ISCR Case 04-10840.h1

Case Headnote

ISCR Case No. 04-10840.h1

grantedOct 31, 2007· Hon. Barry M. Sax· hearing

Summary

A 63-year-old engineer with a defense contractor was granted a security clearance despite allegations under Guidelines E (Personal Conduct), K (Handling Protected Information), and L (Outside Activities). The allegations included multiple security violations between 1984 and 2003, such as failing to secure classified containers and areas, not accounting for a classified document, and transferring a classified document to an unclassified server. His container privileges were suspended for one year in 1985, and he received a five-day suspension without pay in 2003.

Additionally, the applicant was alleged to have omitted his sole proprietorship, which refurbished vintage aircraft, from his 2004 Security Clearance Application (SF 86). He also did not report this business, or his involvement with two procurement companies that supplied aircraft parts to foreign governments, to his employer. However, the judge found his explanation credible that he considered the proprietorship a hobby and not reportable, and that his outside activities did not conflict with his employment or have security significance.

The judge determined that the applicant's violations ceased in 2004, demonstrating a significant change in behavior. His explanations for past conduct were deemed credible, indicating no intent to violate regulations. Ultimately, the judge concluded that the applicant's past issues did not pose a current risk to national security, and the security clearance was granted.

Why the Applicant Prevailed

The applicant's violations ended in 2004, indicating a significant change in behavior.
The applicant provided credible explanations for his past conduct, demonstrating a lack of intent to violate regulations.
The applicant's outside business activities were deemed not to conflict with his primary employment and lacked security significance.

Conditions Referenced

Disqualifying

K.34(c)raisedFailure to Comply with Rules for the Protection of Classified or Other Sensitive Information
K.34(g)raisedNegligent or Lax Security Habits That Persist Despite Counseling by Management
K.34(h)raisedLoading, Drafting, Editing, Storing, Transmitting, or Otherwise Handling Classified Reports, Data, or Other Information on Any Unapproved Equipment

Mitigating

K.35(a)appliedSo 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 Doubts on an Individual’s Current Reliability, Trustworthiness, or Good Judgment.
E.2.2.2appliedThe Falsification Was an Isolated Incident, Was Not Recent, and the Individual Has Subsequently Provided Correct Information Voluntarily.
E.2.2.3appliedThe Individual Made Prompt, Good-faith Efforts to Correct the Falsification Before Being Confronted with the Facts.

Key Rule Quoted

“A person seeking access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence.”

Procedural Posture

SOR issuedFeb 20, 2004
Answer filed—
Hearing held—
Decision dateOct 31, 2007

Cite For

Mitigation of Past Security Violations Under Guideline K
Credibility of Explanations for Personal Conduct Under Guideline E
Consideration of Outside Business Activities Under Guideline L

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

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant omitted material facts on a Security Clearance Application (SF 86), electronically submitted on or about February 20, 2004. In response to Question “6. List your employment activities, beginning with the present and working back seven years,” and including period of self employment. Applicant cited his work for his present employer, but failed to mention his ownership and operation, from 1984 to 2004, as sole proprietor of a business that refurbishes vintage aircraft. He considered the activity to be a not-for-profit hobby and not the type of activity required to be reported. In context, I find his explanation to be credible.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Other	Denied	—	(a) prompt, good-faith correction before being confronted	—
2.b	Applicant failed to report his ownership of the business cited in 2.a., above, and his business involvement with the two procurement companies cited in 3.a and 3.b., below, to his employer. However, Applicant’s outside activity does not appear to have any connection to or with his full time employment and therefore does not come within the scope of Company policy, as stated in General Policies and Procedures, Conflicts of Interest and Standards of Ethical Conduct and therefor lacks security significance.	For Applicant	Omission or Failure to Disclose	—	Denied	—	—	—
2.c	Alleges that Applicant failed to provide an amended security clearance application when advised by his present employers personnel that an SF 86 submitted or about February 20, 2004 contained errors. Applicant denies this allegation and states he does not have any specific recollection of this matter. A review of the Government’s exhibits does not reveal any document (s) supporting the allegation. Applicant points out that his SF 86 (GX 1) is “substantially complete” and what he did receive was a “Return Notice” stating that no SF 86 was required since it had been less than 15 years since his clearance was issued. He interpreted this letter to mean that he was not being asked to submit a new SF.	For Applicant	Omission or Failure to Disclose	—	Denied	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant omitted material facts on a Security Clearance Application (SF 86), electronically submitted on or about February 20, 2004. In response to Question “6. List your employment activities, beginning with the present and working back seven years,” and including period of self employment. Applicant cited his work for his present employer, but failed to mention his ownership and operation, from 1984 to 2004, as sole proprietor of a business that refurbishes vintage aircraft. He considered the activity to be a not-for-profit hobby and not the type of activity required to be reported. In context, I find his explanation to be credible.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Other

Denied

—

(a) prompt, good-faith correction before being confronted

—

2.b

Applicant failed to report his ownership of the business cited in 2.a., above, and his business involvement with the two procurement companies cited in 3.a and 3.b., below, to his employer. However, Applicant’s outside activity does not appear to have any connection to or with his full time employment and therefore does not come within the scope of Company policy, as stated in General Policies and Procedures, Conflicts of Interest and Standards of Ethical Conduct and therefor lacks security significance.

For Applicant

Omission or Failure to Disclose

—

Denied

—

2.c

Alleges that Applicant failed to provide an amended security clearance application when advised by his present employers personnel that an SF 86 submitted or about February 20, 2004 contained errors. Applicant denies this allegation and states he does not have any specific recollection of this matter. A review of the Government’s exhibits does not reveal any document (s) supporting the allegation. Applicant points out that his SF 86 (GX 1) is “substantially complete” and what he did receive was a “Return Notice” stating that no SF 86 was required since it had been less than 15 years since his clearance was issued. He interpreted this letter to mean that he was not being asked to submit a new SF.

For Applicant

Omission or Failure to Disclose

—

Denied

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
1.a	On or about September 28, 1984, Applicant did not intentionally or negligently fail to properly secure a DoD security container, in violation of paragraph 14.a.(3) of the NISPOM, dated March 1984.	For Applicant	Unspecified Information Handling	Denied	—	—	—
1.b	On or about June 18, 1985, Applicant did not intentionally or negligently fail to properly secure a DoD security container, in violation of paragraph 14.a.(3) of the NISPOM, dated March 1984. His container privileges were suspended for one year.	For Applicant	Unspecified Information Handling	Denied	—	—	—
1.c	In about February 1986, Applicant failed to obtain a receipt for a classified document he had loaned to a co-worker and could not account for its location, in violation of paragraphs 12.a., 12.b., and 12.c. of the NISPOM, dated March 1984.	Against Applicant	Failure to Safeguard or Secure	Admitted	—	—	—
1.d	Between April 1997 and October 1997, Applicant failed to comply with approved AIS (Automated Information Systems) audit requirements at his company, in violation of paragraphs 8-102.b.(9) and 8-303 of the NISPOM, dated January 1995.	Against Applicant	Failure to Safeguard or Secure	Admitted	—	—	—
1.e	Between November 1997 and December 1997, Applicant failed to comply with AIS approved audit requirements at his company, in violation of paragraphs 8-102.b.(9) and 8-303 of the NISPOM, dated January 1995.	Against Applicant	Failure to Safeguard or Secure	Admitted	—	—	—
1.f	On or about November 28, 2001, Applicant failed to properly secure the H-2 Protected Area at his company, in violation of paragraph 5-207 of the NISPOM, dated January 1995, and his company’s written policy regarding 'Closed Area Security Procedures.' He was verbally counseled by his supervisor.	Against Applicant	Failure to Safeguard or Secure	Admitted	—	—	—
1.g	On or about December 5, 2001, Applicant failed to properly secure the H-2 Protected Area at his company, in violation of paragraph 5-207 of the NISPOM, dated January 1995, and his company’s written policy regarding 'Closed Area Security Procedures.' He was verbally counseled by his supervisor.	Against Applicant	Failure to Safeguard or Secure	Admitted	—	—	—
1.h	On or about May 2, 2002, Applicant failed to properly secure the H-2 Protected Area at his company, in violation of paragraph 5-207 of the NISPOM, dated January 1995, and his company’s written policy regarding 'Closed Area Security Procedures.' He was verbally counseled by his supervisor.	Against Applicant	Failure to Safeguard or Secure	Admitted	—	—	—
1.i	On or about September 17, 2002, Applicant failed to properly secure the H-2 Protected Area at his company, in violation of paragraph 5-207 of the NISPOM, dated January 1995, and his company’s written policy regarding 'Closed Area Security Procedures.' He was verbally counseled by his supervisor.	Against Applicant	Failure to Safeguard or Secure	Admitted	—	—	—
1.j	On or about December 7, 2002, Applicant failed to secure a classified container at his company, in violation of paragraphs 5-100 and 5-303 of the NISPOM, dated January 1995.	Against Applicant	Failure to Safeguard or Secure	Admitted	—	—	—
1.k	On or about April 17, 2003, Applicant transferred a classified document onto an unclassified server, in violation of paragraphs 5-100 and 8.501.c.(3) of the NISPOM, dated January 1995, as amended May 1, 2000. He was verbally counseled by his supervisor and was given a five-day suspension from work without pay.	Against Applicant	Cross Domain Violation	Admitted	—	—	—

Allegation

Finding

Type

Response

Disqualifying (¶34)

Mitigating applied (¶35)

Mitigation

1.a

On or about September 28, 1984, Applicant did not intentionally or negligently fail to properly secure a DoD security container, in violation of paragraph 14.a.(3) of the NISPOM, dated March 1984.

For Applicant

Unspecified Information Handling

Denied

—

1.b

On or about June 18, 1985, Applicant did not intentionally or negligently fail to properly secure a DoD security container, in violation of paragraph 14.a.(3) of the NISPOM, dated March 1984. His container privileges were suspended for one year.

For Applicant

Unspecified Information Handling

Denied

—

1.c

In about February 1986, Applicant failed to obtain a receipt for a classified document he had loaned to a co-worker and could not account for its location, in violation of paragraphs 12.a., 12.b., and 12.c. of the NISPOM, dated March 1984.

Against Applicant