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ISCR Case 04-00352.h1 — CASE

ISCR Case 04-00352.h1granted

Case Headnote

ISCR Case No. 04-00352.h1

grantedJun 30, 2007· Hon. Kathryn Moen Braeman· hearing

Summary

This case concerns a 52-year-old engineer whose security clearance was granted despite past issues under Guideline K (Handling Protected Information). Between 1993 and 1994, the applicant was found to have taken classified documents home at least six times and classified discs home at least three times. Additionally, he stored classified and SCI documents in an unsecure manner at his office during the same period. These actions led to the revocation of his Secret clearance and denial of SCI access by another government agency on February 3, 1995, and his subsequent termination.

The applicant successfully mitigated these serious security concerns. Over a decade after the incidents, he demonstrated significant behavioral reform and a strong commitment to security requirements. He proactively sought additional security training and counseling, and all of his current and former managers expressed full confidence in his ability to adhere to security protocols.

The judge determined that the applicant's past violations were adequately addressed and that he had taken substantial steps to ensure future compliance. Given the demonstrated reform and the unanimous recommendations from his managers, the applicant's security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated significant reform and positive changes in behavior over ten years.
All of the applicant's managers expressed confidence in his ability to comply with security rules.
The applicant took proactive steps to receive additional security training and counseling.

Conditions Referenced

Disqualifying

K.1.araisedMishandling Protected Information
K.1.braisedMishandling Protected Information
K.1.crejectedMishandling Protected Information
K.1.draisedMishandling Protected Information

Mitigating

K.2.aappliedReform and Rehabilitation
K.2.bappliedReform and Rehabilitation
K.2.cappliedReform and Rehabilitation

Key Rule Quoted

“"The applicant has demonstrated significant remorse over his earlier misconduct and has become alert to the importance of following all security rules."”

Procedural Posture

SOR issuedOct 4, 2006
Answer filedOct 24, 2006
Hearing heldMar 9, 2007re-assigned to judge on 03/05/2007
Decision dateJun 30, 2007

Cite For

Mitigation of Security Violations Under Guideline K
Demonstrating Reform and Rehabilitation After Past Misconduct
Importance of Managerial Support in Security Clearance Cases

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant had previously mishandled protected information, leading to significant consequences including termination. However, over a decade later, the applicant demonstrated substantial reform and compliance with security protocols, leading to a favorable decision for reinstatement of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
1.a	Applicant took classified documents home at least six times between 1993-1994.	For Applicant	Removed Classified to Personal Space	Admitted	—	—	—
1.b	Applicant took classified discs home at least three times between 1993-1994.	For Applicant	Removed Classified to Personal Space	Admitted	—	—	—
1.c	Applicant stored classified and SCI documents in a non-secure matter at his office between 1993-1994.	For Applicant	Improperly Compiled or Used Protected Info	Denied	—	—	—
1.d	Applicant’s Secret clearance was revoked and his SCI access denied by another Government agency on February 3, 1995, due to that information alleged in subparagraphs 1.a. through 1.c., above.	For Applicant	Unspecified Information Handling	Admitted	—	—	—

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

SYNOPSIS

KEYWORD: Security Violations

DIGEST: Applicant mitigated serious security concerns over his having mishandled protected information in 1993 to 1994 which led to severe ramifications for him, including being denied access and being terminated in 1995. Over ten years later he has demonstrated how he reformed himself and made positive changes in behavior. He now takes all security requirements seriously and persuaded he is willing and able to comply with security rules. Significantly, all of his managers from that earlier period and today have confidence in him. One observe that Applicant’s dismissal “made permanent the corrective action” to preclude any “errant behavior” in the future. His managers uniformly recommend that his security clearance be reinstated. Clearance is granted.

CASENO: 04-00352.h1

DATE: 06/30/2007

DATE: June 30, 2007

) ) In Re: ) ) ISCR Case No. 04-00352 ----------------------- ) SSN: ----------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE KATHRYN MOEN BRAEMAN

APPEARANCES

SYNOPSIS

Applicant mitigated serious security concerns over his having mishandled protected information in 1993 to 1994 which led to severe ramifications for him, including being denied access and terminated in 1995. Over ten years later he demonstrated how he reformed himself and made positive changes in behavior. He now takes all security requirements seriously and persuaded he is willing and able to comply with security rules. Significantly, all of his managers from that earlier period and today have confidence in him. One observe that Applicant’s dismissal “made permanent the corrective action” to preclude any “errant behavior” in the future. His managers uniformly recommend that his security clearance be reinstated. Clearance is granted.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant on October 4, 2006. The SOR detailed reasons why the Government could not make the preliminary positive finding that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. The SOR alleged specific concerns over Handling Protected Information (Guideline K) in paragraph 1 based on the revised (“new”) Adjudicative Guidelines (AG) issued on December 29, 2005, and implemented by the Department of Defense, effective September 1, 2006. Applicant responded to these SOR allegations in an Answer notarized on October 24, 2006, where he admitted allegations 1.a. and 1.b. and denied allegations 1.c. and 1.d. with explanations and attached letters of reference. He requested a hearing. On December 11, 2006, his counsel entered his appearance.

Department Counsel on December 8, 2006, indicated the case was ready to proceed. The matter was assigned to another judge on January 4, 2007. Subsequently, a mutually convenient date for hearing was agreed to. A Notice of Hearing, issued on February 22, 2007, set the matter for March 9, 2007, at a location near where Applicant works and lives. The case was re-assigned to me on March 5, 2007, because of the unavailability of the previous judge.

At the hearing the Government offered eight exhibits (Exhibits 1-8) which was admitted into evidence without objection; also admitted was one document for Administration Notice (AN) (Exhibit I). (TR 13, 21-25) Applicant testified, called five witnesses, and submitted Exhibits A & B. As Department Counsel indicated no objection, the documents were admitted into evidence. (TR 20-24) The transcript (TR) was received on March19, 2007. At the close of the testimony, Department counsel moved to amend SOR 1.d. to strike the word “top” and to add “SCI access denied.” His counsel objected to the use of the word “revoked” and argued there was no evidence that his secret clearance was revoked though there was evidence the other agency denied him access to SCI in December 1994. However, the Applicant’s counsel did not object to the Department Counsel’s amendment to SOR 1.d. One exhibit did establish this allegation, so the motion was granted to amend 1.d. to allege: “Your Secret clearance was revoked and your SCI access denied by another Government agency on February 3, 1995, due to that information alleged in subparagraphs 1.a. through 1.c., above.” (Exhibits 1, 2; TR 208-215)

FINDINGS OF FACT

After a complete and thorough review of the evidence in the record, and upon due consideration of that evidence, I make the following Findings of Fact:

Applicant, 52 years old, is an engineer who returned to work for Defense Contractor #1 in State #1 in August 2003 and continues to work as a senior systems engineer. He completed an electronic Security Clearance Application (SF 86) in September 2003 and is seeking a clearance. Previously, he had worked there from April 1975 to March 1995. In that period he had a Defense Department Secret security clearance granted in June 1975; later he was granted a Top Secret security clearance in January 1991 and also had been granted access to Sensitive Compartment information (SCI) in January 1991. He also had a CIA clearance granted in January 1993. However, he reported on his SF 86 in answer to Question 32: “To your knowledge have you ever had a clearance or access authorization denied, suspended, or revoked. . . ?” he stated, “Yes 1995/01/?? CIA,” Subsequently, he was unemployed from May to June 1995 after he was terminated from Defense Contractor #1. He then worked at another private sector company from 1995 to 1996 in hourly jobs. He worked at another company from June 1997 to April 2003 when it was dramatically down-sized; he then was unemployed from May to August 2003. (Exhibit 1; TR 29; 31-32; 64-69; 110)

Applicant’s current work for Defense Contractor #1 involves conceptual missile design. However, he has not had access to classified information, so there are limits to what he can do. (TR 70)

Applicant married in June 1979 and has two children born in 1979 ad 1985. His wife also has worked for Defense Contractor #1 for 25 years and has a security clearance. Applicant studied at a college in State #2 in 1995, but received no degree. (Exhibit 1; TR 28) He received an electrical engineering degree previously in State #3; he initially began work for Defense Contractor #1 as a coop student beginning in 1975. (TR 29-30) Handling Protected Information

Prior to the 1993-94 time frame, Applicant never had any security violations in his twenty years with the company. (TR 64) However, in the 1993-94 time period Applicant had multiple job responsibilities with Defense Contractor #1. He was working on three different classified programs at the request of management in three separate buildings. Two projects and buildings were close together, but the third building was at a more remote location, two or three miles away from his other assignments. (Answer; Exhibit 4; TR 33-37) Applicant’s Admitted Security Violations

1.a. Applicant took classified documents home at least six times between 1993-1994.

1.b. Applicant took classified discs home at least three times between 1993-1994.

In December 1994 a senior adjudication officer from another Government agency advised Applicant that he had undergone the organizations’s security procedures between April and November 1994 which included three polygraph examinations in June and July 1994. In those examinations Applicant provided information that raised security concerns. He had no authorization to remove and store classified materials from several documents and reports; but nevertheless, he took classified information home to update reports. Because he had repeatedly removed classified materials in an unauthorized manner, knowingly stored classified materials in an unauthorized manner, and did not review material stored in his office to confirm it was all stored appropriately, Applicant was “disapproved” for the SCI access request submitted; the agency also “revoked” his existing clearances. He was advised he could appeal the decision within 45 days from the date of receipt of the letter to provide corrected or new information or mitigating circumstances. (Exhibit 3) Applicant on January 14, 1994, did explain his involvement in three separate classified projects in three separate buildings. He advised that he had shown his program manager the letter of disapproval and his response. He admitted that “taking documents home did cross a line that shouldn’t have been crossed.” He admitted he had decided to “recalibrate” his thinking. (Exhibit 4)

Applicant admitted he took classified documents marked Secret to his home on at least six occasions and classified discs home on at least three occasions without authorization between 1993- 1994. He had no authorized storage container in his home. Also, he admitted he had processed classified discs marked Secret on his home computer and would change documents to a different format at home. He denied the documents were compromised as he transported them with the required double wrapping. However, he simply stored the classified documents in his briefcase overnight which does not comply with security regulations. Applicant had disclosed this practice where he intermittently took classified items home in polygraph examinations in June and July 1994 which were required for SCI access. He was advised in December 1994 that he was to be denied SCI access based on his “deliberate disregard for security practices and procedure.” He admitted he knew that by his actions he was violating security rules. He was given an opportunity to respond but his only justification was “his need to get home to take his children out of day care and the inconvenience of not having transportation to go back” to a building which had secure facilities. He did not have a safe in the remote building. After he advised the company subsequently of the denial of his SCI access, the company itself launched its own investigation and took steps to preclude Applicant from having access to classified information. A February 1995 report submitted by the corporate chief of industrial security to the Defense Investigative Service (DIS) reported Applicant’s security violations in a Memorandum entitled: ISM Paragraph 1-304 - Possible Compromise of Classified Information. (Answer, Exhibits 2, 3, 4, 5, 6, 7, 8; TR 35-47; 50-52; 56-57; 83; 89-98; 102; 112)

Applicant admitted he “cut corners” and had no excuse. He conceded that if a document was marked “Secret” that it should be treated that way. (TR 99-100; 103) His motivation in violating the security rules was “really just to get the job done.” (TR 63)

Contested Security Violations Concluded Adverse to Applicant

SOR 1.c. Applicant stored classified and SCI documents in a non-secure matter at his office between 1993-1994.

Applicant denied both in his Answer and at the hearing that he had improperly stored classified and/or SCI documents in his office as he considered the papers there only “tidbits”as only the completed document would be classified. However, the Special Adjudication Officer’s report included Applicant’s admission that “over the years” he had “collected a substantial number of classified materials and have store them inappropriately.” Although the polygraph officer requested that Applicant review the material in his office to check for classified documents, Applicant refused to do so because he believed such a review would be too time consuming. He insisted he never took any SCI documents to his office and never had any documents there that were marked classified and improperly stored. He did admit he had a page from an SCI study that was marked “For Official Use Only.” (Answer; Exhibits 2, 3, 4, 5, 6,7, 8; TR 47-50; 81-83; 87-88) A witness confirmed that to his knowledge Applicant never removed any SCI documents from a secure facility.

Applicant explained that the reason he did not review all the documents in his office in 1993- 1994 was that he was confident he did not have classified documents unsecured in his office. Also, it would have been a lengthy procedure; and he had only a limited time commitment to that SCI project.(TR 111-112) Applicant was an authorized classifier in that period and determined that the information in his office was not classified. However, on cross-examination he admitted that “everything is subject to interpretation.” (TR 61; 83-84) Today if there was a dispute on classification, he would go to a classification manager to resolve the issue. (TR 84-87)

1.d. Applicant’s Secret clearance was revoked and his SCI access denied by another Government agency on February 3, 1995, due to that information alleged in subparagraphs 1.a. through 1.c., above.

Applicant admitted he was denied SCI access. The records from that agency also documented that they revoked his Secret clearance also. (Exhibit 3) Even though he took some corrective actions, Defense Contractor #1 in March 1995 decided to terminate Applicant’s employment as a result of these deliberate security violations. Applicant did not contest the termination. (Exhibits 1, 5; TR 57-61) Consequently, his DoD clearances were never under investigation or review as they were administratively terminated. Applicant’s Receptivity to Counseling or Remedial Security Training

Since that 1993-1994 period of the admitted security violations, Applicant has demonstrated significant remorse over his earlier misconduct. He has become alert to the importance of following all security rules. (TR 72-76; 80-81)

Also, at the suggestion of his attorney, Applicant sought additional security training in February and March 2007 from a consultant in the security field who provided security information in two PowerPoint sessions with him. During this one-on-one security training Applicant had the opportunity to ask questions via telephone after reviewing slides. Applicant also reexamined with this security professional his violations from 1993-94. The security consultant will continue to be available to the Applicant for questions and clarifications. (Exhibit B; TR 76-79; 109; 182-185) With his expertise, the consultant was able to put the security rules in context for Applicant so that he could understand why those rules were created. (TR 112-113) In addition, Applicant took a security class online at his own initiative at his workplace. He also recently took a three-hour security class that everyone at the defense contractor facility was required to take. (TR 108)

In March 2007 Applicant explained what was different today about his approach to security. He answered that “being fired from a job certainly opens up your eyes.” He admitted his thinking at the time of the 1993-1994 incidents was wrong as he was more focused on getting the job done than on complying with the security rules. He understands more clearly now that he has a lot at stake. Also, since key managers went “through all the hoops” to bring him back, he would not want to disappoint them. (TR 105-107)

Also, although not formally qualified as an expert, I considered the expertise and impressive credentials of the security professional who provided training to Applicant and offered his views on Applicant’s current seriousness about security matters. Consequently, I give substantial weight to his conclusions that Applicant “fully understands the rules now.” He provided his expert opinion that Applicant is “very serious and he’s very earnest in complying with those rules to the letter.” (TR 186-187) The consultant explained that Applicant realized “in retrospect” that he should have followed the security rules. He believes that Applicant now fully understand that he should not have taken classified documents to his home. (TR 192-194)

References A chief engineer and company director at Defense Contractor #1 was Applicant’s supervisor at the time of the security violations that led to his dismissal. He acknowledged that the pressure of supporting multiple projects stressed Applicant to the point of “unacceptable behavior which led to his dismissal.” He assessed Applicant as having “sound” intentions as his goal was to meet the need of the program even though he did not have an option to judge the rules and make his own exceptions. Consequently, he continues to view Applicant as “fundamentally trustworthy.” Also, he stated that Applicant also possesses talents that are of great value to the national defense. He concluded that Applicant has learned the lesson on the “uncompromising nature of information security rules” and believes that he will in the future abide by them. He believes Applicant’s dismissal “made permanent the corrective action that will preclude any errant behavior hence forth.” Consequently, he recommended the re-instatement of his security clearance. (Exhibit A)

A manager, now retired from Defense Contractor #1 but who periodically is called back in to help out, testified on Applicant’s behalf and recommended that his security clearance be reinstated. He worked there for ten years as a manager of several small contracts valued at under $100,000. He himself held a Top Secret clearance with SCI access. He knew Applicant in 1990 as he was an engineering specialist who had expertise the manager needed to complete his contracts, so he would ask Applicant for his assistance. He also traveled with Applicant and socialized with him until Applicant left the company in 1995. He had requested SCI access for Applicant and subsequently learned that access had been denied by that agency. This manager was not a reporting official for Applicant’s work, so never evaluated him. However, he assessed Applicant’s work as being of a very high quality and viewed him as reliable and dependable. The manager noted that building he worked in had no appropriate area to work on or to store SCI material. This manager believes that Applicant never took SCI out of that controlled facility to his home. However, he was advised of Applicant’s improper removal of other classified material to his home. Neither the agency evaluating Applicant for SCI access nor Defense Contractor #1's management ever asked this manager for his views at the time of security violations in 1995. Nevertheless, he believes Applicant has now “paid for that mistake that he made” and “knows that what he did was wrong.” He does not believe that Applicant would ever “go down that road again.” He confirmed that Applicant will follow security rules going forward as he understands the seriousness of what he did. This manager has had informal contact with Applicant since he has been rehired. He recommended that Applilcant’s security clearance be reinstated based on his knowledge of his character. (TR 115-138)

The division president of Defense Contractor #1 in the 1993-1995 period who worked for the company for forty years also testified on Applicant’s behalf. He retired in 1996 and is now an independent consultant. During his tenure, he supervised 8,000 people. He knew Applicant as he would do studies or analysis on projects within the company. The president was working on a special project in 1995 and did not learn of Applicant’s termination until after he had been dismissed. He learned that human resources convened a panel to review the security violations and made a decision to dismiss Applicant. They did not consider any of the extenuating circumstances in the case. He was shocked as he assessed Applicant as a sincere, honest and conscientious person. He agreed that Applicant had made an error in judgment in taking classified materials home. He believed Applicant was very dedicated to the success of the programs where he was assigned to work. Later, the president was able to get Applicant’s termination status changed so that he could be re-hired as the president did not believe that “the punishment” fit the “crime.” In his experience at the corporation, he observed that normally Applicant’s security violations would have led to a suspension for a period of time, not a termination. The division president reported that he effected a change of status: instead of recording Applicant’s termination as “dismissal with prejudice” it was revised to state that Applicant was laid off because he did not have the proper security clearances. (TR 139-155)

A senior manager from the advanced program office who knew Applicant in the 1989 to 1995 period and was also involved in the decision to rehire him also testified on his behalf. He has had a DoD Top Secret clearance since 1977. In the earlier period he and Applicant worked as peers on classified projects on a daily basis. He assesses Applicant as honest, conscientious and trustworthy so he was surprised to learn of Applicant’s security violations in taking classified material home. He observed him to be generally very conscientious with respect to classified material. He recommended to a manager that Applicant be rehired as he assessed Applicant as a “brilliant individual” who could be a valuable asset even without a security clearance. Applicant is currently handling company proprietary information. He is “diligent in handling that information.” (TR 156-162) He assesses Applicant as having a heightened awareness today more so than any other employee in the company. He does not supervise Applicant, but Applicant does work for his programs. He recommended Applicant’s security clearance be reinstated. (TR 162-166)

A systems engineering manager who is now Applicant’s supervisor also testified on Applicant’s behalf. He has a Secret clearance and has been his supervisor since October 2005 and sees him on a daily basis. He was been evaluated as very good. He is diligent and dependable. He assesses Applicant as willing and able to follow company rules. He recommended that Applicant’s clearance be reinstated as he trusts him to follow the rules and finds him a real asset to his team. He stated that Applicant had taken the training offered by the company on how to handle proprietary information. (TR 168-177)

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines to consider in evaluating an individual's security eligibility which are divided into conditions that could raise a security concern and may be disqualifying and conditions that could mitigate security concerns. In deciding whether to grant or continue an individual's access to classified information, the mere presence or absence of any adjudication policy condition is not decisive. Based on a consideration of the evidence as a whole in evaluating this case, I weighed these relevant Revised Adjudication Guidelines:

Guideline K: Handling Protected Information

33. The Concern. Deliberate or negligent failure to comply with rules and regulatiions for protecting classified or other sensitive 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 responsibility for producing evidence initially falls on the Government to demonstrate that it is not clearly consistent with the national interest to grant or continue Applicant's access to classified information. Then the Applicant presents evidence to refute, explain, extenuate, or mitigate in order to overcome the doubts raised by the Government, and to demonstrate persuasively that it is clearly consistent with the national interest to grant or continue the clearance. Under the provisions of Executive Order 10865, as amended, and the Directive, a decision to grant or continue an applicant's security clearance may be made only after an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination, the Administrative Judge may draw only those inferences and conclusions that have a reasonable and logical basis in the evidence of record.

Section 7 of Executive Order 10865 specifically provides industrial security clearance 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.” The decision to deny an individual a security clearance is not necessarily a determination as to the allegiance, loyalty, and patriotism of an applicant. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a security clearance.

CONCLUSION

Handling Protected Information

The Government established security concerns over Applicant’s mishandling of protected information. Applicant’s conduct falls within conditions that could raise a security concern and may be disqualifying (DC) : (b), (c), (d). Applicant admitted his conduct was a violation of security rules when he made a decision to bring classified information and discs home where they could not properly be secured. When he disclosed these careless and expedient practices in polygraph examinations, he was denied access to SCI and his secret clearance with that agency was revoked. Although he denied it, there was also evidence that he improperly storied classified information in his office and refused a request to review the material there to assure its safeguarding. By his conduct in 1993 to 1994 he violated provision of the Industrial Security Manual for Safeguarding Classified Information (DoD 5220.22-M). While he provided an explanation for why he engaged in these improper security practices, he provided no defense that was persuasive to either the agency who denied him access or the company who terminated him when his access was denied. Significantly, Applicant promptly reported these security access denial issues to his manager and also provided details for the corporate security investigation. Nevertheless, despite some remedial steps on his part, the corporation made a decision to terminate him which he did not challenge. Subsequently, he had a variety of other corporate jobs. As he was highly regarded for this technical expertise within the company, he was ultimately re-hired in 2003. He remains highly regarded both by managers who knew him in his earlier tenure and by the managers who supervise him since he was re-hired in 2003. He established that he has reformed his conduct and provided sufficient evidence to demonstrate that he falls within mitigating conditions (MC). Under MC (a), Applicant has acknowledged his violations of security rules were serious and showed remorse. Given his twenty year history with the company, this behavior in taking these short-cuts was unusual and infrequent. He previously had a prior history of compliance with security rules. Any new violations are unlikely to recur as he as had to focus on the seriousness and importance of these security requirements. In addition, he has sought additional security training from a consultant in the field who could explain to him, not only the rule, but the rationale and basis for the rule. Not only does he predict such violations will not recur but all of the managers who know him testified favorably on his behalf and recommended that his security clearance be reinstated. He has taken correction action to overcome this serious problem. Also, these violations, while serious, did happen oven ten years ago. Now he has substantially reformed his conduct.

Notably, the chief engineer and company director who was Applicant’s supervisor at the time of the security violations that led to his dismissal continues to view Applicant as “fundamentally trustworthy.” Also, he noted that Applicant possesses talents that are of great value to the national defense. He concluded that Applicant learned the lesson on the “uncompromising nature of information security rules” and offered his assessment that Applicant will in the future abide by them. Consequently, he recommended the reinstatement of his security clearance.

Also, his current supervisor views his current work performance as good and recommended that his clearance be reinstated. All his supervisors and managers from the earlier work history and from the current work assignments express confidence in him as a reliable, trustworthy and a person of good judgment. Also they all recommended him that his security clearance be reinstated.

Thus, I conclude Applicant established MC (a). Significantly, he now shows a positive attitude toward the discharge of security responsibilities as demonstrated by his own testimony and the assessment of high level managers. Consequently, he also falls within MC (b). While there was no argument made that Applicant’s violations occurred because of improper or inadequate training, and MC (c) does not apply, nevertheless he sought out additional security training and has complied with all the current proprietary training required in his current position where he is uncleared but handles other sensitive information with appropriate safeguards.

Viewing him as a whole person, I find his transformation on the importance of security rules potent as his earlier motivation for taking these security short-cuts was not to advantage himself, but to juggle a heavy workload with his family responsibilities. While his rationale does not excuse his past misconduct, it demonstrates that his motivation as his goal was to meet a very heavy workload in a stressful environment of three projects conducted at three different locations. Significantly, his supervisor from the earlier period offered his assessment that Applicant’s 1995 dismissal “made permanent the corrective action that will preclude any errant behavior hence forth.”

After considering the Adjudicative Process factors and the Adjudicative Guidelines, I rule for Applicant on subparagraphs 1.a. through 1.d. under SOR Paragraph 1.

FORMAL FINDINGS

After reviewing the allegations of the SOR in the context of the Adjudicative Guidelines in Enclosure 2 and the factors set forth under the Adjudicative Process section, I make the following formal findings:

Paragraph 1. Guideline K: FOR APPLICANT

Subparagraph 1.a.: For Applicant Subparagraph 1.b.: For Applicant Subparagraph 1.c.: For Applicant Subparagraph 1.d.: For Applicant

DECISION

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

Kathryn Moen Braeman Administrative Judge

FOOTNOTES

FOR GOVERNMENT Candace Le’i, Esquire, Department Counsel

FOR APPLICANT William F. Savarino, Esquire, Cohen Mohr LLP This procedure is required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated January 2, 1992 (Directive), as amended by Change 4, April 20, 1999.

Applicant did receive a copy of the DoD Directive 5220.6 which was sent with his Statement of Reasons (SOR) on September 29, 2006. (TR 8; 14)

While on January 8, 2007, the Joint Personnel Adjudication System (JPAS) database reflected that Applicant was separated from his employment on December 21, 2006, and that he had requested that he no longer be processed for a security clearance, Department Counsel subsequently learned from his counsel on January 12, 2007, that Applicant did wish to pursue a security clearance. The JPAS database then reflected that Applicant was currently employed and being sponsored for a security clearance by his employer. Applicant was never informed that his Department of Defense top secret clearance had been revoked and never received a Statement of Reasons during that period; consequently, he did not appeal. He did appeal the CIA denial of his SCI access and did report their decision to deny him SCI access to his manager at the time. Defense Contractor #1 then made a corporate decision to deny him access to all classified information in February 1995 and to terminate him in March 1995. He did not contest this decision as he knew he had done something wrong in mishandling protected information. (Exhibits 1, 3, 8; TR 198-199; 203-206) The organization is now known as the Defense Security Service (DSS). Although not formally qualified as an expert, the witness testified on his background in the National Industrial Security Program since its inception in 1985 and his previous involvement in the Defense Industrial Security Program beginning in 1972. He had twenty years of military and twenty years of civilian experience at the Department of Defense at DSS. When he retired in 1990, he was the Deputy Director for the Industrial Security Program. Subsequently, he has been a corporate security manager and consultant. (TR 179-188; 189-192) The consultant was paid to provide the training and paid to appear at the hearing. (TR 188) His expertise in security matters was established by these credentials.

While the briefing materials that the consultant provided did not include any specific information about the problem of removing classified documents to a residence, he did cover that point in his oral discussions with the Applicant. (Exhibit B; TR 194-195) Also, the former president was critical of the company’s decision to terminate Applicant without providing for enough due process. For example, there was no procedure to allow anyone to be an advocate for Applicant. Executive Order No. 10865 § 7.

33. Conditions that could raise a security concern and may be disqualifying include: (b) collecting or storing classified or other protected information at home or in any other unauthorized location; (c) loading, drafting, editing, modifying, storing, transmitting, or otherwise handling classified reports, data, or other information on any unapproved equipment including but not limited to any typewriter, word processor, or computer hardware, software, drive, system, gameboard, handheld, “palm” or pocket device or other adjunct equipment;. (g) any failure to comply with rules for the protection of classified or other sensitive information. 35. Conditions that could mitigate security concerns include: (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 individuals current’ reliability, trustworthiness, or good judgement; (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 vioaltions were due to improper or inadequate training.