DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 15-03785
)
)
Applicant for Security Clearance )
Appearances
For Government: John Bayard Glendon, Esquire, Department Counsel 
For Applicant: Pro se
March 23, 2017
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Decision
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MOGUL, Martin H., Administrative Judge:
On January 19, 2016, the Department of Defense (DoD) issued a Statement of
Reasons (SOR) detailing the security concerns under Guidelines K and E for Applicant.
(Item 1.) 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) (Directive); and the adjudicative guidelines (AG) effective within the
Department of Defense for SORs issued after September 1, 2006. 
 
On February 3, 2016, Applicant replied to the SOR (RSOR) in writing, and he
requested that his case be decided on the written record in lieu of a hearing. (Item 2.) 
On April 4, 2016, Department Counsel issued the Department's written case. A
complete copy of the file of relevant material (FORM) was provided to Applicant on April
4, 2016. In the FORM, Department Counsel offered seven documentary exhibits. (Items
1-7.) Applicant was given the opportunity to file objections and submit material in
refutation, extenuation, or mitigation. A response was due by May 8, 2016. Applicant
submitted a three page letter, which has been identified and entered into evidence
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without objection as Item A. The case was assigned to this Administrative Judge on
November 1, 2016. Based upon a review of the pleadings and exhibits, eligibility for
access to classified information is denied.
Findings of Fact
After a complete and thorough review of the evidence in the record discussed
above, and upon due consideration of that evidence, I make the following findings of
fact: 
Applicant is 39 years old. He is married. He received a Bachelor of Arts degree in
1989. Applicant has been employed by his present employer, a defense contractor,
since 1990, and he seeks a DoD security clearance in connection with his employment
in the defense sector. (Item 4.)
Guideline K - Handling Protected Information
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he engaged in conduct that shows deliberate or negligent failure to
comply with rules and regulations for protecting classified of other sensitive information,
which raises doubt about an individual’s trustworthiness, judgement, reliability, or
willingness and ability to safeguard such information. 
1.a. It is alleged in the SOR that in approximately 1991, Applicant committed a
security violation when he failed to properly secure a Sensitive Compartmented
Information Facility (SCIF) work area. Applicant admitted the allegation in his RSOR,
and he wrote that the area was not a SCIF, but he forgot to secure the area with a
padlock. He further wrote that in 1991, he was new to working in a secure area. (Item
2.)
1.b. It is alleged in the SOR that in approximately 1991, Applicant committed a
security violation when he failed to properly secure a classified document in an area not
designated as open storage, and he subsequently failed to report this to his Special
Security Officer (SSO). Applicant admitted the allegation in his RSOR, and he wrote that
the document was not locked in a safe but was inadvertently left on a desk in the closed
area. It was discovered and he was informed by the SSO, so he could not have
informed the SSO since the SSO knew of the violation before Applicant. (Item 2.)
1.c. It is alleged in the SOR that in approximately 1997, Applicant committed a
security violation when he failed to properly safeguard proprietary information. Applicant
admitted the allegation in his RSOR.(Item 2.)
1.d. It is alleged in the SOR that in approximately 2005, Applicant committed a
security violation when he disclosed classified information to unauthorized foreign
nationals while in a foreign country and he failed to timely report this to his Facility
Security Officer. Applicant admitted the allegation in his RSOR, and he wrote that he
disclosed a DOD Confidential parameter during a discussion with foreign officials but at
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the time of the disclosure he believed the parameter had been declassified. When he
learned that it had not been declassified he reported the incident to his program
manager, but not to his SSO. Applicant admitted he should have reported this incident
to his SSO. (Item 2.)
1.e. It is alleged in the SOR that in approximately 2010, Applicant committed a
security violation when he took a cellular device into a SCIF. Applicant admitted the
allegation in his RSOR, and he wrote that the violation was inadvertent. He also averred
that he immediately reported the incident to his SSO, who told him to never do it again,
and Applicant wrote that he never has done it again. (Item 2.)
1.f. It is alleged in the SOR that in approximately 2010, Applicant committed a
security violation when he attended a meeting for a classified program for which he had
not been granted program access, and he did not leave the meeting even after he
realized that he did not have the proper access. Applicant admitted the allegation in his
RSOR, and he wrote that he believed that the meeting was a general SCI level
discussion, which was a clearance that he held at the time. He further wrote that only
after the meeting did he learn that he did not hold the proper clearance, and when he
learned this he reported it to his SSO. (Item 2.)
In his Post-FORM letter, Applicant wrote that while he does not dispute that he
was involved with the six security violation incidents described on the SOR during his
employment, he has only been issued three actual security violation citations. He
argues that he was not issued security violations for the two incidents in 2010.  (Item A.) 
Guideline E - Personal Conduct 
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he engaged in conduct that exhibited questionable judgement,
unreliability, unwillingness to comply with rules and regulations, and untrustworthiness. 
The following allegations are cited in the SOR as tending to show that:
2.a. The SOR alleges that Applicant’s conduct, as set forth in paragraph 1.,
above, constitutes a violation of Guideline E.
Applicant further wrote that he takes his responsibilities in safeguarding
information very seriously, and the incidents above were not the result of a disregard of
procedures, and he has learned from his mistakes, and he is much more careful today.
Finally, he wrote, “Since the issues in 2010, I make much better use of others in a
checks and balances [sic] for all security activities, and I have had no issues since the
occurrences in 2010.” 
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Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG). 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
over-arching 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 the applicant or proven by Department Counsel. . . .” The
applicant has the ultimate burden of persuasion as to obtaining a favorable clearance
decision. 
A person who applies for access to classified information seeks to enter 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.
Section 7 of Executive Order 10865 provides that adverse 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).
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Analysis
Guideline K - Handling Protected Information
The security concern relating to the guideline for Handling Protected Information
is set out in AG ¶ 33:  
Deliberate of negligent failure to comply with rules and regulations for
protecting classified of other sensitise information raises doubt about an
individual’s trustworthiness, judgement, reliability, or willingness and ability
to safeguard such information, and is a serious security concern. 
The guideline notes several conditions that could raise security concerns.  Based
on Applicant’s conduct as a whole, disqualifying conditions ¶ 34(a), “deliberate or
negligent disclosure of classified or other protected information to unauthorized
persons, including but not limited to personal or business contacts, to the media, or to
persons present at seminars, meetings, or conferences” and ¶ 34(g), “any failure to
comply with rules for the protection of classified or other sensitive in formation” are
applicable. The evidence of Appellant failing to properly follow the rules for handling
protected information, on at least six occasions over the course of 20 years, whether or
not he was issued citations, is sufficient to raise these disqualifying conditions.
AG ¶ 35 provides conditions that could mitigate security concerns arising from
improperly handling protected information. While it has been several years since
Applicant was last cited or involved with security violations, no independent evidence,
such as character letters, employment evaluations, or counselling or remedial security
training reports, has been introduced to establish that Applicant has significantly
changed his conduct to insure that these violations will not occur in the future, and I do
not find that any of the mitigating conditions is applicable in this case. Therefore, I
conclude that Appellant has not mitigated the Handling Protected Information concerns.
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
AG ¶ 15:  
Conduct involving questionable judgement, 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.
         The Government alleges in this paragraph that Applicant is ineligible for clearance
because he engaged in conduct that exhibited questionable judgement, lack of candor,
dishonesty, unreliability, and untrustworthiness. 
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The guideline notes several conditions that could raise security concerns and
could potentially apply in this case. Because Applicant was involved in several incidents
that do raise an issue about his judgment and reliability, I find that Applicant’s conduct
supports disqualifying conditions ¶ 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 judgement, 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.” ¶ 16(d) is also
applicable, “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 judgments . . . or other characteristics indicating that the person may not
properly safeguard protected information. This includes but is not limited to
consideration of . . . (3) a pattern of dishonesty or rules violations.”
For the same reasons cited above, as to why no mitigating conditions apply
under AG ¶ 35, I find that no mitigating conditions are applicable under AG ¶ 17. I,
therefore, resolve Guideline E against Applicant. 
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. Based on all of the reasons cited above
as to why the disqualifying conditions apply and are controlling under Guidelines K and
E, I find that the record evidence leaves me with significant questions and doubts as to
Applicant’s eligibility and suitability for a security clearance under the whole-person
concept. For all these reasons, I conclude Applicant has not mitigated the security
concerns under the whole-person concept. 
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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 K: AGAINST APPLICANT
Subparagraphs 1.a. -1.f.: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a.: 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.
        
Martin H. Mogul
Administrative Judge 
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