systems 
do not reflect adversely on his reliability, honesty, trustworthiness, and good judgment. 
For all these reasons, I conclude Applicant has not mitigated the security concerns for 
personal conduct and use of information technology systems. Overall, the record 
evidence leaves me with questions and doubts as to Applicant’s judgment, reliability, 
and trustworthiness. Access to classified information is denied. 
 
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:   AGAINST APPLICANT 
 
  Subparagraph 1.a:   Against Applicant 
 
 Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 2.a:   Against Applicant 
 
 Paragraph 3, Guideline F:   FOR APPLICANT 
 
  Subparagraphs 3.a – 3.m:  For Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge