CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 17-01870.h1 — CASE

Case record

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

Decision Date6/15/2018
Statusdenied
LevelHEARING
TypeSTANDARD ISCR
Related decisionSee the appeal decision (Case 17-01870.a1) →
Participants
Judge: Richard A. Cefola
Applicant's Counsel: Richard M. Steingard
Guidelines Evaluated
- Guideline EPersonal Conduct · Unknown Outcome
- Guideline KHandling Protected Information · Unknown Outcome
- Guideline MUse of Information Technology · Unknown Outcome

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 17-01870.h1denied

Case Headnote

ISCR Case No. 17-01870.h1

deniedJun 15, 2018· Hon. Richard A. Cefola· hearing

Summary

A 43-year-old defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline K (Handling Protected Information), and Guideline M (Use of Information Technology). The applicant admitted to a pattern of dishonesty and rule violations, specifically the illegal downloading of proprietary information and improper handling of classified documents.

The Statement of Reasons detailed that from approximately May 2011 to August 2014, while employed by a defense contractor, the applicant used peer-to-peer file sharing services to illegally download about 5,000 songs and 60 movies to his personal computer. Additionally, in April 2008, also while employed by a defense contractor, the applicant knowingly brought home classified documents in clear violation of security guidelines.

Despite the applicability of some mitigating conditions related to the timing of the conduct, the judge determined that the applicant failed to mitigate the security concerns, particularly those related to personal conduct. The judge found a clear pattern of dishonesty and rule violations, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant admitted to illegal downloading of proprietary information and improper handling of classified documents, demonstrating a pattern of dishonesty and rule violations.
The judge found that the applicant failed to mitigate the security concerns related to personal conduct despite some mitigating factors being applicable to other guidelines.

Conditions Referenced

Disqualifying

E2.craisedCredible Adverse Information in Several Adjudicative Issue Areas
E2.draisedCredible Adverse Information Not Explicitly Covered Under Any Other Guideline

Mitigating

M1.aappliedTime Elapsed Since BehaviorThe illegal downloading occurred more than three years prior to the hearing.
K1.aappliedTime Elapsed Since BehaviorThe improper handling of classified documents occurred nine years prior to the hearing.

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedJun 21, 2017
Answer filedJul 5, 2017
Hearing heldSep 26, 2017
Decision dateJun 15, 2018

Cite For

Pattern of Dishonesty and Rule Violations Under Guideline E
Mitigating Conditions Related to Time Elapsed Under Guidelines K and M
Consideration of the Whole-person Concept in Security Clearance Determinations

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: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct allegations under Guideline E. The applicant admitted to a pattern of dishonesty and rule violations, which included illegal downloading of proprietary information and a prior security clearance violation. The judge concluded that these actions raised significant concerns about the applicant's reliability and trustworthiness.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	From about May of 2011 until August of 2014, while employed by a defense contractor, Applicant used peer-to-peer file sharing services to illegally download approximately 5,000 songs and 60 movies to his personal computer.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Admitted	—	—	—

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 K (Handling Protected Information) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant had improperly taken home classified documents, which raised security concerns under Guideline K. However, the judge ultimately ruled in favor of the applicant on this allegation, citing the significant time elapsed since the incident as a mitigating factor.

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
2.a	In April of 2008, while employed by a defense contractor, Applicant, in clear violation of security clearance guidelines, knowingly brought home classified documents.	For Applicant	Removed Classified to Personal Space	Admitted	—	(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…	Credited Time Elapsed

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

Standardized Decision Profile

SEAD-4 Guideline M (Use of Information Technology) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's illegal downloading of proprietary information occurred more than three years prior to the hearing, which mitigated the security concerns under Guideline M. The applicant admitted to the allegations, and the judge ruled in favor of the applicant for the subparagraph under Guideline M.

¶	Allegation	Finding	Type	Response	Disqualifying (¶40)	Mitigating applied (¶41)	Mitigation
1.a	From about May of 2011 until August of 2014, while employed by a defense contractor, Applicant used peer-to-peer file sharing services to illegally download approximately 5,000 songs and 60 movies to his personal computer.	For Applicant	Unauthorized Modification or Destruction	Admitted	—	(a) so much time has elapsed since the behavior, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on …	—

Descriptive standardized rendering of a decided public case (Guideline M). 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. 17-01870 ) ) Applicant for Security Clearance )

For Government: Tara Karoian, Esq., Department Counsel For Applicant: Richard M. Steingard, Esq., Applicant’s Counsel

June 15, 2018 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On June 21, 2017, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines M, K, and E. The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance. 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 DOD on June 8, 2017.

Applicant answered the SOR on July 5, 2017, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on August 31, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on August 31, 2017, scheduling the hearing for September 26, 2017. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 through 5, which were admitted without objection. Applicant testified on his own behalf. Applicant presented 14 documents, which I marked Applicant’s Exhibits (AppXs) A through N, which were admitted without objection. DOHA received the transcript of the hearing (TR) on October 4, 2017.

FINDINGS OF FACT

Applicant admitted to all the allegations in SOR. (TR at page 7 line 17 to page 8 line 11.) After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 43-year-old employee of a defense contractor. (GX 1 at page 5.) He has been employed with the defense contractor since October of 2015. (GX 1 at page 13.) He has held a security clearance, intermittently, since 2004 or 2005. (TR at page 29 lines 22–25, and GX 1 at page 32.)

Guideline M - Use of Information Technology & Guideline E – Personal Conduct

1.a. and 3.a. From about May of 2011 until August of 2014, while employed by a defense contractor, Applicant used peer-to-peer file sharing services to illegally download approximately 5,000 songs and 60 movies to his personal computer (PC). (TR at page 40 line 6 to page 41 line 20, at page 43 line 9 to page 45 line 1, and at page 62 line 2.) Applicant freely admits to this, which he repeatedly, in his own words, styles as “foolish” behavior. (Id.)

Guideline K - Handling Protected Information & Guideline E – Personal Conduct

2.a. and 3.a. In April of 2008, while employed by a defense contractor, Applicant, in clear violation of security clearance guidelines, knowingly brought home classified documents. (TR at page 33 line 4 to page 40 line 5, and at page 47 line 13 to page 55 line 23.) He admitted this improper conduct when faced with a polygraph examination a year later in 2009. (Id.)

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, administrative judges apply the guidelines 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. According to AG ¶ 2(a), 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. Under Directive ¶ E3.1.15, an “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 access to classified information. 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 information.

Section 7 of Executive Order 10865 provides that adverse 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 M - Use of Information Technology

The security concern relating to the guideline for Use of Information Technology is set out 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 question the willingness or ability to properly protect sensitive systems, networks, and information. Information Technology includes any computer-based, mobile, or wireless device used to create, store, access, process, manipulate, protect, or move 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.

The guideline notes several conditions that could raise security concerns under AG ¶ 40. Three are potentially applicable in this case:

(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; and

(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.

Over a period of about three years, Applicant illegally downloaded proprietary information.

AG ¶ 41 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 41 including:

(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.

This clearly illegal conduct occurred more than three years prior to Applicant’s hearing. Due to this passage of time, this allegation is found for Applicant.

Guideline K - Handling Protected Information

The security concern relating to the guideline for Handling Protected Information is set out 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.

The guideline notes several conditions that could raise security concerns under AG ¶ 34. Two are potentially applicable in this case: (b) collecting or storing protected information in any unauthorized location; and

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

Applicant intentionally and improperly took home classified documents.

AG ¶ 35 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 35 including:

(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.

This clearly improper conduct occurred nine years prior to Applicant’s hearing. Due to this passage of an extensive period of time, this allegation is also found for Applicant.

Guideline E - Personal Conduct

The security concern relating to the guideline for Financial Considerations 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 or sensitive information.

The guideline notes several conditions that could raise security concerns under AG ¶ 16. Two are potentially applicable in this case:

(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; and

(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 individual may not properly safeguard classified or sensitive 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 government protected information;

(2) any disruptive, violent, or other inappropriate behavior;

(3) a pattern of dishonesty or rule violations; and

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

Applicant’s 2008 security clearance violation, coupled with his illegal downloading of proprietary information from 2011–2014 constitutes a clear pattern of dishonesty and rule violations. The evidence is sufficient to raise these disqualifying conditions.

AG ¶ 17 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 17 including:

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

(g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

I find that none of these mitigating conditions apply; and as such, Personal Conduct is found against Applicant. There is a clear pattern of rule violations, in 2008 with his clear security clearance violation, and from 2011–2014 with his illegal downloading.

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(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 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 facts and circumstances surrounding this case. I have incorporated my comments under Guidelines M, K, and E in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment.

Applicant has a distinguished history of working in the defense industry and is respected by his colleagues. He performs well at his job. (AppXs C~N.)

Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated/failed to mitigate the Personal Conduct security concerns.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are:

Paragraph 1, Guideline M: FOR APPLICANT

Subparagraph 1.a: For Applicant

Paragraph 2, Guideline K: FOR APPLICANT

Subparagraph 2.a: For Applicant

Paragraph 3, Guideline E: 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 interest to grant Applicant eligibility for a security clearance. National security eligibility for access to classified information is denied.

________________________ Richard A. Cefola Administrative Judge