KEYWORD: Guideline K; Guideline E
DIGEST: Once it has been established that an applicant has committed a security violation, that
applicant has a very heavy burden of demonstrating that he or she should be entrusted with
classified information.  Such violations strike at the heart of the industrial security program and
the Judge must review any claim of reform or rehabilitation with strict scrutiny.  The Judge’s
failure to recognize and apply this standard was error.  Favorable decision reversed.
CASENO: 10-07070.a1
DATE: 04/19/2012
  
DATE: April 19, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-07070
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Fahryn Hoffman, Esq., Department Counsel
FOR APPLICANT
Pro se
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 8, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline K (Handling Protected
Information) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan.
2, 1992, as amended) (Directive).  Applicant requested a hearing.  On December 12, 2011, after the
hearing, Administrative Judge Mary E. Henry granted Applicant’s request for a security clearance.
Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Department Counsel raises the following issues on appeal: (a)  whether the Judge’s Decision
is unsupported by the record evidence; (b) whether the Judge misapplied the Adjudicative
Guidelines; and (c) whether the Judge analyzed the SOR allegations in an impermissible, piecemeal
fashion.  For the following reasons, the Board reverses the Judge’s favorable security clearance
determination.
The Judge made the following pertinent findings of fact:
Applicant is 58 years old, and had worked in her position with a defense contractor for 18
years.  She served in the military from 1972 to 1974 and from 1979 to 1990.   
On August 15, 2005, Applicant received an oral warning from her employer for not
following proper procedures when entering information into a system, not paying attention to
processing data and following prescribed procedures, and not filling out a log book correctly.  No
sensitive information was compromised as a result of this incident.  
In February 2006, during a work day, Applicant left her work station to take a break.  She
left sensitive information about an individual in a folder on her desk under the computer keyboard
and closed the door, asking a co-worker to make sure no one entered the room.  When Applicant
returned to her office five minutes later, she discovered that the folder and the information she had
placed under the keyboard were gone.  Another employee had entered the room through another
door and, after searching, discovered the folder with the information.  The office did not have a safe
or other locked area to place or store such materials.  After the incident, management placed a safe
in the room to store equipment and data.  Managers prepared an employee disciplinary report dated
February 9, 2006, which showed written warnings and six months of probation for Applicant.  The
report was not signed by management, therefore it does not constitute a valid disciplinary report. 
On February 24, 2009, Applicant left her office in a panic after being told that her elderly
mother had passed out, had fallen and hit her head, and was being taken to the hospital.  She drove
away from her office without securing her seat belt and was given a ticket by a gate guard for the
infraction.  Management prepared an employee discipline report, dated March 31, 2009, for a safety
violation, which was her first warning for a safety violation.  
On a date in April 2009, Applicant reported to work at 3:00 a.m. She was assigned to a two-
part program to take photographs.  One program involved classified photographs and one program
involved unclassified photographs.  Applicant signed out a blank classified card which was to be
inserted in a camera and on which photographs were to be taken.  Applicant also had a blank
3
unclassified card for unclassified photos.  At the work site it was determined that Applicant would
only need to take unclassified photos.  She removed the classified card from her camera without
taking any photographs and placed it in her purse.  At the end of a 13 hour work day, Applicant
returned to her office, removed the unclassified card from her camera, and placed it in a process bin.
She did paperwork and then went home more than six hours after her usual 10-hour work day.
While asleep that evening, she received a telephone call from work asking about the classified card.
Initially, she denied having a classified card, but then remembered that she had signed one out.  She
dressed and returned to her office before 5:00 a.m. with the card.  At all times, the blank
classification card remained within her positive control and no classified information was
compromised.  The next day, Applicant’s supervisor removed her from the program.  He also
advised her that he had determined that as long as there was no data on the card, there was no
compromise of national security.  He also told her that as long as she had positive control over the
card, which she did, the government would not issue a report if the card was returned in a timely
manner.  Her employer’s administrative security clerk prepared an incident report.  Applicant’s
supervisor gave her an oral warning at the time.  She did not receive any other discipline for this
incident in April 2009.  Nearly 13 months later, on May 4, 2010, an unidentified supervisor prepared
a discipline report, showing a written warning for this incident.  It indicated that Applicant’s failure
to immediately improve her performance could result in time off or immediate termination.
Applicant never saw the discipline report until she opened a package of materials from DOHA
related to her hearing.  
On January 21, 2010, significant flooding occurred at Applicant’s work base, and the
government closed the work base and sent employees home from work.  Applicant worked 5.5 hours
before the base was closed.  She recorded her time worked and an additional 4.5 hours for weather
issues on her time sheet.  The next day, she asked her supervisor for instructions on how to charge
her time, but did not receive clear instructions.  Her time sheet revealed that she charged five hours
for her time on January 22, 2010.  Applicant’s supervisor prepared a memorandum of record on
January 25, 2010 in which he indicates that Applicant improperly charged her time on January 22,
2010, and that he counseled her about how to properly charge her time.  On May 4, 2010,
Applicant’s supervisor submitted an employee discipline report indicating that Applicant reported
improper time on January 21, 2010 and January 22, 2010.  He indicated that the disciplinary action
was an oral warning for violation of work rules and dishonesty.  Applicant denies any knowledge
of the disciplinary report until she received a package from DOHA.  Her denial is supported by the
fact that her signature is not on the report.  On its face, the report states that her signature was
indicative of her receipt of it.  A human resources letter from Applicant’s company dated July 21,
2011 advised that Applicant and the majority of the company’s employees were not properly advised
on how to charge their time during the two days of the flood.  The employees were verbally warned
to allow them to correct their time cards, but the oral discipline reports were meant to serve as a
memorandum for the record only, and are not considered a written disciplinary report. 
In April 2010, a second incident involving a classified camera card occurred.  Applicant
signed out both a classified and an unclassified card for a particular job.  When Applicant drove to
the work site, she was informed that the job had been cancelled.  She removed the blank classified
card from her camera when she learned it would no longer be needed.  She secured it in a blue bag
1“[A]ny failure to comply with rules for the protection of classified or other sensitive information.”
2“[N]egligence or lax security habits that persist despite counseling by management.”
4
and then secured the bag in her brief case.  She drove back to her work site and went to her office,
leaving the classified card in her locked brief case in her locked car.  Applicant then obtained
authorization to attend training classes for the rest of the morning, given the fact that she had no
immediate work assignments.  She attended class, during which time the classified card remained
in her locked government vehicle.  During the afternoon, although her work assignments were
changed, she kept the classified card in her car as she had anticipated another photo assignment
before the end of the day.  She left work at 5:00 p.m. without returning the blank classification card
to its secured box.  Applicant acknowledged that she failed to follow procedures for returning the
blank card.  Applicant never took any pictures with the card.  At all times in question, the card was
blank and no classified information was compromised.  
After this second incident, Applicant’s employer suspended her from work for 14 days.
Upon her return, during a counseling session management advised her not to complain about or to
discuss any facts about her security incident beyond the managers present at the meeting.  A
disciplinary report was prepared, which included the admonition against discussing her security
incident outside management.  Applicant’s signature is not on this disciplinary report.  Applicant
denies telling anyone about the incident and her resulting discipline.  The record does not show that
she has been disciplined for telling co-workers about the April 2010 security incident, as alleged in
the SOR.
Applicant completed numerous training classes for information assurance awareness and for
awareness training.  Applicant also provided letters of recommendation from co-workers and test
officers at her place of work.  All describe her as trustworthy and reliable.    
  
The Judge reached the following conclusions:
Regarding the Guideline K allegations, on two occasions, Applicant failed to return two
blank classification cards used to take pictures of classified information or materials to their secured
box at the conclusion of her mission.  Because the cards remained blank at all times, and thus
contained no classified images, Applicant’s handling of the classified card did not violate the
NISPOM or her company’s standard operating procedures (SOP).  Applicant believed that she
violated the SOP by failing to maintain positive control or to properly store the media.  It can
therefore be assumed that the Government established AG  ¶ 34(g)1 and AG ¶ 34(h).2  At the time
of the first classified card incident, Applicant’s 16-hour work day was unusual and such long work
hours are not likely to recur.  The second incident with the classified card occurred, in part, because
Applicant’s supervisor continued to give her work assignments and then would change his mind
about the assignments.  By retaining the photo card, Applicant was prepared for her next anticipated
assignment.  The confusion of the day was unusual and unlikely to recur.  Applicant is very clear
3“[S]o much time has elapsed since the behavior, or it has happened so infrequently or under such unusual
circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness,
or good judgment.”
4“[T]he individual responded favorably to counseling or remedial security training and now demonstrates a
positive attitude toward the discharge of security responsibilities.”
5The Judge’s decision incorrectly lists this as SOR allegation 1d.
6“[C]redible adverse information that is not explicitly covered under any other guideline and may not be
sufficient by itself for man adverse determination, but which, when combined with all other 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:
. . . . (4) evidence of significant misuse of Government or other employer’s time or resources.”
7“[V]iolation of a written or recorded commitment made by the individual to the employer as a condition of
employment.”
5
about her responsibilities toward safeguarding classified information and has a positive attitude
toward the discharge of her security responsibilities.  AG ¶ 35(a)3 and AG ¶ 35(b)4 apply.  Even if
the allegations are not mitigated under Guideline K, they are mitigated under the whole-person
concept.  Regarding Guideline E, the record contains four disciplinary reports concerning the
security incident in April 2009, the time sheet incident in January 2010, the security incident in April
2010, and the counseling session in May 2010.  The SOR incorrectly alleges that Applicant received
these disciplinary reports, when she did not.  The Government has not established the SOR
allegations as written.  Applicant’s actions in filling out her time card in January 2010 reflect an
honest mistake, not an attempt to violate the rules, and this SOR allegation (2b) is found in her favor.
Regarding the May 2010 counseling by management to not discuss her security incident with
anyone, the employee disciplinary report does not reflect any misconduct by Applicant, but
references only possible discipline for a future violation.  There is no evidence that Applicant
violated the counseling given her.  This allegation (2c) is found in favor of Applicant.  Her failure
to buckle her seatbelt is a rules violation (SOR allegation 2d) but not a security violation.5  
Overall, the SOR allegations under Guideline E reflect a pattern of rules violations in the
workplace and a failure to follow the employer’s SOP for handling blank classified photo cards
between August 2005 and April 2010.  The Government has established its case under AG ¶
16(d)(4)6 and AG ¶ 16(f).7 
Applicant has taken full responsibility for the actual incidents alleged in the SOR, even
though she has denied receiving disciplinary reports for many of these incidents.  The traffic
violation is the only safety occurrence in 18 years of employment, and there is little likelihood that
similar violations will occur.  The traffic violation is mitigated.  After the April 2010 incident,
Applicant has been moved to another work area and continues to read the SOP provisions required
for her work station, which keeps her current on her employer’s procedures for handling classified
information.  After the incidents in August 2005 (failing to properly enter information into a system)
8“[T[he 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[.]”
9“[T]he individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation,
or duress[.]”
10“[C]ollecting or storing classified or other protected information at home or in any other unauthorized
location.”
6
and February 2006 (leaving sensitive personal information unprotected at her work station),
Applicant made suggestions to management to eliminate future problems.  Applicant proposed
simple solutions to prevent future problems of the type she experienced, and management found her
solutions acceptable.  These particular problems have not occurred for Applicant again.  The
evidence of record indicates that steps have been taken to eliminate future problems for Applicant.
AG ¶ 17(d)8 and AG ¶ 17(e)9 are partially applicable.  Even if the allegations are not mitigated under
Guideline E, they are mitigated under the whole-person concept.
Under the whole-person concept, Applicant has worked for a photographer for many years.
Until 2005, she performed her duties without any identifiable problems.  Over the next almost five
years, six incidents occurred, some of which are clear violations of workplace rules, even though
the incidents in question did not result in a compromise of classified or proprietary information.
Applicant acknowledges each incident and admits her actions.  The information in the record
provides troubling facts about the disciplinary reports and accompanying implications.    The timing
of disciplinary reports for the time card incident (May 2010 report for a January 2010 incident) and
for the first blank classified photo card incident (May 2010 for an April 2009 incident) raises
questions about the legitimacy of the reports and the lack of serious concern about the incidents
when they occurred.  These reports are given less weight inasmuch they contain discrepancies
compared to records prepared contemporaneously with the events and they lend the appearance that
Applicant’s supervisor was attempting to create a record of prior disciplinary action when none had
occurred.  Applicant signed a very broad Last Chance Agreement in May 2010 and has complied
with its terms.  She has a long and generally favorable employment history with her company, and
her employer gave her performance awards even after the April 2009 and April 2010 incidents.
None of Applicant’s references mentioned knowing that she had a problem with her security
clearance or the reasons for the SOR.  In light of the oral warning given to her in May 2010 about
not discussing her security incidents with others, Applicant exercised good judgment in choosing
not to violate the warning.  Applicant is not a security concern despite her past carelessness and
inattentiveness.  She is fully aware of her responsibilities and the impact of any misstep by her in
the future.  
Department Counsel argues that the Judge erred in her application of the disqualifying and
mitigating factors under Guideline K by (1) not applying AG ¶ 34(b)10; (2) by concluding that
provisions of the NISPOM and the company’s SOP did not apply to Applicant’s situation; (3) by
“second guessing” the employer and the employer’s characterization of Applicant’s violations of
security procedures and by substituting her own judgment for that of the employer with regard to
11“General. Contractors shall be responsible for safeguarding classified information in their custody or under
their control.  Individuals are responsible for safeguarding classified information entrusted to them.  The extent of
protection afforded classified information shall be sufficient to reasonably foreclose the possibility of its loss or
compromise.”
12“SECRET Storage.  SECRET material shall be stored in a GSA-approved security container, an approved
vault, or closed area.  Supplemental controls are required for storage in closed areas. . .”
13The Judge’s analysis on this point is confusing and contradictory.  At one point she concludes that Applicant
was in technical (emphasis supplied) violation of her employer’s SOP.  Shortly thereafter, she states categorically that
Applicant’s handling of the classified card did not violate her employer’s SOP.  Considering the Judge’s analysis under
Guideline K in its entirety, the Board construes the Judge’s analysis as concluding that Applicant did not violate the SOP.
14Gov. Ex. 5 at 4-5, Paragraph 6 (Responsibilities), subparagraph 7.a., Prepare for Testing under Procedures.
15A clear determination, through expert testimony or otherwise, whether the classified media card, standing
alone, was in fact a piece of classified information would have been helpful in this case.
7
the existence, severity, or significance of security violations; and (4) by not applying the “very
heavy burden” standard in the context of mitigation.  With one exception, Department Counsel’s
arguments have merit.
The Judge’s decision not to apply AG ¶ 34(b), not to apply ¶ 5-10011 or ¶ 5-30312 of the
NISPOM, and not to apply provisions of the Company SOP to Applicant’s violations of security
policy in April 2009 and April 2010 is predicated on her finding that the classified media cards
mishandled by Applicant were “blank” and did not contain any classified images.13  The only
evidence on this point is Applicant’s testimony that the classified media cards contained no
classified images or other material.  Even assuming that the Judge’s finding is supported by
substantial evidence, however, the fact that the classified media cards were blank did not justify the
Judge’s conclusion that AG ¶ 34(b) and the cited regulations did not apply.  A review of the
company’s SOP (Gov. Ex.5) reveals that precise procedures and protections were required for proper
handling of the classified media cards regardless of their contents.  This is borne out by the portion
of the SOP that requires strict accountability, the placing of classified media cards in appropriate
containers (a key locked bag, within a combination-locked briefcase) and positive control even
before the person who signed out the media card arrives at the site where the media card is to be
used.14  The SOP also contains illustrations that indicate the placement of classified markings on
classified media, including classified media cards.  Thus, record evidence indicates that the media
cards are essentially treated as classified information, regardless of their contents.15  The Judge’s
conclusion that AG ¶ 34(b) does not apply, along with the pertinent NISPOM and company SOR
provisions, was error.
Department Counsel asserts that the Judge “second-guessed” the company’s evaluation of
the media card incidents by concluding Applicant did not commit security violations, thus
erroneously downplaying the severity of the violations.  Although her analysis is not a model of
clarity, the Judge stated in her decision that Applicant did not fail to protect classified information
16“[S]o much time has elapsed since the behavior, or it has happened so infrequently or under such unusual
circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness,
or good judgment[.]”
17“[T]the individual responded favorably to counseling or remedial security training and now demonstrates a
positive attitude toward the discharge of security responsibilities[.]”
18Department Counsel correctly points out that the Judge’s application of ¶ 35(b) is in direct conflict with her
application of ¶ 34(h).  
8
or other sensitive information as required by Guideline K.  This can reasonably be interpreted as a
conclusion that Applicant did not commit security violations.  Such a conclusion runs counter to the
evidence discussed in the preceding paragraph as well as the company’s official determination that
Applicant committed security violations.
Department Counsel argues that the Judge cannot substitute her own judgment for that of an
employer with regard to the existence, severity, or significance of security violations.  To the extent
that Department Counsel is postulating an absolute rule, the statement goes too far.  However,
because of the unique position of employers as actual administrators of classified programs and the
degree of knowledge possessed by them in any particular case, their determinations and
characterizations regarding security violations are entitled to considerable deference, and should not
be discounted or contradicted without a cogent explanation.                  
Department Counsel argues that the Judge’s application of Guideline K mitigating conditions
¶ 35(a)16 and ¶ 35(b)17 was erroneous.  Regarding ¶ 35(a), Department Counsel asserts that there was
nothing unusual or confusing about the circumstances surrounding these incidents to the degree that
the incidents would be unlikely to recur.  Department Counsel also argues that Applicant’s recent,
repeated conduct of security concern casts doubt on her current reliability, trustworthiness and good
judgment.  These points have merit.  Although Applicant worked extra hours on the day of the first
security violation, and had to deal with fluctuating work assignments on the day of the second
incident, there is a paucity of evidence to support the Judge’s conclusion that these were truly unique
experiences in Applicant’s day-to-day job routine.  There is nothing in the record to support the
Judge’s conclusion that long work hours or dealing with management directives that might
sometimes be confusing are situations that are unlikely to recur.  The fact that Applicant committed
essentially the same security infraction with the classified media card twice under different
circumstances undercuts the conclusion that the infractions occurred in extraordinary settings.  The
Judge’s statements that Applicant is very clear about her responsibilities toward safeguarding
classified information and has a positive attitude toward the discharge of her security responsibilities
belies the fact that Applicant has not had access to classified information since her 2010 security
violation.  Similarly, ¶ 35(b)’s requirement that Applicant demonstrate a positive attitude toward the
discharge of security responsibilities is not satisfied by a situation where Applicant had not been
given work assignments involving classified information for over a year.  ¶ 35(b)’s requirement that
Applicant respond favorably to counseling or remedial security training is not satisfied on this
record, where Applicant committed a second security violation within a year after being counseled
and disciplined for the first infraction.18       
19“[C]redible adverse information in several adjudicative 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 condor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the person may not properly safeguard protected information[.]”
20The  language in the lead paragraph of  ¶ 16(d) is set forth in footnote 6 on page 8 of this decision.  The
specific language of subpart (d)(1) states “[U]ntrustworthy or unreliable behavior to include breach of client
confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government
protected information[.]” 
21“The lead paragraph language of ¶ 16(d) is set forth in footnote 6 on page 8 of this decision.  The specific
language of subpart (d) (3) states, “[A] pattern of dishonesty or rule violations[.]
22“[P]ersonal 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. . . .”
23See footnote 6 regarding the lead paragraph language of ¶ 16(d).  Subpart (d)(4) states “[E]vidence of
significant misuse or Government or other employer’s time or resources[.]”
24“[V]iolation of a written or recorded commitment made by the individual to the employer as a condition of
employment[.]”
9
Department Counsel asserts that the Judge erred by not applying the “very heavy burden”
standard when evaluating Applicant’s security violations and the effects of any mitigating
conditions.  Once it has been established that an applicant has committed a security violation, he (or
she) has a very heavy burden of demonstrating that he should be entrusted with classified
information.  Such violations strike at the heart of the Industrial Security Program and the Judge
must give any claims of reform and rehabilitation strict scrutiny.  See ISCR Case No. 07-08119 at
3-4 (App. Bd. Jul. 8, 2010).  The Judge’s failure to recognize this standard and to include it in her
analysis was error.
Department Counsel makes several assignments of error regarding the Judge’s analysis under
Guideline E.  Department Counsel asserts that the Judge should have analyzed the Guideline E
allegations under AG ¶ 16(c),19 ¶ 16(d)(1),20 ¶ 16(d)(3),21 and ¶ 16(e)(1)22 of the Directive.
Department Counsel also asserts that it was error for the Judge to analyze the Guideline E
allegations under ¶ 16(d)(4)23 and ¶ 16(f).24  These contentions have merit.   
Under the Directive, an Administrative Judge must consider and apply pertinent provisions
of the Adjudicative Guidelines. See, inter alia, Directive, Section 6.3; Enclosure 2, ¶ 2; and ¶
E3.1.25.  Nothing in the Adjudicative Guidelines specifies how an adjudicator is to decide what
disqualifying or mitigating conditions apply in a particular case.  However, the absence of such a
specific rule does not leave an adjudicator unfettered discretion in applying the Adjudicative
Guidelines for or against a clearance.  The proper application of the Adjudicative Guidelines is not
reducible to a simple formula, but rather requires an adjudicator to exercise sound judgment within
the parameters set by the Directive when deciding which Adjudicative Guidelines for or against the
granting of a clearance are applicable to a given case.  See, e.g., ISCR Case No. 01-27371 at 2-3
25Gov. Ex. 3.
26The Last Chance Agreement was promulgated in response to the conduct listed in the SOR.  There is no
evidence that its terms have been violated by Applicant.
27“[T]he 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[.]”
28“[T]he individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation,
or duress[.]”
29There is some record evidence to support the Judge’s findings that Applicant reviewed company SOPs and
that she received counseling from her employer.
10
(App. Bd. Feb. 19, 2003).  Because AG ¶ 16(c) contains language that is similar to the language in
the introductory paragraph to AG ¶ 16(d), which was used by the Judge, it was not error for the
Judge not to apply AG ¶ 16(c).  However, given the number of security violations and other
workplace infractions in the record, and the fact that those violations directly relate to Applicant’s
trustworthiness and reliability, it was error for the Judge not to apply ¶ 16(d)(1) and ¶ 16(d)(3).
Considering the facts in the case, the applicability of ¶ 16(d)(4) and ¶ 16(f) is far less clear.  There
is no record evidence that Applicant misused or wasted time or resources, unless it is the Judge’s
intent to consider Applicant’s security violations and violation of workplace procedures as such.
This is a mischaracterization of the nature of Applicant’s actions, which are more akin to failure to
follow security procedures and workplace rules.  Thus, ¶ 16(d)(4) does not squarely relate to the
record evidence.  Applicant’s actions are more accurately captured by the several Guideline E
disqualifying conditions that the Judge did not apply.  Regarding ¶ 16(f), it is not clear how this
disqualifying condition relates to the record at all.  Other than the Last Chance Letter25 signed by
Applicant and her employer, there is no evidence that Applicant made a written or recorded
commitment to her employer as a condition of employment  prior to the violations listed in the SOR,
and, in her decision, the Judge does not mention the existence of any agreement that was later
violated.26  
Department Counsel argues that the Judge erred by concluding that Guideline E mitigating
conditions ¶ 17(d)27 and ¶ 17(e)28 partially applied to the case.  While the Judge’s application of
these conditions was not wholly erroneous,29 any applicability is extremely limited considering that
both conditions contemplate steps taken by Applicant to lessen the likelihood of future problems.
The significant remedial measures put in place to prevent future violations by Applicant were the
result of initiatives introduced by her employer, such as moving her to unclassified work stations
after violations and the adoption of a Last Chance Agreement to provide an incentive for Applicant
to improve her performance.  While ¶ 17(e) arguably has general applicability, Applicant’s
vulnerability to exploitation, manipulation, or duress was not a principal concern in this case. 
30“In May 2010, you received an oral reprimand for violating work rules and dishonesty by overcharging time
on your time card in January 2010.”
31“In May 2010, you received an oral warning for violating work rules by discussing the security violation set
forth in subparagraph 1.a. above.”
32Gov. Ex. 3.
33App. Ex. B.
11
Department Counsel also argues that the Judge’s conclusions regarding SOR allegation 2.b.30
and SOR allegation 2.c.31 were in error, that the Government satisfied its burden to present
substantial evidence in support of both allegations, and it was improper for the Judge to exclude
them from consideration under Guideline E and the whole-person analysis.  Department Counsel’s
assertions have mixed merit.
Regarding 2.b., Department Counsel takes issue with the Judge’s conclusion that Applicant’s
overcharging on her time card in January 2010 was an honest mistake and not properly the subject
of a disciplinary action by her employer.  Applicant’s testimony, although confusing and often
difficult to follow, essentially stands for the proposition that she and her fellow employees were in
a unique situation where there was no clear company policy on how to charge time in the event of
a base closure.  Documentary evidence in the form of an Employee Disciplinary Report, dated May
4, 2010, indicated that Applicant was counseled for putting time on her time cards that was not
justified under company rules.32 The report indicates that Applicant was informed as to correct time
reporting procedures.  No mention was made of any confusion on the part of Applicant or company
policy.  The record also contains a memorandum of record, dated January 25, 2010, wherein
Applicant’s supervisor documented the counseling session.  The memo referenced a statement by
Applicant that she added hours to her time sheet with the excuse that she was sent home because of
the weather and thought she should still get paid.  A third document from a company human
resources deputy, dated July 21, 2011, indicated that during the dates in question, each employee
had to make a judgment call about how to charge time and that Applicant was not properly advised
on how to charge the “flood” time.33
When making findings of fact and reaching conclusions, it is the responsibility of the Judge
to resolve conflicting evidence.  In making findings of fact regarding 2.b., the Judge went into
considerable detail about Applicant’s version of events and the contents of the July 21, 2011 letter
from the human resources deputy.  While the January 25, 2010 memorandum for record from
Applicant’s supervisor is referenced, the Judge does not mention the supervisor’s assertion that
Applicant added hours to her time card because she thought she should still get paid even though
she had been sent home.  This statement is important evidence in that it reveals a possible dishonest
motive on Applicant’s part and undercuts the notion that the discrepancies on her time card were the
result of confusion.  Thus, the Judge’s findings and conclusions on this point are contradicted by
evidence in the same record.  Without commenting on how the Judge should have resolved this clear
conflict in the evidence, the Board concludes that it was error for the Judge to fail to address the full
34The Board notes that the January 25, 2010 memorandum was prepared contemporaneously with the underlying
incident, and the July 21, 2011 letter was prepared 18 months after the fact and 5 days prior to the hearing in this case.
35The May 3, 2010 employee disciplinary report that Department Counsel relies on is internally inconsistent.
It indicates a violation of work rules by check block, but the narrative describing the facts or events clearly indicates that
from that day forward, Applicant was not to discuss her security violation outside management.  There is no mention
of a violation of a previously instituted rule nor is any such rule identified.  This SOR allegation, the state of the evidence
thereunder, and the Judge’s decision, provide an example of a justifiable “second-guessing” of a characterization of an
incident by an employer.   
12
contents of the January 25, 2010 memorandum in her decision, and to provide reasons, if any, why
the evidence was being rejected or discounted.34        
Regarding 2.c., Department Counsel asserts the Judge erroneously concluded that Applicant
was not issued a warning for having violated any instruction or work rule.  The evidence indicates
that on May 3, 2010, Applicant was overheard talking to fellow workers about violating security
rules and making a vague reference to her own problems with security.  After the comments were
overheard by a supervisor, Applicant was called into a meeting with management wherein she was
instructed not to discuss her recent security infraction (the April 2010 classified media card issue)
with anyone other than management.  There is no evidence that Applicant received any similar
warning prior to making the comments, or that she violated any established company rule by making
the comments.  Thus, although Applicant was counseled on the matter and the counseling resulted
from actions of Applicant that management did not like, the Judge was correct in concluding that
the counseling was solely prospective in nature.  Despite an entry on an employee disciplinary report
that the meeting was for a violation of work rules, absent further evidence that Applicant’s
comments were violative of an established rule or admonition that pre-dated May 3, 2010, the
Government failed to establish that Applicant was guilty of violating work rules as alleged in the
SOR and argued by Department Counsel.  In the absence of evidence of culpability, the fact that
Applicant was counseled in this instance is of no great import.  Department Counsel has failed to
establish error.35   
Department Counsel asserts that the Judge’s whole-person analysis did not cure the
deficiencies in her analysis under Guidelines K and E, and challenges the Judge’s assertion that,
even if the SOR allegations are not mitigated under Guidelines K and E, they are mitigated by the
whole-person concept.  After a review of the record evidence and the Judge’s decision, the Board
concludes that nothing in the Judge’s whole-person analysis cures the errors identified in the Judge’s
analysis under the specific guidelines.  The Judge’s consideration of the totality of Applicant’s
military and employment history is not sufficient to overcome those errors.  Some of the errors
committed by the Judge in other parts of the decision are repeated in the whole-person analysis. 
The  Judge spends considerable time in her whole-person analysis discussing what she terms
“troubling facts” about some of the employee disciplinary reports in the record and “accompanying
implications.”  While the Judge does not specify what those accompanying implications might be,
her theory appears to be that, because some of the reports were prepared after long lapses of time
following the underlying incidents, were placed in Applicant’s file without her knowledge, and
36To cite two of the three examples provided by the Judge (the third is not specifically identified by the Judge,
but appears to be the report relating to SOR allegation 2.c.), the Judge concludes that the disciplinary report and an
earlier memorandum relating to SOR allegation 2.b. are fundamentally at odds, and that the report relating to SOR
allegations 1.b. and 2.a. (the 2009 security violation) suggests a lack of serious concern on the part of management about
the incident when it occurred. The Board concludes that while they differ in a few factual details, the disciplinary report
does not differ materially from memorandum relating to the incident under allegation 2.b.  The Board also concludes
that the arguably belated creation of a formal disciplinary report relating to the incident under allegations 1.b. and 2.a.
did not create a false impression of the severity of management’s response.  Evidence independent of the report indicates
that after the violation, Applicant was required to write a detailed explanation of the events, was removed from the
program she was working on, and was restricted to her office. 
37There are actually seven separate incidents referenced in the SOR.  
13
appeared to be an attempt to create a record of prior disciplinary action where none existed,
questions about the legitimacy of the reports arise, and they are entitled to less weight.  Whatever
irregularities occurred in management’s handling of Applicant’s violations of security and company
policy, and whatever the merits or pitfalls of an apparent attempt to document Applicant’s
difficulties long after the fact, the only relevant issue is the basic accuracy of the facts cited in the
reports.  With the exception of the disciplinary report regarding SOR subparagraph 2.c, the Board
concludes that there is no indication in the record that the brief statements of facts contained in the
disciplinary reports are factually inaccurate, or that they convey a false impression as to how
seriously management viewed Applicant’s conduct at the time it occurred.36  Most of the factual
representations contained in the disciplinary reports are corroborated by other evidence, including
Applicant’s testimony.  The Judge fails to support her conclusion that material inaccuracies exist
in the reports, and she provides no other reasonable basis for concluding that the reports are entitled
to less weight.  Moreover, a lengthy discussion as to how much weight should be accorded to
portions of the Government’s evidence would seem to be more relevant to a determination of
whether the Government established its case, as opposed to a determination of matters in mitigation
when discussing the whole-person concept.   
 
Department Counsel cites as a major flaw in the Judge’s decision the fact that the Judge
analyzed the SOR allegations separately, failed to address the pattern of Applicant’s questionable
judgment, unreliability and untrustworthiness, and engaged in a piecemeal analysis of the record.
A review of the Judge’s decision reveals several references to the collective body of Applicant’s
workplace difficulties.  The Judge makes reference to “a pattern of rules violation in the workplace”
when discussing the evidence under Guideline E. She states that “Applicant has taken full
responsibility for the actual incidents alleged in the SOR.”  She acknowledges that “six incidents
occurred, some of which are clear violations of workplace rules . . .”37  This language, tends to
indicate that the Judge did not engage in a piecemeal analysis of the record evidence.  On the other
hand, the Judge elected not to analyze the case under clearly applicable guidelines such as ¶
16(d)(3), which would have required her to confront directly the overall pattern of Applicant’s
infractions.  Given the errors discussed elsewhere in this decision, the Board need not decide
whether the Judge analyzed the case in a piecemeal fashion to arrive at a disposition.  
14
Order
Department Counsel has demonstrated several harmful errors by the Administrative Judge.
The totality of the identified errors is sufficient to warrant reversal pursuant to the Directive, ¶
E3.1.33.3.  Accordingly, the Board reverses the Administrative Judge’s December 12, 2011
decision.
 
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: William S. Fields                    
William S. Fields
Administrative Judge
Member, Appeal Board