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ISCR Case 07-10378.h1 — CASE

ISCR Case 07-10378.h1granted

Case Headnote

ISCR Case No. 07-10378.h1

grantedMay 14, 2009· Hon. Joan Caton Anthony· hearing

Summary

A 36-year-old married mother of two, with prior U.S. Navy service and a security clearance from a government contractor, was granted a security clearance after addressing concerns under Guideline E (Personal Conduct) and Guideline K (Handling Protected Information).

The Statement of Reasons included four allegations: failing to ensure classified hard drives were removed from surplus computers, negligently leaving a NATO classified document unsecured on her desk overnight, negligently leaving a classified room unlocked overnight, and negligently leaving another classified document unsecured on her desk overnight. These allegations raised disqualifying conditions K.1 and E.2.

However, the applicant successfully mitigated these concerns, applying mitigating conditions K.2 and E.2. The judge noted her demonstrated commitment to improving her handling of classified information, positive character references from co-workers and supervisors regarding her diligence, and the employer's determination that no classified information was compromised.

Why the Applicant Prevailed

The applicant demonstrated a commitment to improving her handling of classified information after the incidents.
Character references from co-workers and supervisors highlighted her diligence and compliance with operating rules.
The employer determined that there was no compromise of classified information despite the alleged incidents.

Conditions Referenced

Disqualifying

K.1raisedHandling Protected InformationThe applicant was alleged to have negligently failed to comply with rules for protecting classified information.
E.2raisedPersonal ConductThe applicant's conduct raised security concerns under the Personal Conduct guideline.

Mitigating

K.2appliedHandling Protected InformationThe applicant took steps to avoid future security violations by implementing unofficial forms and logs.
E.2appliedPersonal ConductThe applicant's character references and performance evaluations supported her integrity and compliance.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedOct 9, 2008
Answer filedDec 29, 2007
Hearing heldApr 1, 2009
Decision dateMay 14, 2009

Cite For

Mitigation of Security Concerns Under Guideline K Through Proactive Measures
Character References Supporting Applicant's Integrity and Compliance
The Importance of Evaluating the Whole Person Concept in Security Clearance Decisions.

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: granted

The judge found that the applicant mitigated the personal conduct concerns under Guideline E. The formal finding was for the applicant on the allegation regarding personal conduct, indicating that the applicant's actions did not warrant disqualification.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Denied	—	—	—

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: granted

The judge found that the Applicant successfully mitigated the security concerns related to handling protected information under Guideline K. The allegations included incidents of failure to secure classified information, but the judge ruled in favor of the Applicant, concluding that there was no compromise of classified information and that the Applicant had taken steps to improve her handling of sensitive information.

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
1.a	Applicant failed to ensure that all classified hard drives were removed from computers before they were assigned to surplus or released to individuals or groups outside of the organization.	For Applicant	Failure to Safeguard or Secure	Denied	—	—	—
1.b	Applicant negligently failed to properly secure a NATO classified document and had negligently left the document unsecured on her desk overnight.	For Applicant	Failure to Safeguard or Secure	Denied	—	—	—
1.c	Applicant negligently failed to properly secure a classified room which was consequently left unlocked overnight.	For Applicant	Failure to Safeguard or Secure	Denied	—	—	—
1.d	Applicant negligently failed to properly secure a classified document and negligently left the document unsecured on her desk overnight.	For Applicant	Failure to Safeguard or Secure	Denied	—	—	—

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

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 07-10378 ) ) Applicant for Security Clearance )

For Government: Robert E. Coacher, Esquire, Department Counsel For Applicant: Leslie McAdoo Gordon, Esquire

May 14, 2009 ______________

STATEMENT OF CASE

______________

ANTHONY, Joan Caton, Administrative Judge:

After a thorough review of the case file, pleadings, testimony, and exhibits, I conclude that Applicant rebutted and mitigated the Government’s security concerns under Guideline K, Handling Protected Information, and Guideline E, Personal Conduct. Her eligibility for a security clearance is granted.

Applicant signed an Electronic Questionnaire for Investigations Processing (e- QIP) Security Clearance Application (SF-86) on March 22, 2007. On October 9, 2008, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR), detailing security concerns under Guideline K, Handling Protected Information, and Guideline E, Personal Conduct. The 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 revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006. On December 29, 2007, Applicant answered the SOR in writing. She elected to have a hearing before an administrative judge. The case was assigned to me on February 26, 2009. I convened a hearing on April 1, 2009 to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.

The Government called no witnesses and introduced three exhibits, which were marked Ex. 1 through 3 and admitted to the record without objection. The Government provided the following provisions from the National Industrial Security Program Operating Manual (NISPOM) for administrative notice: Chapter 5, Section 1 and Section 3 (January 1995); Chapter 5, Section 1 and Section 3 (February 28, 2006). The Government’s administrative notice documents were marked as Hearing Exhibit (HE) 1.

Applicant testified on her own behalf and called three witnesses. She introduced 12 exhibits, which were identified and marked as Ex. A through Ex. L. Ex. A was admitted without objection. Department Counsel objected to the admission of a paragraph in Ex. B that appeared at the bottom of page one and the top of page two of the exhibit. I sustained the objection and agreed not to give the paragraph weight in my consideration of the evidence. The remainder of Ex. B was admitted without objection. Ex. C and D were admitted without objection. Department Counsel objected to a sentence in Ex. E as speculative. Applicant withdrew the sentence from Ex. E, and the exhibit was then admitted without objection. Ex. F through Ex. L were then admitted without objection. Applicant provided two documents for administrative notice, which were marked as HE 2 and HE 3.

DOHA received the transcript (Tr.) of the hearing on April 10, 2009.

FINDINGS OF FACT

The SOR contains four allegations of disqualifying conduct under AG K, Handling Protected Information, and one allegation under AG E, Personal Conduct. Applicant denied all allegations in the SOR. (Answer to SOR.)

Applicant is 36 years old, married, and the mother of two young children. From 1992 to 1996, she served on active duty in the United States Navy and held a security clearance. In 2000, she earned an Associate of Arts degree in computer information systems. She is employed by a government contractor. As a government contract employee, she has held a security clearance and has been trained in the protection of classified information. (Ex. 1; Tr. 120-122, 161-162.)

The SOR alleges four incidents in which Applicant deliberately or negligently failed to comply with rules and regulations for protecting classified or other protected information. The first incident occurred in May 2002, when Applicant was employed as a supervisor in a government contractor’s asset management program. Her job required that she maintain an inventory of all classified computers used by the contractor, and she was responsible, as a supervisor, for certifying that any classified hard drives were removed from computers before they were assigned to surplus or released to individuals or groups outside of the organization. (SOR ¶ 1.a.; Tr. 123-124.)

In May 2002, an employee sought to acquire computers that the contractor was no longer using for donation to a youth group. The employee’s request generated a procedure and the completion of a form certifying that the computers to be released had been stripped of their classified hard drives and contained no classified information. (Tr. 125-126.)

It was Applicant’s job to ensure that the process was carried out according to established rules and procedures for protecting classified information. The process required four signatures for release of the computers when an individual or group requested them. First, Applicant took a form with the request to an official in her department. If the official approved the request, he signed the form. Applicant took the signed form back to her work area. As the supervisor of her work unit, she was responsible for ensuring that all hard drives were removed from the computers to be transferred. Two signatures from Applicant’s work unit were required on the form. Applicant had the authority to do the work herself or to assign two subordinates to remove the hard drives from the computers. Whoever did the work, signed the form. After Applicant and her subordinates completed their tasks, an individual from security physically inspected all computers that were to be transferred to verify that they had been declassified and were cleared for transfer. If he found the computers were properly declassified, he then signed the form. (Tr. 126-127.)

The day the alleged security violation took place was a Friday afternoon in May 2002. Applicant took the form to the office of the department official to obtain his concurrence and signature. She assigned a subordinate to remove the hard drives from the computers. Each computer had two hard drives. When the subordinate had removed all of the hard drives, he signed the form to certify that the computers had been declassified. Without physically inspecting the computers to verify that the hard drives had all been removed, Applicant signed the form to verify that the computers had been declassified. This was an error because, as the third signatory and the supervisor, she was responsible for visually inspecting each of the computers to ensure that all hard drives had been removed in the declassification process. The security official then came and visually inspected all of the computers with Applicant and signed and certified that the computers were declassified and ready for transfer to the employee who had requested them. (Ex. 2 at 3; Tr. 127-129.)

The employee took possession of the computers and took them to his home for the weekend before transferring them to a youth group. The following Monday, the employee came to see Applicant and presented her with a hard drive he said he had found in one of the computers. He said he had found a third hard drive mounted in an unusual place in one of the computers. The employee provided no documentary proof to corroborate his assertion that he had found the additional hard drive in one of the computers transferred to him by Applicant’s office. Additionally, the employee advised Applicant not to report that he had found the hard drive and to keep it as a confidence between them. Applicant ignored his advice and informed her management of the discovery of the hard drive. (Tr. 129-130.)

As a consequence, the government contractor removed Applicant from the contract and transferred her to another position within the company. The employer determined that Applicant’s action was not a security violation, and it was not reported as such. There was no compromise of classified information. However, the employer noted that Applicant had not complied with rules and regulations for protecting classified information. (Tr. 131-132.)

DOHA alleged that Applicant’s action violated DoD 5220.22-M, NISPOM, Chapter 5, Section 1 (January 1995). The relevant provisions read as follows:

5-100. General. Contractors shall be responsible for safeguarding classified information in their custody or under their control. Individuals are responsible for safeguarding classified information entrusted to them. The extent of protection afforded classified information shall be sufficient to reasonably foreclose the possibility of its loss or compromise.

5-103. Perimeter Controls. Contractors authorized to store classified material shall establish and maintain a system to deter and detect unauthorized introduction or removal of classified material from their facility. The objective is to discourage the introduction or removal of classified material without proper authority. If the unauthorized introduction or removal of classified material can be reasonably foreclosed through technical means, which are encouraged, no further controls are necessary.

(HE 1.)

The second Guideline K incident alleged by DOHA at SOR ¶ 1.b. occurred when Applicant was working in a non-classified area. Her work station computer was unclassified. Her duties included formatting resumes, scanning documents for various purposes, and creating PowerPoint presentations. Employees from within the organization came to Applicant for assistance in scanning and formatting documents. (Tr. 132-134.)

In October 2004, an employee (customer) working in another part of the company brought some documents compiled by countries in the North Atlantic Treaty Organization (NATO) and asked Applicant to scan them into one document for her supervisor. The documents were not classified, and the customer did not represent them as such. One of the documents was stamped “NATO restricted,” which was not a classification description but a distribution description. Applicant scanned the materials as requested, and, after doing so, provided the scanned document to a fellow employee to format as requested by the customer. The fellow employee worked on the documents on her computer at home and noticed that one of the documents was stamped “NATO restricted” and concluded that the document was classified. She suspected that a security violation had occurred. She reported the incident to the facility security officer (FSO), who concluded that Applicant had negligently failed to properly secure a NATO classified document and had negligently left the document unsecured on her desk overnight, in violation of DoD 5220.22-M, NISPOM, Chapter 5, Sections 1 and 3 (January 1995). (Ex. 3, 8-14; Tr. 50-63, 134-138.)

The NISPOM provisions relied on by DOHA in support of this allegation specify procedures for safeguarding and storing information defined as classified by the U.S. government. (HE 1)

The customer who sought Applicant’s assistance in scanning the documents appeared as a witness. She was familiar with the sections of the NISPOM that relate to NATO security. Her testimony contradicted the FSO’s conclusion that Applicant had failed to comply with NISPOM rules and regulations for protecting and storing NATO restricted material. (Tr. 55-57.)

Section 7 of the NISPOM defines security requirements for compliance procedures established by the U.S. Security Authority for NATO (USSAN) for safeguarding NATO information provided to U.S. industry. Section 10-702 of the NISPOM provides the following definition of NATO Restricted:

10-702. NATO RESTRICTED. NATO RESTRICTED does not correspond to an equivalent U.S. classification. NATO RESTRICTED does not require a PCL [employee personnel clearance] for access. An FCL [facility clearance] is not required if the only information to which the company will have access is NATO RESTRICTED. IS [Information Systems] handling only NATO RESTRICTED information do not require certification or accreditation. NATO RESTRICTED information may be included in U.S. unclassified documents. The U.S. document must be marked, “THIS DOCUMENT CONTAINS NATO RESTRICTED INFORMATION.” NATO RESTRICTED material may be stored in locked filing cabinets, bookcases, desks, or other similar locked containers that will deter unauthorized access.

(HE 3.)

The third Guideline K incident alleged by DOHA at SOR ¶ 1.c. occurred on April 28, 2006. DOHA alleged that Applicant violated Sections 1 and 3 of Chapter 5 of the NISPOM (February 28, 2006) by negligently failing to properly secure a classified room which was consequently left unlocked overnight. The allegation is based on an incident report, dated May 5, 2006, prepared by the FSO employed by Applicant’s employer. (Ex. 3 at 15-16; Tr. 142-144.)

In her report, the FSO concluded Applicant was negligent in failing to properly secure the classified room and provided the following information: On Monday, 1 May [2006] at 1630, the FSO was doing her evening check on the secured Room #25 that contains two classified computers and two GSA safes. The door to Room #25 was shut but left unlocked. The FSO checked the room for any open containers or documents that may have been left out. The classified computers were found to be down graded properly with the classified hard drives secured in the safes. The safes were found to be securely locked and there were no documents left out in the room. An inventory of the documents was taken. None were missing.

[Applicant] was the last person to sign out on Room #25 on Friday, 28 April 2006. Unfortunately, on that day the FSO and her back up were not in the office [to] do the evening check on the room. On Monday evening, when the room was found shut but unlocked, the sign out sheet posted on the door before entering Room #25 noted that no one used the room on Monday. The FSO questioned all employees who had keys to the Room. This action assured the FSO that the room had not been used on Monday, 1 May 2006.

It is concluded that Room #25, the safe or any classified documents in the safe, the classified hard drives or the desktop computers [sic] were not compromised. [Applicant] has been instructed to ensure the door is locked and properly shut when she is leaving either during work hours or at the end of the day. Furthermore, the FSO will train an alternate back up to the back up so that the door is checked every day.

(Ex. 3, at 15-16.)

Applicant provided for administrative notice a calendar for April and the first week of May 2006. The calendar reflected that April 28 fell on a Friday in 2006. She also provided a copy of the employer’s log sheet for secured Room #25 for the period of April 24, 2006 to May 8, 2006. At the top of the log sheet is the following statement: “I certify that I have unlocked, locked, or checked Room #25 at the time and date indicated by my signature below.” On the log sheet were spaces for an individual to sign if he or she opened the secured room, closed and locked the secured room, or checked the secured room to ensure that it was properly locked. (Ex. A; HE 2.)

The log sheet reveals that Applicant certified by her signature that she opened and entered secured Room #25 at 8:55 am on April 28, and she closed and locked the secured room at 10:55 am on April 28. No other employees signed the log sheet to indicate they had opened or locked secured Room #25 on Friday, April 28, 2006. The log sheet shows that the room was not checked by the FSO or other facility security staff on Friday, April 28. There are no entries for Saturday, April 29, 2006. (Ex.A.)

The log sheet shows that on Sunday, April 30, 2006, no employee opened or locked the secured room #25. On Sunday, the FSO checked secured room #25 and signed her name at 12:00.1 The log sheet also shows that on Monday, May 1, 2006, no employees opened or locked secured room #25. The log sheet shows that on Monday, May 1, 2006, the FSO checked secured room #25 at “18:30,” and signed the log. (Ex. A; HE 2; Tr. 144-148.)

The FSO’s report makes no mention of her inspection of the room on Sunday, April 30, 2006, when she apparently found the secure room locked. No one had signed the log indicating access or departure after Applicant left the room on Friday, April 28, and the FSO’s inspection on Sunday, April 30. If the room was locked when it was checked by the FSO on Sunday, her conclusion that Applicant failed to lock the door on Friday was not credible. (Ex. A; Tr. 147-148.)

The fourth Guideline K incident, alleged by DOHA at SOR ¶ 1.d., occurred on September 12, 2006, when a senior manager, who was not her direct supervisor, came to Applicant’s desk, along with an employee who reported to the supervisor. Applicant’s desk was located in an unclassified area, and she had the only operating scanner in the building. As a part of her regular duties, she routinely carried out requests by other employees and managers who brought her documents to scan and format. The manager presented Applicant with a document containing approximately five pages. The pages on the document were folded back, revealing a top page containing an unclassified signature. The manager asked Applicant to scan the signature on the top page, put it on a compact disk (CD), and give the CD to a second employee, who would take it to a classified room and put it in a safe. (Tr. 70-73, 100-101, 157.)

The manager did not tell Applicant or the other employee that the five-page document contained classified information. There were no visible cover pages or conventional color coded markings normally used by the government contractor employer to indicate that the document contained classified information. The manager expected that the employee she supervised would return the document to a classified safe after the signature had been scanned and formatted. (Tr. 76, 102-103.)

Applicant scanned the signature, put it on a CD, and gave the CD to the second employee. The second employee left Applicant’s work area with the CD and took it to be stored in a classified safe. Applicant turned to other assigned work. The document, which she did not know contained classified information, remained on her desk. It was not unusual for individuals who asked Applicant to scan and format documents to leave them or to indicate that the documents did not need to be returned. Applicant did not look further at the document, and it remained there when she left at the end of the work day. (Ex. 3, at 17-18; Tr. 149-151, 153-154.)

When she arrived at work the next day, Applicant saw the document on her desk, looked closely at it, and discovered a page with the word “secret” stamped on it. She immediately took the document to the manager and told her what had transpired. The manager returned the document to the classified safe. Applicant was rebriefed on the handling of classified information. (Ex. 3 at 18; Tr. 166-167.)

DOHA alleged that Applicant negligently failed to properly secure a classified document and negligently left the document unsecured on her desk overnight, in violation of Sections 1 and 3 of Chapter 5 of the NISPOM (February 28, 2006). DOHA also alleged that Applicant’s conduct in failing to protect classified or sensitive information raised security concerns under the Personal Conduct adjudicative guideline.

Several of Applicant’s co-workers and supervisors provided letters of character reference on her behalf. They praised her as diligent, conscientious, truthful, dedicated, and a hard worker. They identified her as productive, dedicated to the mission of her office, and compliant with operating rules and regulations. Applicant’s performance evaluations from 2002 through 2007 reflected above average performance and initiative in learning new skills of value to the organization. (Ex. A; Ex. B; Ex. C; Ex. D; Ex. E; Ex. F; Ex. G; Ex. H; Ex. I; Ex. J; Ex. K; and Ex. L.)

For the past two years, Applicant has taken steps to avoid situations that might give rise to allegations of security violations in the future. She has created unofficial forms that she asks her customers to fill in when they ask her to carry out tasks. With these forms, she clarifies at the beginning of an assignment whether the work assigned to her is classified or unclassified. Additionally, she has created an unofficial log system for keeping track of classified material she is responsible for. She has learned to be less trusting and ask for clarification from higher levels of management when she is tasked with responsibilities related to classified information. (Tr. 158-159; 179-181.)

POLICIES

When evaluating an Applicant’s suitability for a security clearance, an administrative judge must consider the revised 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, the administrative judge applies these guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 2(c), 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 access to classified information will be resolved in favor of 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, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security 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 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 K, Handling Protected Information

AG ¶33 describes the Guideline K security concern as follows: “Deliberate or negligent failure to comply with rules and regulations for protecting classified or other sensitive information raises doubt about an individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard such information. . . .”

The Government properly conceded that it had failed to prove by substantial evidence the facts alleged in SOR ¶¶ 1.b. and 1.c. After my independent analysis, I agree. Accordingly, those allegations are concluded for Applicant.

In 2006, Applicant was cited for a security violation for allowing a classified document to remain on her desk, unprotected, overnight. The record testimony established that Applicant was asked by a program manager to scan and format an unclassified signature on an unclassified page of the document. The program manager failed to inform Applicant that other parts of the document that she could not see were classified, and the document was not overtly marked as classified according to the color code for classified information used by the government contractor employer. Applicant did not examine the document to see if it was classified, and on the information she had received, she had no reason to do so.

Applicant admitted that the document remained on her desk overnight. It was not unusual for Applicant to retain unclassified documents that she had worked on during the day. When she discovered the next morning that the document contained a classified marking, she immediately notified the program manager and returned the document to the manager.

I conclude that Applicant’s actions did not constitute deliberate or negligent failure to comply with rules and regulations for protecting classified or other sensitive information. Accordingly, I conclude that Applicant provided relevant and material facts to rebut the allegation at SOR ¶ 1.d. SOR allegation ¶ 1.d. is concluded for Applicant.

The remaining SOR allegation, ¶ 1.a., recounts that in 2002, Applicant signed required certifications that all hard drives had been removed from classified computers that were to be released as surplus for private use by a youth group. She did this without following required procedures that she, as the supervisor of the unit, physically examine the computers and independently review the previous certification of a subordinate. Applicant’s failure to comply with rules for the protection of classified or other sensitive information raises security concerns under AG ¶ 34 (g), which reads: “any failure to comply with rules for the protection of classified or other sensitive information.”

Two Guideline K mitigating conditions might be applicable to the facts alleged at SOR ¶ 1.a. AG ¶ 35(a) reads: “so much time has elapsed since the behavior, or it 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.” AG ¶ 35(b) reads: “The individual responded favorably to counseling or remedial security training and now demonstrates a positive attitude toward the discharge of security responsibilities.”

Applicant’s alleged security violation occurred in May 2002, and it is therefore not recent. The incident happened under unusual circumstances, and Applicant correctly reported to her facility security officer that she received a discrepant hard drive from the individual who took delivery of the declassified computers on behalf of a youth group. I conclude that, when viewed in light of Applicant’s present reputation for care and diligence, it is not likely that a similar incident will occur in the future, and this 2002 incident does not cast doubt on Applicant’s current reliability, trustworthiness, or good judgment. Her action did not result in the compromise of classified information. I conclude that AG ¶ 35(a) applies to the facts of Applicant’s case.

After her alleged security incidents, Applicant received remedial security training. She provided credible testimony about the attention she now gives to ensuring that she identifies and protects classified information entrusted to her care. I conclude that AG ¶ 35(b) also applies to the facts of Applicant’s case. Personal Conduct

The SOR concluded that Applicant’s personal conduct related to her failure to properly secure classified information, as alleged in SOR ¶¶ 1.a., 1.b., 1.c, and 1.d, raised doubts about her judgment, reliability, and ability to comply with laws, rules, and regulations. Under the Personal Conduct guideline “[c]onduct 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 information.” AG ¶15.

I have considered all of the Personal Conduct disqualifying conditions. Applicant was entrusted with a security clearance, which her employer relied upon in employing her. She was responsible for following her employer’s and the NISPOM’s policies for protecting classified information. I conclude that that the evidence in this case establishes that Applicant rebutted or mitigated the Government’s security concerns under Guideline K. I conclude that no additional disqualifying conditions apply to that conduct under the Personal Conduct adjudicative guideline. Accordingly, the Guideline E allegation in the SOR is concluded for Applicant.

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(a):

(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 eligibility for a security clearance must be an overall common sense 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 the facts and circumstances surrounding this case. Applicant is a mature adult. Several of the security incidents attributed to her were the result of miscommunication and misinformation. She has learned from her mistakes, and she has put in place a method to ensure she receives sufficient information to protect the classified information she is entrusted with. I observed Applicant carefully at her security clearance hearing. I found her to be a serious and responsible person. I believe it is highly unlikely that in the future she will fail to carry out any of the responsibilities of a person entrusted with a security clearance and the protection of classified information. I conclude that she is not a security risk at this time.

Overall, the record evidence leaves me with no questions or doubts as to Applicant’s judgment and eligibility and suitability for a security clearance, and I conclude Applicant rebutted and mitigated all security concerns arising under Guideline K and Guideline E.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline K: FOR APPLICANT

Subparagraphs 1.a. through 1.d: For Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

___________________________ Joan Caton Anthony Administrative Judge

FOOTNOTES

1 The record does not indicate whether the room was checked at 12:00 am or 12:00 pm.