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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
[Name Redacted]  )  ISCR Case No. 15-05523 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Rhett Petcher, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
On April 13, 2016, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns under Guideline K, Handling 
Protected Information; Guideline M, Use of Information Technology Systems; and 
Guideline E, Personal Conduct. 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 (AG) implemented within DOD on September 1, 2006.  
  
 On April 22, 2016, Applicant answered the SOR and requested a hearing before 
an administrative judge from the Defense Office of Hearings and Appeals (DOHA). On 
September 15, 2016, Department Counsel was ready to proceed. On October 28, 2016, 
the case was assigned to me. On November 10, 2016, a Notice of Hearing was issued, 
scheduling the hearing on December 8, 2016. The hearing was held on that date. The 
Government offered five exhibits which were admitted as Government Exhibits (Gov) 1-
5. Applicant testified, called two witnesses and offered one exhibit consisting of 
numerous documents which was marked as Applicant Exhibit (AE) A. DOHA received 
the transcript on December 16, 2016. The record was held open until December 22, 
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2016, to allow Applicant to submit additional documents. Applicant timely submitted a 
document that was admitted as AE B.  Based upon a review of the case file, pleadings, 
exhibits, and testimony, eligibility for access to classified information is granted. 
 
Findings of Fact 
   
Applicant is a 54-year-old employee of a DOD contractor. He has worked for his 
current employer since November 4, 2013. He has held a security clearance since 
1987. For over 30 years, he has worked for various contractors supporting several 
government agencies. He has had a security clearance for 30 years. He has a 
bachelor’s and two master’s degrees. He is married and has four adult children. (Tr. 
133-35; Gov 1) (Some details have been excluded in order to protect Applicant’s right to 
privacy. Specific information is available in the cited exhibits.)  
 
The SOR alleged two allegations under Guideline K. The first allegation was that 
Applicant violated Contractor A’s Non-Disclosure and Invention Assignment Agreement, 
signed by Applicant in July 2008, when he copied files that contained company 
confidential and proprietary information from his company computer to his personal 
removable media drives (i.e. thumb drives) on multiple occasions between June 2011 
and April 2012, resulting in the unauthorized copying of 1,700 files. The second 
allegation involved Applicants’ retention of Contractor A’s computer files containing 
company confidential and proprietary information after certifying in April 2012 that he did 
not have such information in his possession when he signed Contractor A’s Termination 
Certification.  
 
The Guideline K allegations were also cross-alleged Under Guidelines M and E. 
Under Guideline E, the SOR also alleged that Applicant falsified information during 
interviews with DOD authorized investigators on June 20, 2013 and August 12, 2014, 
when he said that he accidentally copied company confidential and proprietary 
information from his company computer to his personal removable media drives. It is 
alleged that Applicant’s actions were deliberate. 
 
In July 2008, Applicant was hired by Contractor A. On July 14, 2008, Applicant 
signed a Non-Disclosure and Invention Assignment Agreement. The agreement defines  
“proprietary information” in great detail. It reads: 
 
I agree at all times during my employment with the Company and at all 
times hereafter to hold the strictest confidence and not to use, publish, 
disclose, transfer, deliver, or divulge any Proprietary Information: (a) for 
my own benefit and for the benefit of any person, entity, or corporation 
other than the Company; or (b) to any person who is not a current 
employee of the Company, except in the performance of the duties 
assigned to me by the Company, at any time prior or subsequent to the 
termination of my employment with the Company, without the express 
written consent of the Company. I further agree not to make electronic or 
hard copies of any Proprietary Information, except as authorized in writing 
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by the Company. I acknowledge that my obligations under section 1 shall 
survive the termination of my employment with the Company regardless of 
the reason for the termination. (Gov 4 at 2)  
 
In 2011, Applicant’s boss left Contractor A. Applicant believed that he was 
groomed to take his spot.  Contractor A’s Chief Executive Officer (CEO) decided that he 
wanted to look outside the company for a potential hire to take Applicant’s boss’s 
position. Applicant thought it unlikely that he would get the position. Because he was 
passed over for promotion, Applicant did not believe that he had a future at Contractor 
A. He began to look for another job. In early 2012, he learned the CEO had hired 
someone from outside the company. (Tr. 38-40, 42; Gov 5 at 4).  
 
On March 28, 2012, Applicant received a job offer from Contractor B.  On April 3, 
2012, he resigned from Contractor A and accepted the job offer. On April 5, 2012, 
Applicant signed a Contractor A Termination Certification. The first paragraph of the 
certification states: 
 
I hereby certify that I do not have in my possession, nor have I failed to 
return, any and all memoranda, notes correspondence, databases, discs, 
records, reports, manuals, books, papers, letters, CD Roms, keys, Internet 
database access codes, client profile data, orders, customer lists, 
contracts, software programs, information and records, drafts of 
instructions, and other documentation (whether in draft or final form), and 
other sales, financial or technical information relating to the business of 
[Contractor A] or its subsidiaries, parents, affiliates, successors or assigns 
(together, the “Company”), and any and all other documents containing 
Proprietary Information (as defined in the Non-Disclosure and Inventions 
Assignment Agreement) furnished to me by any representative of the 
Company or otherwise acquired or developed by me in connection with 
my association with the Company, including all Third Party Information. 
(Gov 4 at 9-10) 
 
On the day Applicant signed the Termination Certificate, he had about three 
more weeks to work at Contractor A. When he was asked to sign the letter, he was in a 
hurry because he was leaving on vacation. He did not read the termination certificate 
carefully. (Tr. 34, 54-56)  
 
On April 5, 2012, the same day that Applicant left on vacation, Contractor A’s 
Data Loss Prevention office prepared a report indicating that Applicant had copied from 
his Contractor A-issued laptop computer to “removable media” approximately 1,470 
files, some of which contained Contractor A proprietary information. The file transfers 
occurred between February 5, 2012 and April 2, 2012. The majority of the files were 
transferred to removable media on March 9, 2012 (886 files) and March 18, 2012 (408 
files). None of the files contained classified information. (Item 5 at 4; see also Tr. 36, 41, 
43-46)    
 
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On April 12, 2012, Applicant returned from vacation. Employees at Contractor A 
confronted him about his downloading of proprietary information and he was 
immediately terminated. Contractor A also contacted Contractor B about the files 
transfer and Contractor B withdrew their job offer. Applicant was unemployed from April 
19, 2012 to July 14, 2012. (Tr. 34, 54-60)  
 
During the investigation, Applicant was asked to provide his personal desktop 
computer and two personal laptop computers to the company for forensic examination. 
He cooperated with the investigation. Applicant also provided six removable media (i.e. 
thumb drives), one iPod, and his Contractor A-issued laptop computer for forensic 
examination. The investigation revealed Applicant transferred files, some of which 
contained Contractor A proprietary information, to his personal laptop on February 5, 
2012 (137 files); February 18, 2012 (34 files), March 9, 2012 (886 files); March 18, 2012 
(408 files) and April 2, 2012 (20 files). It is not clear how many of the files contained 
proprietary information. Applicant transferred several files that contained personal non-
proprietary information on February 10, 2012, and February 19, 2012. (Item 5 at 4-5)   
 
Applicant’s security clearance was suspended when Contractor A opened an 
investigation regarding his transfer of proprietary information to his home computer. The 
Defense Security Service (DSS) was involved in the investigation. According to 
Applicant, DSS concluded that there was no breach of security and no classified 
information was compromised. After the investigation, Applicant’s security clearance 
was reinstated. (Gov 2 at 7)  
 
In his response to the SOR, Applicant admits to making two fundamental errors 
at Contractor A. First, he transferred data that was unclassified and company 
proprietary from his Contractor A flash drive to his home computer using an improper 
process. Second, he did not read the Contractor A Termination Certification thoroughly. 
He deeply regrets making these two errors and states that his actions were not 
malicious. Applicant states that he has over 28 years of handling proprietary information 
and classified documents and stands by his record. He believes he can be trusted to 
handle classified information. As a result of the incident at Contractor A, Applicant 
suffered a period of unemployment and had to accept a job with a 25% decrease in 
income. The event significantly heightened his sense of document and security 
awareness. (Answer to SOR, dated April 21, 2016) 
 
Applicant claims most of the files he transferred were photographs that he 
wanted to keep from his business travels with Contractor A. During the investigation, he 
was not provided access to the list of the files, but disputes the number of proprietary 
files. When confronted by Contractor A in April 2012, he immediately surrendered his 
home computer to the Facility Security Officer (FSO) and cooperated with the 
investigation. The proprietary information stored on his home computer’s hard drive was 
not transferred to any other source. He realizes he should have consulted with 
management before transferring the data. (Id.) 
 
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Applicant states that Contractor A requested that he sign the Termination 
Certificate three weeks before his last day. On the day he signed it, he was leaving for 
vacation and quickly read and signed it. He planned on completing paper work and 
clearing out his office when he returned from vacation. He realizes that this is not an 
acceptable excuse and admits to his error. He is now much more attentive on reading  
detailed documentation. (Id.) 
 
Applicant says some of the files were transferred when he was teleworking.   He 
admits transferring the files to a home computer was the incorrect process. To save 
time, he transferred many files of information at one time. He planned to delete the 
proprietary files later.  He states that he should have made a folder of the non-
proprietary files and sought company approval before transferring the documents. (Id.) 
 
Applicant denies the falsification allegation in SOR ¶ 3.b, which alleges that he 
falsified material facts during interviews with DOD investigators on June 20, 2013 and 
August 12, 2014 when he stated that he accidentally copied company confidential and 
proprietary information from his company computer to his personal removable media 
drives. The statement is alleged to be false in that he deliberately copied files containing 
company confidential and proprietary information from his company computer to 
personal removable media drives on multiple occasions between June 2011 to April 
2012, copying 1,700 files. Applicant claims that his statement to investigator was taken 
out of context.  He explained to the investigator that he did not follow proper procedures 
when transferring his personal files to his home computer. Applicant is aware that 
Contractor A tracks the transfer of all files. Applicant says he was honest and 
cooperated during Contractor A’s investigation. (Id.)  
 
Applicant believes he is trustworthy to hold a security clearance. Since this event, 
he has followed the highest employment standards while working with two subsequent 
defense contractors. (Contractor C and Contractor D.) He handled both Secret and Top 
Secret documents without incident during their employment. (Id.)  
 
During the hearing, Applicant said that he was disappointed in himself because 
he did not follow the proper procedures for protecting proprietary information. When 
Applicant was leaving the company, he intended to keep unclassified open source 
documents. He transferred entire files with the intent to keep the open source 
documents and delete the proprietary information before he left Contractor A. He had no 
intention to keep the proprietary information. He was aware the information was tracked 
by Contractor A. (Tr. 25-32) 
 
Applicant transferred the files when he had time. He did not look at the folders 
when he transferred them. He intended to delete the proprietary information later. He 
could have separated the proprietary information before transferring the files to his 
home computer. If he could do it all over again that is how he would transfer the files. 
When Applicant transferred the files, he was aware that there was proprietary 
information in the files. It did not enter his mind that he was violating company policy. 
(Tr. 47-48, 62) 
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Whole-person Factors  
 
 Applicant worked for Contractor E from May 1997 to July 2008 and previously 
from June 1987 to May 1997.  (Gov 2 at 8) Mr. C., Applicant’s supervisor at Contractor 
E from 1988 to 2004, testified at the hearing. He never recalls Applicant violating 
security rules or company rules. There was a team security violation in 1999. It was an 
inadvertent disclosure of classified information. Mr. C. does not remember the details of 
the violation. (Applicant brought up the issue of this incident during his questioning of 
the witness. He indicated that he wanted to provide full disclosure.) Mr. C. worked with 
Applicant on a daily basis. He believes Applicant is trustworthy to have a security 
clearance. He said that during the time he supervised Applicant, he made significant 
contributions to the war effort. He is not exactly aware of the specific SOR allegations, 
but is aware that it involved Applicant taking home proprietary information. Mr. C. 
advised that proprietary information is different from classified information. (Tr. 69-76) 
 
 Mr. P., Applicant’s current supervisor from Contractor D, testified on his behalf. 
He has supervised Applicant since he was hired about three years ago. He works with 
Applicant on a daily basis. Mr. P. works on classified projects with Applicant. He states 
that Applicant is conscientious about handling classified information. He does not 
hesitate to recommend Applicant for a security clearance. Applicant provided a copy of 
the SOR to Mr. P.  He still recommends Applicant for a security clearance. He indicates 
that Contractor D has regular security training which Applicant attends. (Tr. 78 – 86)  
 
 Applicant provided his employee reviews from Contractor A for 2008, 2009, 
2010, and 2011. All were favorable. He was selected for and completed Contractor A’s 
Executive Development Program on January 24, 2012. He also provided two Letters of 
Appreciation from the Chief Executive Officer (CEO) of Contractor A from June 2009 
and March 2011. (AE A) After the hearing, Applicant provided his employee reviews 
from his two subsequent employers, Contractor C and Contractor D. All were favorable. 
(AE B)  
 
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 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 
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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.  
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is 
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, 
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The 
applicant has the ultimate burden of persuasion as to obtaining a favorable security 
decision.  
 
A person who seeks access to classified information enters into a fiduciary 
relationship with the government predicated upon trust and confidence. This relationship 
transcends normal duty hours and endures throughout off-duty hours. The government 
reposes a high degree of trust and confidence in individuals to whom it grants access to 
classified information. Decisions include, by necessity, consideration of the possible risk 
that 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 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).   
 
The Government’s substantial evidence and Applicant’s own admissions raise 
security concerns under Guideline H, Drug Involvement. The burden shifted to Applicant 
to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. 
(Directive ¶ E3.1.15) An applicant has the burden of proving a mitigating condition, and 
the burden of disproving it never shifts to the Government. (See ISCR Case No. 02-
31154 at 5 (App. Bd. September 22, 2005))  
 
Guideline K, Handling Protected Information 
AG ¶ 33 expresses the security concern pertaining to handling protected 
information: 
Deliberate or negligent failure to comply with rules and regulations for 
protecting classified or other sensitive information raises doubt about an 
individual's trustworthiness, judgment, reliability, or willingness and ability 
to safeguard such information, and is a serious security concern.” 
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AG ¶ 34 describes conditions that could raise a security concern and may be 
disqualifying: 
(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; 
(b) collecting or storing classified or other protected information at home or 
in any other unauthorized location; 
(c) loading, drafting, editing, modifying, storing, transmitting, or otherwise 
handling classified reports, data, or other information on any unapproved 
equipment including but not limited to any typewriter, word processor, or 
computer hardware, software, drive, system, game board, handheld, 
"palm" or pocket device or other adjunct equipment; 
(d) inappropriate efforts to obtain or view classified or other protected 
information outside one's need to know; 
(e) copying classified or other protected information in a manner designed 
to conceal or remove classification or other document control markings; 
(f) viewing or downloading information from a secure system when the 
information is beyond the individual's need-to-know; 
(g) any failure to comply with rules for the protection of classified or other 
sensitive information; 
(h) negligence or lax security habits that persist despite counseling by 
management; and,  
(i) failure to comply with rules or regulations that results in damage to the 
National Security, regardless of whether it was deliberate or negligent. 
I find that AG ¶¶ 34(b), 34(c), and 34(g) apply to Applicant’s case.  AG ¶ 34 (b) 
applies because Applicant was not authorized to store Contractor A’s proprietary 
information on his home computer. The agreement Applicant signed when he became 
an employee of Contractor A clearly stated that this was prohibited without prior written 
approval from Contractor A. Applicant should have known what the rules were with 
regard to protecting Contractor A’s proprietary information.  
AG ¶ 34(c) applies because Applicant transferred some of Contractor A’s 
proprietary information to his home computer which was not approved for use by 
Contractor A. AG ¶ 34(g) applies because Applicant failed to comply with the Contractor 
A’s rules for protecting proprietary information.  
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AG ¶ 35 provides conditions that could mitigate security concerns: 
(a) so 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; 
(b) the individual responded favorably to counseling or remedial security 
training and now demonstrates a positive attitude toward the discharge of 
security responsibilities; and, 
(c) the security violations were due to improper or inadequate training. 
AG ¶¶ 35(a) and 35(b) apply to Applicant’s case. More than five years have 
passed since Applicant’s termination from Contractor A. While Applicant’s conduct was 
grossly negligent, he has since demonstrated that he can be trusted to handle classified 
information. He has handled both Secret and Top Secret information with his 
subsequent employers, Contractor C and Contractor D. His current supervisor at 
Contractor D testified on his behalf and lauded his security awareness. While his 
supervisor was aware of the incident at Contractor A, he recommended that Applicant 
be allowed to keep his security clearance based on his experience of working directly 
with Applicant on a daily basis for three years. Applicant’s conduct at Contractor A does 
not cast doubt on his current reliability, trustworthiness, and judgment. 
AG ¶ 35(b) applies because Applicant cooperated with Contractor A when they 
discovered the file transfer. Since that time, he has been steadfast in protecting 
classified information with his subsequent employers. While Applicant was not offered 
remedial security training, he has learned a difficult lesson. He was fired immediately 
from his position at Contractor A. Contractor B withdrew their job offer. Applicant was 
unemployed for several months and had to accept a job that resulted in a 25 percent 
reduction in his previous income. Despite this, he has demonstrated a positive attitude 
toward the discharge of his security responsibilities.  
Applicant mitigated the concerns raised under Guideline K.  
Guideline M – Use of Information Technology Systems 
 
The concern under this guideline is set out in AG ¶ 39:  
 
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 
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communication, transmission, processing, manipulation, storage, or 
protection of information. 
The following disqualifying conditions are potentially relevant:  
AG ¶ 40(a): illegal or unauthorized entry into any information technology 
system or component thereof; 
AG ¶ 40(b): illegal or unauthorized modification, destruction, manipulation 
or denial of access to information, software, firmware, or hardware in an 
information technology system; 
AG ¶ 40(c): use of any information technology system to gain 
unauthorized access to another system or to a compartmented area within 
the same system; 
AG ¶ 40(d): downloading, storing, or transmitting classified information on 
or to any unauthorized software, hardware, or information technology 
system; 
AG ¶ 40(e): unauthorized use of a government or other information 
technology system; 
AG ¶ 40(f): introduction, removal, or duplication of hardware, firmware, 
software, or media to or from any information technology system without 
authorization, when prohibited by rules, procedures, guidelines or 
regulations; 
AG ¶ 40(g): negligence or lax security habits in handling information 
technology that persist despite counseling by management; and 
AG ¶ 40(h): any misuse of information technology, whether deliberate or 
negligent, that results in damage to the national security. 
I find AG ¶ 40(f) applies to Applicant’s case. When he chose to transfer files 
containing Contractor A proprietary information to his home computer’s hard drive, it 
was clearly against the rules. When he started work at Contractor A, he signed an 
agreement which expressly stated: “I further agree not to make electronic or hard copies 
of any Proprietary Information, except as authorized in writing by the Company.”  
Applicant did not seek authorization before transferring Contractor A’s proprietary 
information to his home computer even though he should have been aware of the rules 
for protecting Contractor A’s proprietary information.  
 
 
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The following mitigating conditions under Guideline M are potentially relevant:  
AG ¶ 41(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; 
AG ¶ 41(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 
AG ¶ 41(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. 
AG ¶ 41(a) applies because it has been five years since Applicant’s termination 
from Contractor A.  During this time, Applicant has demonstrated that he can be trusted 
to handle classified information based on his positive performance evaluations with his 
subsequent employers and the favorable opinion by Mr. P., his current supervisor, on 
his ability to handle classified information and follow security procedures. 
Guideline E – Personal Conduct 
 The security concern relating to the guideline for Personal Conduct is set out in 
AG &15: 
 
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.  
  
 With respect to SOR ¶3.a which cross alleges the allegations under Guideline K, 
SOR ¶¶ 1.a and 1.b, the following disqualifying conditions potentially apply to 
Applicant’s case: 
 
AG ¶ 16(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: 
12 
 
(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; 
(4) Evidence of significant misuse of Government or other employer’s time 
or resources; and 
 
 AG ¶ 16(f) violation of a written or recorded commitment made by the 
individual to the employer as a condition of employment.  
 
 AG ¶ 16(d)(3) applies because Applicant violated Contractor A’s rules regarding 
proprietary information when he transferred files, some of which contained proprietary 
information to his home computer using a personal thumb drive. He did not seek 
permission before transferring these files. Applicant also certified in April 2012 that he 
did not have Contractor A company proprietary information in his possession, when he 
still had Contractor A proprietary information on his computer.  This demonstrates a 
pattern of dishonesty and rule violations.  
 
 Appellant’s actions also violated Contractor A’s Non-Disclosure and Invention 
Assignment Agreement that Applicant signed in July 2008, when he was hired by 
Contractor A. As a result, AG ¶ 16(f) applies Applicant violated his commitment to 
protect Contractor A’s proprietary information. As a condition of his employment, he 
committed to protecting Contractor A’s proprietary information.  
 
With respect to SOR ¶ 3.a, the following mitigating conditions have the potential to 
apply under personal conduct: 
 
AG ¶ 16(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; and 
 
AG ¶ 16(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. 
 
 Both AG ¶ 16(c) and AG ¶ 16(d) apply. Five years have passed since the 
incident at Contractor A. Since that time, Applicant has worked for two other defense 
contractors. His duties required handling both Secret and Top Secret information. His 
performance reviews were favorable. His current supervisor recommends that he 
continue to have access to classified information. Applicant admits that he should have 
followed proper protocols when transferring some of his files from the Contractor A 
computers. I find his explanation that he did not intend to use Contractor A’s proprietary 
13 
 
information for subsequent job opportunities to be credible. He intended to transfer files 
that were not proprietary and hoped to delete the files before he left the company. His 
actions were grossly negligent, but his intentions were without malice. Applicant said he 
learned a difficult lesson about handling information. His current supervisor attests that 
Applicant is meticulous about protecting classified information. A significant amount of 
time has passed since Applicant’s termination from Contractor A. He acknowledged his 
behavior and has since demonstrated that he is trustworthy to handle classified 
information. 
 
 With regard to the falsification allegation in SOR ¶ 3.b, the following disqualifying 
condition potentially applies: 
 
AG ¶ 16(b) directly providing false or misleading information concerning 
relevant facts to an employer, investigator, security official, competent 
medical authority, or other official government representative.  
  
For AG ¶ 16(b) to apply, Applicant’s falsifications have to be deliberate.  
Applicant has always maintained that he incorrectly transferred the files from his work 
computer to his home computer. He was attempting to transfer some of his personal 
documents but the files he transferred also contained proprietary information. Applicant 
admits to being aware that he some of the files contained proprietary information.  
Applicant incorrectly transferred the files, but had no intent to retain the files. He 
intended to delete the proprietary files before he left Contractor A’s employment. He just 
went about this process in a careless and sloppy manner. While Applicant’s actions 
certainly look bad and were grossly negligent, there is no proof that he had an ulterior 
motive to use Contractor A’s proprietary information at his new employer. Applicant fully 
cooperated with the investigation by Contractor A. He also cooperated with the 
investigators conducting his security clearance background check. I find he did not 
provide false or misleading information to the investigator conducting his background 
investigation interview. His testimony to the investigator was taken out of context.  
   
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 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 
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, 
14 
 
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. Applicant is highly respected by 
current and former supervisors. He is a family man who has worked over 30 years as a 
DOD contractor. During this time, he made a valuable contribution to the war effort. His 
decision to transfer Contractor A files using his personal thumb drive to his home 
computer was very irresponsible and grossly negligent, however, there is no evidence 
that he intended to use this information for ill gotten gains. Applicant merely chose a 
careless way to transfer his personal files. I note that Applicant cooperated fully during 
the investigation. I note that DSS was involved in the investigation and determined there 
was no breach of security and no classified information was compromised. I considered 
that Applicant’s security clearance was reinstated after the conclusion of the 
investigation.  
 
Applicant also did not read the Termination Certification carefully before signing 
it, because he was leaving on vacation. He understands he should have read it more 
carefully and has learned to be more careful in the future. One has to wonder why 
Contractor A needed him to sign the Termination Certification on April 5, when he had 
three more weeks of employment with them.  Applicant did not use the best judgment 
when transferring files that he believed to be his to his home computer and when hastily 
signing the Termination Certificate.  He apologized for his actions and said it was a 
valuable learning experience.  
 
 As a result of his negligence in handling Contractor A’s proprietary information, 
Applicant was immediately terminated from Contractor A. He was unemployed for 
several months because Contractor B withdrew their employment offer after being 
contacted by Contractor A. He accepted a job that offered a 25 percent reduction in 
income. Applicant endured hardship as a result of his actions. The incident taught him a 
valuable lesson about protecting proprietary information. Over the past five years, 
Applicant has worked for two additional DOD contractors and has handled both Secret 
and Top Secret information without incident. Security concerns are mitigated.  
 
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:    FOR APPLICANT 
 
  Subparagraph 1.a:    For Applicant  
15 
 
  Subparagraph 1.b:    For Applicant 
 
Paragraph 2, Guideline M:    FOR APPLICANT 
 
  Subparagraph 3.a:    For Applicant  
      
 Paragraph 3, Guideline E:    For APPLICANT 
 
  Subparagraph 3.a:    For Applicant  
  Subparagraph 3.b:    For Applicant 
        
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is  
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is granted. 
 
                                                
_________________ 
ERIN C. HOGAN 
Administrative Judge