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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-08390
)
)
Applicant for Security Clearance )
Appearances
For Government: David Hayes, Esquire, Department Counsel
For Applicant: Sheldon I. Cohen, Esquire  
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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 questions and
doubts as to Applicant’s eligibility and suitability for a security clearance, as he has not
mitigated the Government’s security concerns. Applicant’s eligibility for access to
classified information is denied.
Applicant signed an Electronic Questionnaire for Investigations Processing (e-
QIP) version of a security clearance application (SF-86) on October 21, 2009. The
Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of
Reasons (SOR) on February 2, 2011, 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. 
A pre-hearing telephone conference held on October 12, 2011, resulted in the denial of Applicant’s Motion1
to bar the admission of GE 5. The Government did agree to strike the allegation in SOR Paragraph 2.b.
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Applicant answered the SOR in writing on February 10, 2011, and requested a
hearing before an administrative judge. I received the case assignment on July 25,
2011. DOHA issued a notice of hearing on October 14, 2011, and I convened the
hearing as scheduled on November 17, 2011. The Government offered five exhibits
marked as GE 1 through 5, which were admitted into evidence over objection.
Applicant testified, presented two witnesses, and submitted exhibits marked as AE A1
through I, which were admitted into evidence without objection. DOHA received the
transcript of the hearing (Tr.) on November 29, 2011.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a,
and 2.b of the SOR. He denied the other allegations. 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 60 years old. He attended college but did not obtain his
undergraduate degree. Applicant has never married, and he has no children. He served
on active duty in the military from 1969 until 1979. (AE A) Applicant served in the Navy
reserves from July 1988 to May 1998. (AE B) He did not hold a security clearance in the
military. (Tr. 71) Applicant is currently on administrative leave from his job. (GE 4)
He has served in the assurance security field since 1997. He  held a top secret
clearance in 2003, and had access to Sensitive Compartmented Information (SCI) in
2005. His security clearance was suspended in 2008 because he misused a
government laptop to view pornographic web sites. (GE 5) He did not appeal the
decision because he did not understand the process. (Tr. 125)
Applicant was assigned to various agencies from 2003 until 2009. His job
responsibilities involved trouble shooting systems. (Tr. 96) He described his role as
monitoring all activity on a computer system. He was also an accreditation engineer
who made certain the systems adhered to a client’s security policy. (Tr. 100) Applicant
elaborated that he used an “intrusion detection system” for insider threat and outsider
threat. (Tr. 105)
Applicant explained at the hearing that he detected pornography on an agency’s
computer system as part of his duties. (Tr. 105) He would then use tools to block it. If a
malicious site was found, a report was written for the client. Thus, he explained that
opening some sites that were designated as pornographic was a part of his job. (Tr.
107) 
In 2004, Applicant underwent a series of polygraph tests during security
processing. A letter addressed to Applicant from a Senior Adjudication Officer, states
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that as a result of Applicant’s statements that he viewed adult pornography on
government computers from 1996 until 2006, he was denied access to classified
information on September 12, 2008. The letter further states that Applicant advised that
he regularly viewed images of nude females between the ages of 11 and 16 on his
home computer. (GE 2) Case notes from Applicant’s file report that Applicant admitted
he would routinely view pornography via the Internet on an average of two times per
week at work as the rules were lax and there were no security policies. This was for the
period October 1996 until October 2000. From October 2001 until February 2004,
Applicant was deterred from pornographic activity due to “better computer and internal
security measures, as well as cameras that monitored activities.” (GE 5) The report
concludes that Applicant stopped viewing pornography on a government computer. He
knows it is wrong. 
Finally, the case notes that are referenced above note that Applicant advised that
he had about 50 images of underage pornography on his home computer. The children
are hugging or kissing but not having sex according to Applicant. The same report notes
that Applicant advised that until 2006, he visited teen chat rooms and frequently
interacted sexually with other members. He also stated that in 2004, he was viewing
approximately 20 images of naked 13 to 16 year olds per month. (GE 5)
At the hearing, Applicant testified that he has a number of computers in his
home. His girlfriend testified that he has possibly four computers in his home. (Tr. 38)
He views chat rooms on dating sites. He used it to interact with people his age. He
acknowledged that some of the emails that are sent in a chat room contain nude
pictures of females. (Tr. 113) He was adamant that he does not solicit emails with
pictures of nude females. He was not sure if any of the emails had nude pictures of
females under the age of 16, but he stated that he did not seek any of those sites. He
denied entering any teen chat rooms. 
In 2010, Applicant denied that he ever advised investigators that he viewed
pornography except as part of his job duties. He denied that he regularly viewed images
of nude females between the ages of 11 and 16. (GE 3) He maintained that he viewed
pornography as part of his job. In essence, he denied the 2007 statements (admissions)
that were attributed to him in the interviews and polygraphs that resulted in his 2008
suspension. At the hearing, Applicant again stated that the report/case notes from 2008
were falsifications and fabrications.  
Applicant’s hobbies include a motorcycle club. He spends his weekends with his
friends in the club. His girlfriend usually accompanies him. He is active in volunteer
activities for the community through the club. (AE H) Applicant tours schools and talks
to students about motorcycle riders. He helps with veterans’ projects. He is also an
Assistant Director for a veterans’ organization. (AE F)
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. 
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Applicant’s significant other testified that she has known Applicant since July
2007. They see each other every weekend. (Tr. 29) She accompanies Applicant on his
motorcycle rides with his club. She describes Applicant as a quiet gentleman. She also
said he is a “nervous person.” Applicant has met his friend’s children. They have gone
on vacation together. She testified that she believed the issue at hand was the result of
a polygraph that “had gone bad.” (Tr. 33) She elaborated that she knew Applicant was
charged with viewing pornography at a work site. She has never seen Applicant at the
computer viewing pornography nor has she known him to engage in chat rooms with
teenagers. She testified that she would end the relationship if she believed he engaged
in such behavior. Until the SOR was issued in July 2011, Applicant’s friend had no
knowledge of the allegations.
A friend from Applicant’s motorcycle club testified that he has known him for
about five years. He described Applicant’s role in the club. The club does charity rides
for local groups. There are a variety of activities that the club engages in, such as
offering picnics or a holiday party. Applicant volunteers much of his time to the club.
Applicant’s friend was vague about his knowledge of the SOR allegations. He knew that
the issue involved concerned looking at “something” more than he should have. (Tr. 60)
He describes Applicant as a good person who is trustworthy. (Tr. 61)
Applicant presented a letter of recommendation from a colleague who holds a
security clearance and has known Applicant for four years in a volunteer organization.
He is aware of the allegations in the SOR. He attests to Applicant’s integrity. He has
never heard Applicant mention pornography or make a sexual joke. (AE I)
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.
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Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An
applicant has the ultimate burden of persuasion for obtaining a favorable security
decision.
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk an applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline 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 admitted that he viewed pornographic websites on a government
computer while at work from approximately 1996 until 2006. 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. 
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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.
Applicant’s 2010 denial that he made the admissions in 2007 are not credible. He
was denied a clearance based on the viewing of pornographic sites. The last viewing
was in 2006. While this is five years ago, Applicant does not accept any responsibility
for his actions. He has no insight into his behavior. His misconduct casts doubt on his
current reliability. His conduct is not 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
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regulations, or other characteristics indicating that the person may not
properly safeguard protected information;
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the
person may not properly safeguard protected information. This includes
but is not limited to consideration of:
(1) untrustworthy or unreliable behavior to include breach of
client confidentiality, release of proprietary information,
unauthorized release of sensitive corporate or other
government protected information:
(2) disruptive, violent, or other inappropriate behavior in the
workplace; 
(3) a pattern of dishonesty or rule violations; and,
(4) evidence of significant misuse of Government or other
employer's time or resources;
(e) personal conduct, or concealment of information about one's conduct,
that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person's
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 computer from 1996 until 2006. He also admitted to entering teen
chat rooms and regularly viewed images of nude females between the ages of 11 and
16 on his home computer. As a result of this conduct, his clearance was suspended.
He exercised poor judgment. The behavior is not appropriate. AG ¶¶ 16(c), 16(d), and
16(e)(1) apply.
AG ¶ 17 provides conditions that could mitigate security concerns:
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(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was
caused or significantly contributed to by improper or inadequate advice of
authorized personnel or legal counsel advising or instructing the individual
specifically concerning the security clearance process. Upon being made
aware of the requirement to cooperate or provide the information, the
individual cooperated fully and truthfully;
(c) the offense is so minor, or so much time has passed, or the behavior is
so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual's reliability,
trustworthiness, or good judgment;
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable
reliability; and
(g) association with persons involved in criminal activity has ceased or
occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules
and regulations.
Applicant’s conduct is not mitigated. He is not credible when he denies the
admissions he made in 2007. It is not believable that the agency case notes are
fabrications or falsifications. His serious misconduct casts doubt on his reliability and
trustworthiness under these circumstances. He is subject to exploitation based on his
behavior. He has not mitigated the personal conduct concerns.  
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
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individual’s age and maturity at the time of the conduct; (5) the extent to
which participation is voluntary; (6) the presence or absence of
rehabilitation and other permanent behavioral changes; (7) the motivation
for the conduct; (8) the potential for pressure, coercion, exploitation, or
duress; and (9) the likelihood of continuation or recurrence. 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a
security clearance must be an overall commonsense judgment based upon careful
consideration of the guidelines and the whole-person concept. The decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct,
but on a reasonable and careful evaluation of all the evidence of record to decide if a
nexus exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant
has worked as a contractor for many years. He served in the military and retired
honorably. He has received awards and recommendations. He is single, but in a
significant relationship. He volunteers and does community work.
Applicant admitted during a security process investigation that he viewed
pornographic websites on government computers while at work from about 1996 until
2006. However, his explanation that it was part of his job duties is not credible. He
admitted during a 2007 polygraph to the allegations in the SOR. His denials in 2010 and
at the hearing are not persuasive. He has not shown candor or accepted responsibility
for his behavior. This is serious and spans a ten-year period.  He has no insight into his
behavior. He does not accept responsibility for the behavior.  
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has not mitigated the security concerns arising from his misuse of
information technoloy 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: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
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Subparagraph 2.a: Against Applicant
Subparagraph 2.b: WITHDRAWN
Subparagraph 2.c: Against Applicant
Subparagraph 2.d: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is  not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is denied.
                                                              
Noreen A. Lynch
Administrative Judge