Summary
A 42-year-old single male with an information technology and military background was granted a security clearance despite allegations under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology). The Statement of Reasons alleged that from 1992 to 2010, the applicant illegally downloaded software, programs, and movies for personal use. Further allegations included unauthorized access to computer applications at his workplace using serial numbers or key codes, and the unauthorized removal of IT hardware from his employer. These issues raised disqualifying conditions under Adjudicative Guidelines Paragraphs 40(d), 40(e), and 16(d).
However, the judge found insufficient evidence to support the government's claims regarding these disqualifying conditions. The applicant's actions were determined to have occurred under unusual circumstances, making recurrence unlikely.
Additionally, the applicant provided credible testimony and character references that affirmed his reliability and trustworthiness. Consequently, the judge concluded that the applicant had mitigated the security concerns under both Guideline M and Guideline E, applying mitigating conditions under Adjudicative Guidelines Paragraphs 41(a) and 17(c), and ultimately granted the security clearance.
Why the applicant prevailed
- The Government produced insufficient evidence to establish the alleged disqualifying conditions.
- The applicant's actions were deemed to have occurred under unusual circumstances and were unlikely to recur.
- The applicant provided credible testimony and character references supporting his reliability and trustworthiness.
Conditions referenced
- AG ¶ 40(d)raisedDownloading, Storing, or Transmitting Classified, Sensitive, Proprietary, or Other Protected Information on or to Any Unauthorized Information Technology System.
- AG ¶ 40(e)raisedUnauthorized Use of Any Information Technology System.
- AG ¶ 16(d)raisedCredible Adverse Information That Is Not Explicitly Covered Under Any Other Guideline.
- AG ¶ 41(a)appliedSo 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 ¶ 17(c)appliedThe 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.
Key rule quoted
“The protection of the national security is the paramount consideration.”
Procedural posture
- SOR issuedAug 3, 2016
- Answer filedApr 7, 2015
- Hearing heldFeb 22, 2017
- Decision dateOct 26, 2017
Cite for
- Insufficient Evidence to Establish Disqualifying Conditions Under Guideline M
- Mitigation of Security Concerns Based on Time Elapsed and Credible Testimony
- Whole-person Assessment in Security Clearance Determinations