ISCR Case No. 21-00896

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 21-00896 ) ) Applicant for Security Clearance ) Appearances For Government: Adrienne M. Driskill, Esquire, Department Counsel For Applicant: Pro se November 21, 2022

GLENDON, John Bayard, Administrative Judge: Statement of the Case Applicant submitted his most recent Electronic Questionnaire for Investigations Processing (e-QIP) on November 23, 2015. On March 17, 2022, the Department of Defense Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines K (Handling Protected Information); M (Use of Information Technology); E (Personal Conduct); and B (Foreign Influence). This 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 effective within the Department of Defense after June 8, 2017. Applicant answered the SOR in

writing (Answer) on April 25, 2022, and requested his case be decided on the written record in lieu of a hearing. On May 31, 2022, Department Counsel requested a hearing before an administrative judge and advised that she was prepared to proceed. The case was assigned to me on June 2, 2022. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Video Teleconference Hearing on June 21, 2022. On July 11, 2022, DOHA issued an amended notice rescheduling the hearing for July 18, 2022. The case was heard as rescheduled. The Government offered Government Exhibits (GE) 1 through 5, which were admitted without objection. Applicant testified on his own behalf. I left the record open to give Applicant the opportunity to supplement the record. He timely submitted three character-reference letters, which I marked as Applicant Exhibits (AE) A through C and admitted without objection. DOHA received the transcript of the hearing (Tr.) on July 25, 2022. (Tr. at 16-20.)

Applicant is 49 years old, married, and has one young child. He was born in Peru and immigrated to the United States in 1998 at the age of 26. He became a U.S. citizen in 2004. He graduated from high school and earned a bachelor’s degree in 1996 in Peru. He has also received two master’s degree, one in computer science (2000) and a second in business administration (2007). Both degrees were awarded by U.S. universities. Applicant has worked for Defense Department contractors as an engineer since 2015. He was granted national security eligibility in December 2016. He is seeking to retain his security clearance in relation to his employment. (Tr. at 22-28; GE 1 at 5-7, 10-11; GE 5.) Paragraph 1 – Guideline K, Handling Protected Information The Government alleges two incidents in which Applicant failed to comply with his employer’s rules and regulations for handling protected information. Both incidents occurred in 2019 and involved Applicant’s use of his work computer while in Mexico. After the first incident in January 2019, he was verbally warned by his employer (Company A) that his use of a company computer on an Internet network while he was in Mexico violated company policy (SOR 1.a). After he again used his work computer in Mexico in February 2019, he was terminated (SOR 1.b). Applicant admitted both allegations in his Answer. The details regarding these two incidents developed by the record evidence are the following: 1.a Verbal warning. At the hearing Applicant admitted that he violated the policy of Company A by connecting his employer’s computer to an Internet network when he was

in Mexico visiting his wife and child in January 2019. At that time he was living near the Mexican border and his wife was living and working in Mexico near the border. His young child was living with Applicant’s wife. He crossed the border “continuously” to see his child and wife. Applicant worked from his home in the United States, but also worked in Mexico when visiting his family. His work required that he connect his computer to the internet when he was working in Mexico. Company A discovered that he was logging onto its computer network from a location in Mexico. He used his wife’s Wi-Fi system to access the internet. At first he did not know that his actions violated company policy. He testified that he was merely trying to fulfill his family obligations and do his job. His supervisor counseled him that his actions violated company policy. (Tr. at 28-37.) 1.b Employment termination. The next month Applicant repeated his action of connecting his company computer to the internet while visiting his family in Mexico. Company A terminated him. At the hearing he admitted that he knowingly violated company policy. (Tr. at 37- 39.) Paragraph 2 – Guideline M, Use of Information Technology In this paragraph of the SOR, the Government alleges two separate incidents in November 2014 involving Applicant’s use of his work computer in violation of another employer’s (Company B) policy (SOR 2.a and 2.b). In addition the Government cross- alleges the two aforementioned incidents involving connecting to an Internet network in Mexico, as set forth in paragraphs 1.a and 1.b of the SOR (SOR 2.c). The details regarding the two incidents in 2014 are the following: 2.a Written counseling. On November 4, 2014, Applicant received written counseling from his supervisor at Company B for failing to communicate with his supervisor effectively and for loading software onto his work computer in violation of Company B’s policy. In his Answer, Applicant denied the allegation claiming that he did not receive any counseling. At the hearing he testified that he did not recall being counselled by his supervisor. He did recall that his supervisor asked that employees provide him with a list of all the software loaded on their computers and he determined that Applicant’s list was incomplete. Applicant was advised that his actions were unacceptable and against company policy. Applicant then removed the disallowed software from his company computer after being “yelled” at by his supervisor. (Tr. at 40- 44; GE 3.)

2.b Employment termination. On November 20, 2014, Company B terminated Applicant for his failure to communicate with company staff and management about a serious error Applicant made to a client’s online system. Applicant testified that he was using a client’s database and he “mistakenly removed some information.” He testified that he was questioned about his mistake. He believes the mistake was due to lack of training. He did not initially admit his mistake, but “at the end of the day” he “actually fessed up and said, hey, this was my mistake” after checking his work further. He admitted that he

did not self-report his mistake. It was discovered by Company B’s client and the client reported the error to Applicant’s supervisor. Applicant was terminated at that time. (Tr. at 44-46.) 2.c Cross allegations. The SOR cross alleges the allegations set forth in paragraph 1 of the SOR under Guideline K in this subparagraph under Guideline M. Paragraph 3 - Guideline E, Personal Conduct The Government alleges two instances in which Applicant provided false information in his 2015 e-QIP. Both falsifications relate to his 2014 written warning (SOR 3.a) and employment termination (SOR 3.b), which Applicant did not disclose in his e- QIP, as required. In both allegations, the Government alleges that the omissions in the e- QIP were deliberate. The Government also cross-alleges under Guideline E the allegations set forth in SOR subparagraphs 1.a, 1.b, 2.a, and 2.b. In his Answer he admitted the falsification allegations and provided additional comments. The details regarding the two falsification allegations are the following: 3.a Failure to disclose November 2014 employment termination for cause. In Section 13A of the e-QIP Applicant was required to provide the reason for his termination from Company B in November 2014. He responded by writing, “I was laid off due to company downsizing.” At the hearing Applicant acknowledged that his response was false. He explained he did not “want to remember that chapter,” but he said that he told the investigator the truth. An investigator in or about 2016 first interviewed applicant. The interview following his submission of the e-QIP in November 2015 is not in the record. (Tr. at 46-47; GE 1 at 13.) 3.b Failure to disclose November 2014 written warning from Company B and his termination, as alleged in SOR ¶¶ 2.a and 2.b. Another question in Section 13A of the e- QIP asks for disclosure about receiving any written warnings from Employer B or being “officially reprimanded, suspended, or disciplined for misconduct in the workplace.” Applicant responded “No.” At the hearing, he explained that he made a mistake and used “bad judgment” by falsely answering this question. He also testified that he disclosed his termination during his two background interviews. Only the most recent interview, which took place in September 2019, appears in the record. In the investigator’s summary of Applicant’s 2019 interview, the investigator noted that Applicant discussed his 2014 termination by Company B and commented that Applicant stated he provided information regarding that incident in his first interview after the submission of his 2015 e-QIP. (Tr. at 47-48; GE 1 at 13; GE 2 at 4.) Paragraph 4 – Foreign Influence In paragraph 4 of the SOR, the Government alleges that Applicant’s wife is a citizen and resident of Mexico and is employed by a Mexican public safety organization. In his

Answer Applicant denied the allegation and commented that his wife is no longer employed. The details regarding this allegation are the following: 4.a Mexican citizenship, residency, and employment of Applicant’s wife. Applicant’s wife is a Mexican citizen and resides in Mexico. She has a U.S. tourist visa that permits her to visit Applicant at his residence in the United States. She is no longer employed, but she previously worked in a small office in her city that runs a non-profit organization dedicated to the safety of the residents of that municipality. In that position, she received local government benefits, but was not an official government employee. The organization received funding from both the city and private industry. She left her job in or about May 2002 to care for her child. At that time, she was frustrated with her job because of the corruption of the police and politicians in her city. Her organization was not effective in making changes to the law enforcement culture in the city. She is now a full-time mother and studies English. The new director of her former employer continues to seek advice from Applicant’s wife even though she is no longer employed at that organization. Applicant, his wife, and their child travel back and forth across the Mexican border regularly. He estimated that he travels to Mexico about three times per week. He does not do any work while he is in Mexico. Applicant is helping his wife apply for permanent residency status in the United States. (Tr. at 49-60.) Mitigation Applicant testified that he made mistakes in the past, but that he has learned from his mistakes. He has changed his behavior based upon what he learned. He believes that he has done well the last three years complying with all rules and policies of his employers and performing his job well. Applicant provided three reference letters. His current manager wrote about Applicant’s excellent job performance and value to his team. The CEO of Applicant’s former employer (Company C) also praised Applicant’s performance and professionalism. This reference noted that he hired Applicant in 2019 with full knowledge of Applicant’s termination from Company A in 2019 and the reasons for his termination. He affirmed that Applicant has learned from his past mistakes and fully complied with all security directives and policies during his work for Company C. He also commented that he would hire Applicant again based upon his performance. In addition a former supervisor wrote that Applicant was trustworthy and reliable. (Tr. at 61, 70; AE A; AE B; AE C.)

When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility.

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 overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire process is a conscientious scrutiny of applicable guidelines in the context 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, “Any 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. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14, requires the Government to 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 national security eligibility. 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 or sensitive information. Finally, as emphasized in Section 7 of Executive Order 10865, “Any determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.)

Paragraph 1 - Guideline K, Handling Protected Information The security concerns about handling protected information are set forth in AG ¶ 33: 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 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable: (b) collecting or storing protected information in any unauthorized location; (g) any failure to comply with rules for the protection of classified or sensitive information; and (h) negligence or lax security practices that persist despite counseling by management. The record evidence regarding Applicant’s actions that lead to the termination of his employment with Company A in 2019 establishes security concerns under the above conditions. This shifts the burden to Applicant to mitigate the concerns raised by his conduct. AG ¶ 35 sets forth mitigating conditions under Guideline K. The following four mitigating conditions have possible application to the facts in this case: (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; (c) the security violations were due to improper or inadequate training or unclear instructions; and (d) the violation was inadvertent, it was promptly reported, there is no evidence of compromise, and it does not suggest a pattern.

None of the above mitigating conditions fully apply. The incidents occurred just three years ago and cast doubt on Applicant’s current reliability, trustworthiness, and good judgment. Applicant failed to respond to counseling and repeated the same misconduct only one month later. To the extent Applicant’s first violation of company policy was due to his lack of awareness of the policy, his second violation a month later was with full knowledge of that policy. The second violation was not inadvertent and was not reported voluntarily by Applicant. Paragraph 1 is resolved against Applicant. Paragraph 2 - Guideline M, Use of Information Technology The security concerns about use of information technology are set forth in AG ¶ 39: Failure to comply with rules, procedures, guidelines, or regulations pertaining to information technology systems may raise security concerns about an individual’s reliability and trustworthiness, calling into the question the willingness or ability to properly protect sensitive systems, networks, and information. This includes any component, whether integrated into a larger system or not, such as hardware, software, or firmware, used to enable or facilitate these operations. AG ¶ 40 describes several conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable: (b) unauthorized modification, destruction, or manipulation of, or denial of access to, an information technology system or any data in such a system; (d) downloading, storing, or transmitting classified, sensitive, proprietary, or other protected information on or to any unauthorized information technology system; (e) unauthorized use of any information technology system; (f) introduction, removal, or duplication of hardware, firmware, software, or media to or from any information technology system when prohibited by rules, procedures, guidelines, or regulations or when otherwise not authorized; and (g) negligence or lax security practices in handling information technology that persists despite counseling by management. The record evidence regarding Applicant’s actions that led to the terminations of his employment with Company B in 2014 and Company A in 2019 establishes security concerns under the above conditions. This shifts the burden to Applicant to mitigate the

concerns raised by his conduct. AG ¶ 41 sets forth mitigating conditions under Guideline M. The following four mitigating conditions have possible application to the facts in this case: (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 n cast doubt on the individual’s reliability, trustworthiness, or good judgment; (b) the misuse was minor and done solely in the interest of organizational efficiency and effectiveness; (c) the conduct was unintentional or inadvertent and was followed by a prompt, good-faith effort to correct the situation and by notification to appropriate personnel; and (d) the misuse was due to improper or inadequate training or unclear instructions. None of the above mitigating conditions fully apply. Applicant’s behavior in 2014 and 2019 reflects a pattern of misconduct, which casts doubt on his reliability, trustworthiness, and good judgment. His misuse of information technology systems was not minor nor were his actions done solely in the interest of organizational efficiency and effectiveness. Applicant’s first 2014 mistake may have been unintentional, but his failure to self-report the error was neither inadvertent nor unintentional. His conduct in 2019 was knowing and intentional. Viewing the two situations together, Applicant’s conduct reveals a serious flaw regarding his unwillingness to notify appropriate personnel about his actions. Applicant claims that his error in 2014 was due to lack of training, but again his failure to notify his managers of the problem he created is the significant security concern under the facts of this case. Paragraph 2 is resolved against Applicant. Paragraph 3 - Guideline E, Personal Conduct The security concerns relating to the guideline for personal conduct are set out in AG ¶ 15, which states: 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 two conditions that could raise security concerns and may be disqualifying in this case: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities; and (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 judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. The record evidence establishes that Applicant deliberately provided false answers to two questions in his 2015 e-QIP regarding his reason for leaving Company B in 2014; his receipt of an official warning from Company B; and the subsequent termination of his employment from Company B. His misconduct is clearly sufficient for an adverse determination under both Guidelines K and M to render application of AG ¶ 16(c) redundant and therefore inapplicable. The guideline includes two conditions in AG ¶ 17 that could mitigate the security concerns arising from Applicant’s falsifications: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; and (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. Applicant claims that he made a prompt good-faith disclosure of the circumstances of his termination from Company B in 2014 during his initial background interview in or about 2016. The record does not contain a summary of that interview, so it is not possible to determine if his corrections of his falsifications were made before he was confronted by the facts of his termination. The fact that the summary is not in the record, however, is not Applicant’s fault since it is unclear if he knew he could request a copy of the interview report. On the other hand, his deliberate misstatement of his reason for leaving Company B is serious and continues to cast doubt on his reliability, trustworthiness, and good judgment. Paragraph 3 is resolved against Applicant.

Paragraph 4 - Guideline B, Foreign Influence The security concerns relating to the guideline for foreign influence are set out in AG ¶ 6, which reads in pertinent part: Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism. AG ¶ 7 describes conditions that could raise a security concern and may be disqualifying. I have considered all of them and the following are potentially applicable: (a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information; and (e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion.

AG ¶¶ 7(a) and 7(e) require evidence of a “heightened risk.” The “heightened risk” required to raise this disqualifying condition is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government. The Government chose not to submit any information regarding country conditions in Mexico. The allegation appears to be largely based upon the now- former employment of Applicant’s wife. Accordingly, the Government has not carried its burden to establish that the citizenship and residency of Applicant’s wife in Mexico and Applicant sharing living quarters with his wife creates a heightened risk of foreign inducement, manipulation, pressure, or coercion. On the other hand the record evidence establishes AG ¶ 7(b) in that Applicant’s connection with his wife create a potential conflict of interest between Applicant’s obligation to protect sensitive information or technology and his desire to help his wife by

providing that information. This shifts the burden to Applicant to mitigate the security concerns raised by his foreign connection. AG ¶ 8 sets forth six mitigating conditions under Guideline B. The following three mitigating conditions have possible application to the facts in this case: (a) the nature of the relationship with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization or government and the interests of the U.S.; (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interests in favor of the U.S. interests; and (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation. The former employment of Applicant’s wife makes it difficult to conclude with a sufficient degree of certainty that it is unlikely that Applicant will be placed in a position of having to choose between the interests of his wife and the interests of the United States. His wife’s continued contact with her former employer increases that risk. AG ¶ 8(a) is not established. Applicant has such deep and longstanding relationships and loyalties in the U.S., that he can be expected to resolve any conflict of interests in favor of the U.S. interests. Applicant has worked for U.S. defense contractors since 2015 performing valuable work as an engineer. He has lived in the United States since age 26 and received two graduate degrees from U.S. universities. He has deep and longstanding relationships and loyalties in the United States. AG ¶ 8(b) is established. Applicant has regular contact with his wife. AG ¶ 8(c) is not established. Paragraph 4 is resolved in favor of Applicant.

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for national security eligibility 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(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 national security 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 pertinent facts and circumstances surrounding this case. Applicant has not mitigated the security concerns raised by his lax compliance with his employer’s policies, his refusal to comply with his employer’s policies in 2019, and his deliberate falsifications in his e-QIP. Overall, the record evidence creates questions and doubts as to Applicant’s present suitability for national security eligibility and a security clearance.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline K: AGAINST APPLICANT Subparagraphs 1.a and 1.b: Against Applicant Paragraph 2, Guideline M: AGAINST APPLICANT Subparagraphs 2.a though 2.c: Against Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraphs 3.a and 3.b: Against Applicant Subparagraph 3.c: For Applicant Paragraph 4, Guideline B: FOR APPLICANT Subparagraph 1.a: For Applicant

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 or continue Applicant’s national security eligibility for a security clearance. Eligibility for access to classified information is denied. JOHN BAYARD GLENDON Administrative Judge