KEYWORD: Guideline K; Guideline E
DIGEST: Judge did not abuse his discretion in amending the SOR to conform to the evidence. 
Applicant’s testimony that he did not object to such a procedure waived the issue for purposes of
appeal.  The Judge properly considered non-alleged conduct in evaluating Applicant’s credibility
and his case for mitigation.  Adverse decision affirmed.
CASE NO: 09-07219.a1
DATE: 09/27/2012
DATE: September 27, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-07219
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Alison O’Connell, Esq., Department Counsel
FOR APPLICANT
Pro se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On December 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.  At the hearing, the Judge granted
the Government’s request to add an allegation under Guideline K.  On June 27, 2012, after the
hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance.
Applicant appealed pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
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Applicant raised the following issues on appeal: whether the Judge erred in his treatment of
the disqualifying conditions; whether the Judge erred in his application of the pertinent mitigating
conditions; whether the Judge failed to consider all of the record evidence; whether the Judge erred
in amending the SOR; whether the Judge improperly considered conduct not alleged in the SOR;
and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law.  The Judge’s
favorable findings under Guideline E are not at issue in this appeal.  Consistent with the following,
we affirm the Judge’s decision.  
The Judge’s Findings of Fact
The Judge made the following pertinent findings of fact: Applicant is a consultant for several
Defense contractors.  He served in the Army for four years and subsequently in the Federal civil
service.  He retired from the civil service as a member of the Senior Executive Service (SES) and
worked with Defense contractors ever since.  He has held a security clearance for many years.  He
holds Bachelor’s and Master’s degrees.  He has written proposals for Government contractors and
is thoroughly familiar with the rules pertaining to security and procurement. 
 In the late 2000s, a DoD agency sent out a request for proposals (RFP) for the development
of a particular type of military equipment.  The RFP contained a classified annex.  Company A
sought Applicant’s assistance in preparing a proposal in response to the RFP.  Company A sought
Applicant’s assistance shortly before the proposal was due.
Applicant also had a relationship with Company L.  Company L had a facility site clearance
but it did not have an information assurance program.  Neither did it have authorization to store
classified information, although Applicant erroneously believed that it did.  Although Company A
had applied for a facility clearance, it would not have one before the proposal was due.
Once a company requested the classified annex, the security manager for the requesting
agency would review the company’s DD Form 254 to ensure that the company had the appropriate
clearances and authorizations.  Without a DD 254, a contractor could not view a particular contract
file, including a classified annex.  Applicant was aware of the requirement for a DD 254.  Neither
he nor Companies A nor L had DD Form 254s on file.
A third company, F, had access to the classified index to the RFP.  Applicant went to the
premises of Company F to view the annex.  He acknowledged that he did so in violation of the rule
that requires a DD From 254.  Applicant stated that he did so in order to ensure that the proposals
he submitted would be in the same format as the annex.  
Applicant decided that the proposal needed to go through classified channels.  Therefore, he
marked his proposal as Secret.  He denied that it actually contained classified information, however.
He acknowledged that his marking of the document rendered it “presumptively Secret.”  Decision
at 4.  His act of doing so was not alleged in the SOR.  
3
Applicant prepared his proposal on a personal computer.  The proposal contained
information designated as controlled unclassified information (CUI).  He acknowledged that doing
so was in violation of security rules.  Applicant copied his proposal onto several CDs.  He placed
one CD, marked Secret, in the computer system at Company L.  He made two copies of the proposal,
leaving one copy at Company L.  This copy was marked Secret, although he denied that it actually
contained classified information.  Because Company L did not have approval to process classified
information, it would have been a security violation to download classified information onto one of
the company’s hard drives. 
The SOR contained several allegations of Guideline K violations by Applicant.  The Judge
concluded that the Government had produced substantial evidence of security concerns regarding
two of these allegations:  Applicant’s having gained access to the classified annex to the RFP
without having a required DD Form 254 properly on file and his having used his personally-owned
laptop computer to process CUI.  As stated above, the Judge resolved all of the Guideline E
allegations in Applicant’s favor.  
The Judge also concluded that Applicant had failed to demonstrate mitigation, citing to
evidence of Applicant’s lengthy experience with security rules as well as with the requirements of
Government procurement.  He stated that Applicant knew that he was not complying with security
rules in his preparation of the proposal.  Although Applicant has made sincere assurances that he
will comply with security rules in the future, the Judge concluded that more time was needed to
eliminate doubt about his reliability and trustworthiness.  In the whole-person analysis, the Judge
cited to evidence of Applicant’s lengthy service and his positive contributions to national security.
He stated that Applicant’s admission that he violated security rules is a first step in rehabilitation.
Although the Judge expressed confidence in Applicant’s ability to comply with security rules, he
ultimately concluded that Applicant’s conduct raised unresolved questions about his ability or
willingness to protect classified information. 
Discussion 
The Judge’s Treatment of the Disqualifying Conditions
Applicant contends that the Judge erred in concluding his conduct in accessing the classified
annex met the requirements of Directive, Enclosure 2 ¶ 34(b), in that there is no evidence that he
collected or stored classified information in an unauthorized location.  Disqualifying Condition
34(b) states that the following could raise a security concern under Guideline K: “collecting or
storing classified or other protected information at home or in any other unauthorized location[.]”
 In the case before us, near the close of the hearing, Department Counsel moved to amend the SOR
by adding an allegation that Applicant had violated security protocols by using a personally-owned
laptop computer to process CUI.  After the Judge granted the motion to amend, Applicant stated to
the Judge that he had used his personal computer to process CUI, but that he had done so not on the
hard drive but on the computer’s random access memory.  He explicitly acknowledged the truth of
the allegation.  Tr. at 374.  Insofar as Applicant admitted to having used his personal computer to
1To the extent that Applicant is challenging the sufficiency of the Judge’s material findings of fact, we note that,
in a DOHA case, the Government’s burden is to produce substantial evidence regarding controverted allegations.
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion
in light of all the contrary evidence in the same record.”  Directive ¶ E3.1.32.1.  See ISCR Case No. 10-10045 at 3 (App.
Bd. Jan. 17, 2012).  The Judge’s material findings of security concern are supported by substantial record evidence.  
2Applicant raises new evidence in explaining this assertion of error.  We cannot consider new evidence on
appeal.  Directive ¶ E3.1.29.  
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draft a proposal that contained CUI, he admitted to conduct that satisfies the requirement of 34(b).1
Applicant argues that the Judge erred in concluding that Directive, Enclosure 2 ¶ 34(c)
applied to his circumstances.  This disqualifying condition addresses “loading, drafting, editing,
modifying, storing, transmitting, or otherwise handling classified reports . . . or other information
on any unapproved equipment . . .”  Although this disqualifying condition does not specifically
address CUI, it was not unreasonable for the Judge to consider Applicant’s deliberate conduct with
CUI under this rubric.  Applicant also contends that the Judge erred in applying Directive, Enclosure
2 ¶ 34(f): “Viewing or downloading information from a security system when the information is
beyond the individual’s need to know[.]”  The Judge’s findings concerning Applicant’s having
obtained access to the classified annex without the requisite DD Form 253 are based on substantial
evidence and support the application of this disqualifying condition.  We resolve this assignment
of error adversely to Applicant.
Amendment to the SOR
Applicant contends that the Judge erred in amending the SOR.  A SOR may be amended at
the hearing in order to render it in conformity with the evidence or for other good cause.  We review
a Judge’s decision to amend the SOR for an abuse of discretion.  See, e.g., ISCR Case No. 07-08119
at 8 (App. Bd. Jul 8, 2010).  In this case, the evidence adduced at the hearing demonstrated that
Applicant placed CUI on his personal laptop, which was in violation of security rules.  Applicant
admitted that he had done so, as stated above.  When Department Counsel moved to amend the SOR,
Applicant stated that he did not object and that he did not require additional time in which to prepare
to meet the new allegation.  
[Judge]: If I allow the Government to amend, you will have a reasonable period of
time to prepare to answer that allegation. 
[Applicant]: I don’t mind to the amendment, and I don’t need any additional time.
I’ll just answer it now.  Tr. at 372-373.  
By agreeing to the amendment, Applicant waived any objection he might otherwise have had.2  Even
if he had not waived the issue, given record evidence of the conduct, consisting principally of
Applicant’s own testimony, the Judge did not abuse his discretion by granting Department Counsel’s
motion to amend the SOR.
5
Conduct Not Alleged in SOR
Applicant contends that the Judge erred by considering evidence that he had knowingly
placed a Secret classification designation on documents that contained no classified information.
His argument cites to provisions in the NISPOM which, he contends, do not support the Judge’s
treatment of this evidence.  To the extent that Applicant is arguing that the Judge mis-weighed or
did not properly evaluate the evidence, he has not demonstrated error.  The Judge’s finding that
Applicant marked unclassified material as though it were classified and that this was improper is
supported by the record.  See, for example, the testimony of the security manager for the agency that
issued the RFP: Applicant stated “that the material was all unclassified . . . If it’s unclassified, you
don’t send a classified document receipt.  You don’t send it marked secret in packaging marked
secret.”  Tr. at 114.  
Moreover, a Judge may consider non-alleged conduct for such issues as an applicant’s
credibility; his evidence in mitigation; the extent of an applicant’s rehabilitation; the applicability
of a particular provision of the Directive; or for a whole-person analysis.  See, e.g., ISCR Case No.
03-20327 at 4 (App. Bd. Oct. 26, 2006).  In the case before us, the Judge stated explicitly that he was
considering the non-alleged conduct for these purposes only and for no other purpose.  Decision at
5, note 5.  We find no error in the Judge’s having considered the non-alleged conduct.
Remaining Issues
Applicant contends that the Judge failed to consider various pieces of record evidence.
However, a Judge is presumed to have considered all of the evidence in the record.  He is not
required to discuss every piece of evidence, which is a virtual impossibility in any case.  See, e.g.,
ISCR Case No. 11-00771 at 3 (App. Bd. Apr. 9, 2012).  Applicant has not rebutted the presumption
that the Judge considered all of the record evidence.  Applicant’s appeal brief includes evidence
from outside the record, concerning, for example, his use of CUI.  We cannot consider new evidence
on appeal.  Directive ¶ E3.1.29.  
Applicant cites to statements in the Decision which are favorable to him.  He argues that they
are inconsistent with the Judge’s overall adverse result.  We have examined the Decision as a whole,
noting several places, especially in the Analysis, in which the Judge cites to favorable aspects of the
record, such as Applicant’s knowledge, experience, and sincerity.  We do not consider individual
sentences in isolation; rather, we consider a decision in its entirety.  See, e.g., ISCR Case No. 10-
03232 at 4 (App. Bd. May 24, 2011).  In this case the Judge reasonably explained why the evidence
submitted by Applicant was not sufficient to outweigh concerns arising from his failure to comply
with rules governing access to classified information and CUI.  See ISCR Case No. 10-07070 at 8-9
(App. Bd. Apr. 19, 2012) (“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 . . .”).
The record supports a conclusion that the Judge examined the relevant data and articulated
a satisfactory explanation for the decision, “including a ‘rational connection between the facts found
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and the choice made.’”  Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962)).  The Judge’s adverse decision is sustainable on this record.  “The general standard is that
a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  See also Directive, Enclosure 2 ¶ 2(b):
“Any doubt concerning personnel being considered for access to classified information will be
resolved in favor of the national security.”
Order
The Judge’s adverse security clearance decision is AFFIRMED.  
Signed: Michael Y. Ra’anan            
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                  
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                 
James E. Moody
Administrative Judge
Member, Appeal Board