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ISCR Case 18-02384 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date2/26/2020
Statusdenied
LevelHEARING
TypeSTANDARD ISCR
Related decisionSee the appeal decision (Case 18-02384.a1) →
Participants
Judge: Pamela C. Benson
Government Counsel: Rhett E. Petcher
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline IPsychological Conditions · Against Applicant
- Guideline KHandling Protected Information · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 18-02384denied

Case Headnote

ISCR Case No. 18-02384

deniedFeb 26, 2020· Hon. Pamela C. Benson· hearing

Summary

A 40-year-old electrical engineer was denied a security clearance due to concerns under Guidelines E (Personal Conduct), I (Psychological Conditions), and K (Handling Protected Information). The denial stemmed from a psychological evaluation, a history of workplace conduct issues, and a failure to mitigate these concerns.

The applicant's psychological evaluation in March 2018 diagnosed him with Paranoid Personality Disorder, Autism Spectrum Disorder, and Unspecified Anxiety Disorder. The evaluating doctor concluded these conditions could negatively impact his judgment, reliability, and trustworthiness in sensitive roles. Additionally, the applicant had a history of employment terminations, including one in June 2011, for personal conduct and an inability to follow policies, procedures, project guidelines, and instructions.

Further concerns arose from the applicant's attempts to gain unauthorized entry to a Sensitive Compartmented Information Facility (SCIF), querying an unknown foreign national for assistance with sensitive work, and bringing a prohibited USB drive into the SCIF without proper reporting. The judge determined that the applicant did not provide sufficient evidence to mitigate these mental health and conduct issues, concluding that granting clearance was not consistent with national security interests.

Why the Applicant Was Denied

The applicant's psychological evaluation indicated conditions that impair judgment and trustworthiness.
The applicant had a history of inappropriate personal conduct in the workplace, including multiple terminations for rule violations.
The applicant did not provide sufficient evidence to mitigate concerns regarding his mental health and conduct.

Conditions Referenced

Disqualifying

AG ¶ 28(b)appliedPsychological Conditions
AG ¶ 16(d)appliedPersonal Conduct
AG ¶ 34(g)appliedHandling Protected Information

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedOct 3, 2019
Answer filedDec 8, 2019
Hearing heldFeb 26, 2020
Decision dateFeb 26, 2020

Cite For

Denial of Security Clearance Due to Psychological Conditions Impacting Judgment
Pattern of Personal Conduct Violations Leading to Clearance Denial
Failure to Mitigate Security Concerns Related to Handling Protected Information

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found against the applicant on allegations of personal conduct, specifically regarding terminations from previous employment due to failure to follow guidelines and policies. The applicant's claims of unreasonable timelines and transportation issues were not sufficient to mitigate the concerns raised.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant was terminated from a different employer due to his inability to follow project guidelines, meet requirements to produce tangible work results within reasonable deadlines, and his inability to follow clear instructions and stay on task.	Against Applicant	Rules Violation at Workplace	—	Denied	—	—	—
2.b	Applicant was terminated from employment in June 2011 for his personal conduct and inability to follow policies and procedures.	Against Applicant	Rules Violation at Workplace	—	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline I (Psychological Conditions) · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found that the Applicant participated in a psychological evaluation in March 2018, resulting in diagnoses of Paranoid Personality Disorder, Autism Spectrum Disorder, and Unspecified Anxiety Disorder. The evaluation concluded that these conditions could negatively impact the Applicant's judgment and reliability, leading to a ruling against the Applicant on both allegations under Guideline I.

¶	Allegation	Finding	Type	Response	Disqualifying (¶28)	Mitigating applied (¶29)	Mitigation
1.a	Applicant participated in a psychological evaluation in March 2018 in which he was diagnosed as exhibiting signs of Paranoid Personality Disorder, Autism Spectrum Disorder, and Unspecified Anxiety Disorder.	Against Applicant	Psychotic Disorder Diagnosed	Denied	—	—	—
1.b	The doctor concluded that Applicant suffers from interfering mental health conditions that could have a negative impact on his judgment, reliability, and trustworthiness when handling classified information or performing sensitive tasks in the future.	Against Applicant	DoD Psychologist Adverse Opinion	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline I). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline K (Handling Protected Information) · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found that the applicant engaged in serious security violations, including attempting unauthorized entry into a Sensitive Compartmented Information Facility (SCIF) and bringing a prohibited USB drive into the SCIF. These actions were deemed to undermine the applicant's trustworthiness and reliability in handling protected information, leading to a ruling against the applicant under Guideline K.

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
3.a	Applicant attempted to gain unauthorized entry to the Sensitive Compartmented Information Facility (SCIF); his attempt to query an unknown foreign national for assistance with his sensitive work; and for bringing a prohibited USB drive into the SCIF and failing to properly report the security violation.	Against Applicant	Failure to Safeguard or Secure	Denied	(g) any failure to comply with rules for the protection of classified or sensitive information	—	—

Descriptive standardized rendering of a decided public case (Guideline K). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 18-02384 ) Applicant for Security Clearance ) Appearances For Government: Rhett Petcher, Esq., Department Counsel For Applicant: , Personal Representative ______________

STATEMENT OF CASE

______________ BENSON, Pamela C., Administrative Judge: Applicant’s most recent psychological evaluation indicated that his present mental status negatively impacts his judgment and trustworthiness. He has a history of inappropriate personal conduct in the workplace, and an inability to follow rules, deadlines, policies, and procedures. He failed to mitigate psychological conditions, personal conduct, and handling protected information security concerns. National security eligibility for access to classified information is denied. Statement of the Case On August 5, 2015, Applicant submitted a security clearance application (SCA). On October 3, 2019, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR), detailing security concerns under Guideline I (Psychological Conditions), Guideline E (Personal Conduct), and Guideline K (Handling Protected Information). The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines (AG) effective within the DOD on June 8, 2017. Applicant answered the SOR on December 8, 2019. He denied all of the SOR allegations, and requested a hearing before an administrative judge. On February 4, 2020, the case was assigned to me. On February 7, 2020, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for February 26, 2020. During the hearing, Department Counsel offered Government Exhibits (GE) 1-7, which I admitted into evidence without objection. Applicant stated that he was uncertain if GE 5 included all of the e-mail correspondence he had with his former employer. I granted Applicant three weeks (March 18, 2020), in which I would hold the record open to submit any relevant documents in mitigation of his case. During the hearing, Applicant testified, his father testified and acted as a personal representative for Applicant, and no documents were submitted for my consideration. On March 17, 2020, he submitted six documents labeled as Applicant Exhibits (AE) A-F, which I admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on March 6, 2020, and the record closed on March 18, 2020. (Tr. 20-21)

PROCEDURAL RULINGS

Applicant’s submission of documents on March 17, 2020, included a cover letter in which Applicant asked that I make a formal request to the Department of Justice and/or the Federal Bureau of Investigation (FBI) to have an unredacted copy of Applicant’s 2015 Office of Personnel Management (OPM) investigative report provided to me for consideration in his case. His request is denied since it is not within my authority or jurisdiction to order other U.S. Government agencies to provide me with unredacted copies of their investigative reports. The reports are redacted to delete or mask information that has been deemed as privileged, confidential, or to protect sensitive information being released to the general public. Therefore, I cannot, and will not, obstruct this essential security measure. Applicant also requested that I contact specific people listed in his documents who could verify his testimony and credibility. It is important to note that applicants are permitted to have witnesses at their hearing to verify their testimony and credibility. In this case, Applicant’s father testified. In all fairness to the opposing party, these witnesses are then subject to cross examination by Department Counsel. Applicant chose not to call these witnesses at his hearing. Applicant also could have requested that these individuals provide affidavits or character reference letters, which he could then submit for my consideration by the close of the record. He chose not to do so. It is not the DOHA judge’s responsibility to contact these individuals to obtain information pertinent to Applicant’s case since all applicants bear the burden of mitigation. Applicant’s second request is denied.

FINDINGS OF FACT

Having thoroughly considered the evidence in the record, I make the following findings of fact: Applicant is 40 years old. He has never been married and does not have any children. Since 1985, Applicant has resided with his family and grandmother in his grandmother’s house. In 2004, he earned a bachelor’s degree in electrical engineering, and in 2012, he earned his master’s degree in the same field. In 2015, he was hired by a defense contractor, but his employment is contingent on him obtaining a DOD security clearance. (GE 1, GE 4)

SOR allegations ¶¶ 1.a and 1.ballege that Applicant participated in a psychological evaluation in March 2018 in which he was diagnosed as exhibiting signs of Paranoid Personality Disorder, Autism Spectrum Disorder, and Unspecified Anxiety Disorder. The doctor concluded that Applicant suffers from interfering mental health conditions that could have a negative impact on his judgment, reliability, and trustworthiness when handling classified information or performing sensitive tasks in the future. Applicant had been asked to participate in a psychological evaluation after reports of his questionable behavior and poor judgment in the workplace surfaced during the course of his security clearance investigation. Applicant denied both SOR allegations, and testified that the doctor’s diagnosis and conclusion were in error due, in part, to lack of information. (Tr. 65, GE 4; SOR Response “B”)

The doctor, a licensed psychologist, used Applicant’s background information provided by the DOD CAF, and administered the Personality Assessment Inventory during the psychological evaluation. He also conducted a clinical interview and personally observed Applicant. Applicant reported that he was wrongfully terminated by a DOD government employer in 2011 because he had witnessed and reported nefarious activities in the workplace, to include inappropriate handling of classified information, co-worker connections to the Mexican drug cartel, deliberate espionage, and the framing of an innocent employee supposedly involved in child pornography. After his job termination, he claimed the defense contractor’s employees then made him the subject of their surveillance and the eventual victim of arson in 2012. These acts were committed against Applicant in retaliation for his disclosure of these events to the FBI and the Air Force Office of Special Investigations (AFOSI). The doctor concluded that Applicant’s paranoid personality disorder involved a global mistrust and suspicion of others’ motives. The events Applicant described are certainly possible events, but in the context of the psychological evaluation, those events were likely improbable. He recommended Applicant participate in psychiatric treatment. As of the date of the hearing, Applicant had not received any treatment for his present mental status. (Tr. 67- 76, 123-124; GE 4; AE E; SOR response “B, D-G”)

Applicant’s response to the SOR stated that the doctor’s diagnosis was biased and skewed. Applicant’s grandmother had passed away less than six months prior to the date of his psychological evaluation, and he had asked the doctor if his grief would adversely affect the test results. The doctor stated it would not, but Applicant does not agree with that assessment. Applicant had inquired whether the doctor had received

verification and validation from the FBI and AFOSI regarding his experiences at his former workplace and the following repercussions, to which the doctor replied he had. During the course of the evaluation, Applicant revealed that he had an extensive personal engineering library and that he was sexually inactive, which he asserted was information that was inappropriately considered by the doctor. Overall, he felt that the doctor’s diagnosis of him exhibiting signs of Paranoid Personality Disorder, Autism Spectrum Disorder, and Unspecified Anxiety Disorder is incomplete, biased, unprofessional, as well as personally insulting. (Tr. 30-31, SOR response “B, F”)

Applicant requested the FBI conduct a polygraph examination on him to validate his reported incidents and to show the government that he is not a threat to the U.S., but the FBI denied that request. He also requested through the Freedom of Information Act, and by a direct request to the FBI, that portions of his 2015 investigative report from the OPM be unredacted, which was also denied. Applicant claimed the FBI could not provide the redacted portions of his investigative records due to a current and aggressively ongoing criminal investigation to apprehend the criminals he had identified from his former place of employment. (Tr. 138-139; AE cover letter; AE E; SOR response “B, D, E”)

In June 2011, Applicant was terminated from a government employer located on a military installation. His job termination was related to his personal conduct and inability to follow policies and procedures. (SOR ¶ 2.b) The concerns included: multiple late arrivals to work and work meetings; demonstrating a lack of respect to his co- workers; attempting to gain unauthorized entry to the Sensitive Compartmented Information Facility (SCIF); attempting to query an unknown foreign national, who he found via an online software forum, for assistance with his work; and for bringing a prohibited USB drive into the SCIF and failing to properly report the security violation. Based on the foregoing security-related incidents, Applicant’s access to classified information was suspended in April 2011. This allegation was also cross-referenced as SOR ¶ 3.a under Guideline K (Handling Protected Information). (GE 6; SOR response “B, D-G”)

Applicant denied this allegation in his response to the SOR. He claimed that he had unreliable transportation due to mechanical issues with his car, which caused him to be late. He remedied this situation by notifying his employer of the problem, and having his car repaired. He has “always shown respect” to all of his co-workers and supervisors. He admitted he had an unpleasant incident with a former co-worker, but only after he learned that he missed a meeting that was not previously communicated to him. He apologized to her for being abrupt, and she accepted his apology. Applicant acknowledged an attempted entry into the SCIF, but this was only due to the fact that the door was not labeled TOP SECRET SCIF. As to the foreign national allegation, Applicant had been told by a supervisor that employees were permitted to post generic questions on the internet to gain information about work-related material. When Applicant had asked if he could contact a foreign national to obtain information, he was immediately told not to do so. Applicant stated that he followed proper procedures by first asking if he could contact the foreign national, and then immediately disregarding

making contact once he was told to do so. His carrying a prohibited device into a SCIF was unintentional. He had previously placed a USB drive in his wallet, and it accidently fell out after he opened his wallet to pay for a snack in the SCIF area. He claimed to have followed proper security protocols by handing over the USB drive to the appropriate individual to safeguard the device. The USB was reviewed by the security office and no classified files were found on it. Applicant stated this was an inadvertent mistake that will never be repeated. (Tr. 95-104, 106-122, 127, 130-137; GE 1, GE 2, GE 3; AE C; SOR response “B, D-G”)

In October 2014, Applicant was terminated from a different employer due to his inability to follow project guidelines, meet requirements to produce tangible work results within reasonable deadlines, and his inability to follow clear instructions and stay on task. (SOR ¶ 2.a) Applicant denied this allegation and blamed his former employer for instituting unreasonable timelines for the completion of assigned projects. In addition, his former employer failed to provide the proper equipment and software he needed to complete the task. Applicant raised awareness in the workplace that the employer’s software could cause human injuries and electrical fires. Shortly thereafter, he asserted he was wrongly terminated by this employer. Applicant claimed that the fact that he was awarded unemployment benefits from the state is evidence that his former employer was found to be dishonest in their business and the state is currently investigating his former employer for their corrupt actions. (Tr. 88-94, 140-143; GE 1; SOR response “B and H”) After his job termination in October 2014, Applicant sent e-mail communications to his former employer. The title of one particular e-mail; “I am still enjoying the money from (employer) having to pay unemployment.” He told his former boss that he was the “worst god-forsaken and despicable employer” that he had ever encountered. Applicant threatened to reveal adverse information to their business client. He also requested that his former boss stop harassing a co-worker who was involved in a romantic relationship with a foreign national. Applicant wholly supported the co-worker’s position that “all American women are despicable lying females who are only capable of falsely accusing men of RAPE and SEXUAL ASSAULT.” He identified a female co-worker that fit this description, and told his former boss that maybe she would accuse him of such a crime. (Tr. 86, 88-92, 140-148; GE 5; AE B; SOR response “B and H”)

An attorney representing the former employer sent Applicant a letter dated June 2, 2015, notifying him to immediately cease and desist from any further communications. In response to Applicant’s threat to contact the business client, it was noted that he had previously signed a confidentiality agreement, a copy of which was attached to the letter. If Applicant violated this agreement, the former employer would consider pursuing legal remedies against him. Applicant sent an e-mail to his former boss the next day. He also contacted an attorney to determine whether he could contact the business client, whether his former employer would sue him, and if so, would his former employer be able to stop his unemployment benefits. Applicant claimed that this former employer “blacklisted” him by providing negative reviews to potential employers inquiring about his possible employment. (Tr. 149-150; GE 5; AE B, AE D, AE F; SOR response “B and H”)

Applicant had been previously employed by a government contractor and was laid off in approximately 2008. Applicant admitted in an e-mail that he made serious mistakes during his employment. He contacted his former supervisor after he suspected that he had been “blacklisted” due to his inability to find subsequent employment. He also suspected that his former employer was embezzling money from one of their customers. Applicant’s SOR does not allege this information. Applicant testified that the official reason he was let go from this employer was because the employer’s defense project was terminated by Congress. Applicant claims the unofficial reason he was let go by his employer was for him making terrorist threats. (Tr. 153-159; GE 2; AE A) In ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006), the Appeal Board listed five circumstances in which conduct not alleged in an SOR may be considered stating:

(a) to assess an applicant’s credibility; (b) to evaluate an applicant’s evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) to provide evidence for whole person analysis under Directive Section 6.3.

Applicant’s father was both a personal representative and a witness at the hearing. He verified several unusual events, to include the home survelliance that occurred from August 2011 to April 7, 2012, the date of the suspicious house fire that he claimed was still under investigation by the fire department for arson. No one was able to make any contact with the individuals who participated in the surveillance, or obtain the license plate numbers from the blackened vehicles used in that endeavor. He participated in the meetings with the FBI and AFOSI. Applicant also provided three character reference letters. It appears that all four individuals have worked with him in some capacity, and all characterized Applicant as a trusted, gifted, and dedicated individual. None of these individuals mentioned that they were aware of the security concerns alleged in his SOR. (TR. 25-64, 76-85; SOR response “C and I”)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions, which are used 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 overarching 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 national security eligibility will be resolved in favor of the 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. Directive ¶ E3.1.15 an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and 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 an applicant may deliberately or inadvertently fail to 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 EO 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).

ANALYSIS

Guideline I: Psychological Conditions

AG ¶ 27 expresses the security concern for psychological conditions:

Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline and an opinion, including prognosis, should be sought. No negative inference concerning the

standards in this guideline may be raised solely on the basis of mental health counseling.

The medical information and report in evidence raised the following Psychological Conditions Disqualifying Condition under AG ¶ 28:

(b) an opinion by a duly qualified mental health professional that the individual has a condition that may impair judgment, stability, reliability, or trustworthiness.

The SOR alleges psychological conditions security concerns based on Applicant exhibiting signs of Paranoid Personality Disorder, Autism Spectrum Disorder, and Unspecified Anxiety Disorder, after the completion of a psychological examination. The qualified licensed psychologist concluded that Applicant suffers from interfering mental health conditions that could have a negative impact on his judgment, reliability, and trustworthiness when handling classified information or performing sensitive tasks in the future.

I considered the following mitigating conditions under AG ¶ 29:

(a) the identified condition is readily controllable with treatment, and the individual has demonstrated ongoing and consistent compliance with the treatment plan;

(b) the individual has voluntarily entered a counseling or treatment program for a condition that is amenable to treatment, and the individual is currently receiving counseling or treatment with a favorable prognosis by a duly qualified mental health professional;

(c) recent opinion by a duly qualified mental health professional employed by, or acceptable to and approved by, the U.S. Government that an individual’s previous condition is under control or in remission, and has a low probability of recurrence or exacerbation;

(d) the past psychological/psychiatric condition was temporary, the situation has been resolved, and the individual no longer has indications of emotional instability; and

(e) there is no indication of a current problem.

Applicant has not received professional treatment or prescribed medications for his diagnosed psychological issues and interpersonal style. A qualified mental health professional determined that Applicant’s condition was not fully under control and is likely to continue, which casts doubt on his current reliability, trustworthiness, and good judgment. None of the mitigating conditions fully apply.

Guideline E: Personal Conduct

AG ¶ 15 expresses the personal conduct security concern:

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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying in this case. The following disqualifying condition is potentially applicable:

(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:

(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; and

(4) evidence of significant misuse of Government or other employer's time or resources.

Applicant was terminated from employment in October 2014 for his inability to follow project guidelines, meet requirements to produce tangible work results within reasonable deadlines, and his inability to follow clear instructions and stay on task. (SOR ¶ 2.a) He was terminated from employment in June 2011 for his personal conduct and inability to follow policies and procedures. (SOR ¶ 2.b) The record establishes AG ¶ 16(d). Additional inquiry about the possible applicability of mitigating conditions is required.

Six personal conduct mitigating conditions under AG ¶ 17 are potentially applicable in this case:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

(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;

(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 contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and

(f) the information was unsubstantiated or from a source of questionable reliability.

None of the mitigating conditions apply to Applicant’s history of unreliable and inappropriate behavior at the workplace. His pattern of rule violations, although innocently committed, were serious and will most likely recur. As enumerated under Guideline I, his recent psychological evaluation showed that Applicant is unlikely to be able to change his behavior that contributed to his untrustworthy, unreliable, or other inappropriate behavior. Personal conduct security concerns are not mitigated.

Handling Protected Information

AG ¶ 33 articulates the security concern for handling protected information:

Deliberate or negligent failure to comply with rules and regulations for handling protected information-which includes classified and other sensitive government information, and proprietary information-raises doubt about an individual's trustworthiness, judgment, reliability, or willingness and ability to safeguard such information, and is a serious security concern.

AG ¶ 34 lists a condition that could raise a security concern and may be disqualifying in this case:

(g) any failure to comply with rules for the protection of classified or sensitive information.

SOR ¶ 3.a cross-alleges the same conduct described in the personal conduct section under SOR ¶ 2.b. Specifically, Applicant’s attempt to gain unauthorized entry to the Sensitive Compartmented Information Facility (SCIF); his attempt to query an unknown foreign national, who he found via an online software forum, for assistance with his sensitive work; and for bringing a prohibited USB drive into the SCIF and failing to properly report the security violation establishes AG ¶ 34(g).

AG ¶ 35 lists 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;

(d) the violation was inadvertent, it was promptly reported, there is no evidence of compromise, and it does not suggest a pattern.

The mitigating conditions under AG ¶ 35 are not applicable since Applicant has a pattern of security infractions, and in the context of the psychological evaluation, these type of infractions are likely to recur. Handling protected information security concerns are not mitigated.

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(d):

(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.

Applicant is a 40 years old. He has been terminated by two employers for a pattern of rule violations. He is adamant that both terminations were wrongful. Applicant has shown an unusual history of mistrust and harassment by his former employers. I found Applicant to be intelligent and candid during the hearing. Unfortunately, even with the support of his father’s testimony, the information provided about his work history and the reported retaliation efforts, to include the possible murder of Applicant and his family members by intentionally setting their house on fire, appear to me to be irrational.

The licensed psychologist concluded that Applicant’s paranoid personality disorder involved a global mistrust and suspicion of others’ motives, which is apparent from the evidence presented in this case. There is no evidence of any criminal investigation of his former co-workers by the FBI or AFOSI. There is no evidence that his former employer was involved in the surveillance or deliberately set Applicant’s residence on fire. There is no evidence of a continuing arson investigation by the fire department. The doctor acknowledged that the events Applicant described were certainly possible events, but in the context of the psychological evaluation, those events were likely improbable. Overall, Applicant’s present mental state may impair his judgment, stability, and reliability. Accordingly, Applicant has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

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 I:

AGAINST APPLICANT

Subparagraphs 1.a-1.b:

Against Applicant

Paragraph 2, Guideline E:

AGAINST APPLICANT

Subparagraphs 2.a-2.b:

Against Applicant

Paragraph 3, Guideline K:

AGAINST APPLICANT

Subparagraph 3.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 security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

Pamela C. Benson Administrative Judge