DATE: August 11, 2003

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SSN: -----------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

RICHARD A. CEFOLA

APPEARANCES

FOR GOVERNMENT

Melvin A. Howry, Esquire, Department Counsel

FOR APPLICANT

David Joel Follin, Esquire, Applicant's Counsel

SYNOPSIS

The Applicant's employment was terminated in March of 1998, as he misused his employer's computer equipment by viewing a pornographic web site. Soon after his termination, however, the Applicant was hired by the same employer as a sub-contractor. This incident occurred more then five years ago; and as such, it is not recent. Furthermore, he has held a security clearance for nearly 50 years, and in that context his misuse of information technology is clearly isolated. itigation is shown. Clearance is granted.

On March 19, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

Applicant filed an Answer to the SOR on or about April 23, 2003.

The case was received by the undersigned on May 12, 2003. A notice of hearing was issued on June 3, 2003; and pursuant to the Applicant's specific request, the case was heard on July 8, 2003. The Government submitted documentary evidence. Testimony was taken from the Applicant, who also submitted documentary evidence. The transcript was received on July 21, 2003. The issue raised here is whether the Applicant's admitted misuse of information technology militates against the granting of a security clearance. [The Applicant admits the underlying factual basis for the allegation.]

The following Findings of Fact are based on Applicant's Answer to the SOR, the documents and the live testimony. The Applicant is 66 years of age, has a high school education, and is employed by a defense contractor that seeks a security clearance on behalf of the Applicant. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact.

Guideline M - Misuse of Information Technology Systems

1.a. In March of 1998, the Applicant's employment was terminated, as his employer discovered that he was viewing pornography through the internet, during his lunch hour, on his company computer (Transcript (TR) at page 13 line 18 to page 14 line 6, at page 16 lines 4~20, at page 17 lines 11~23, at page 23 line 17 to page 24 line 12, at page 24 lines 18~20, and Government Exhibit 1 at page 4). Soon after this termination, the Applicant was hired as a sub-contractor by the same employer (id). He has held a security clearance for nearly 50 years, and this was the only time his security clearance was ever at risk (ibid).

Mitigation

Those who worked with the Applicant before, during and after the incident in question think most highly of the Applicant, and would recommend him for a position of trust (Applicant's Exhibit A).

Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are:

Condition that could raise a security concern:

1. . . . unauthorized entry into any information technology system;

Conditions that could mitigate security concerns:

1. The misuse was not recent or significant;

4. The misuse was an isolated event.

As set forth in the Directive, each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate:

a. Nature, extent, and seriousness of the conduct, and surrounding circumstances.

b. Frequency and recency of the conduct.

c. Age and maturity of the applicant.

d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved.

e. Absence or presence of rehabilitation.

f. Probability that circumstances or conduct will continue or recur in the future."

The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence that is speculative or conjectural in nature.

The Government must make out a case under Guideline M (misuse of information technology systems); which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance.

The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an applicant has demonstrated a lack of respect for rules, there then exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

The Applicant admittedly misused his employer's computer in March of 1998. This was more than five years ago, thus bringing his misconduct within the purview of the first mitigating condition under Misuse of Information Technology Systems. Not only was his misuse not recent, but it was also an isolated occurrence when taken in the context of his holding a security clearance for nearly 50 years, without any other event of any security significance. Thus the fourth mitigating condition is also applicable. Further evidence of the Applicant's trustworthiness are the five letters of recommendation from those who know and work with the Applicant, and the fact that his employer rehired him as a sub-contractor soon after his termination as an employee. Guideline M is therefore found for the Applicant.

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: FOR THE APPLICANT

a. For the Applicant.

Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

In light of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant.