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ISCR Case 08-04058.h1 — CASE

ISCR Case 08-04058.h1denied

Case Headnote

ISCR Case No. 08-04058.h1

deniedJul 30, 2009· Hon. LeRoy F. Foreman· hearing

Summary

A 34-year-old senior software consultant was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology Systems). The Statement of Reasons detailed multiple instances of misconduct leading to job terminations.

Specifically, the applicant was terminated in June 2002 for conducting personal business and using corporate resources on company time. A second termination occurred in March 2004 for illegally accessing pornographic websites while at work. A third termination in 2006 was for unsatisfactory performance. Furthermore, the applicant was alleged to have falsified material facts during a January 2008 interview with a security investigator, claiming he left his June 2002 employment due to lack of work and resigned from his March 2004 employment, contradicting the actual reasons for termination.

The judge found that the applicant failed to mitigate the security concerns related to personal conduct. The applicant's own admissions and the evidence presented supported the allegations of misconduct, leading to the denial of the security clearance application.

Why the Applicant Was Denied

The applicant did not mitigate security concerns based on personal conduct.
The applicant's admissions and the evidence presented supported the allegations of misconduct.

Conditions Referenced

Disqualifying

AG ¶ 16(a)raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts
AG ¶ 16(b)raisedDeliberately Providing False or Misleading Information
AG ¶ 16(c)raisedCredible Adverse Information in Several Adjudicative Issue Areas
AG ¶ 16(d)raisedCredible Adverse Information That Is Not Explicitly Covered Under Any Other Guideline
AG ¶ 16(e)raisedPersonal Conduct That Creates a Vulnerability to Exploitation

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the revised adjudicative guidelines (AG).”

Procedural Posture

SOR issuedNov 28, 2008
Answer filedJan 2, 2009
Hearing heldMay 20, 2009
Decision dateJul 30, 2009

Cite For

Disqualifying Conditions Under Guideline E Due to Personal Conduct Issues
Failure to Disclose Terminations on Security Clearance Application
Credibility Issues Related to Applicant's Testimony and Evidence Presented

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 several personal conduct allegations, including terminations for misconduct and falsification of information during the security clearance process. The applicant's security clearance was denied due to concerns about reliability and trustworthiness.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	The SOR alleges Applicant was terminated from a job in June 2002 for conducting personal business on corporate time and using corporate resources.	Against Applicant	Misuse of Employer Time or Resources	—	Denied	—	—	—
1.b	The SOR alleges Applicant was terminated in March 2004 for illegal connecting to pornographic websites while at work.	Against Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.c	The SOR alleges Applicant was terminated for unsatisfactory performance in 2006.	Against Applicant	Rules Violation at Workplace	—	Admitted	—	—	—
1.e	The SOR alleges he falsified material facts during an interview with a security investigator in January 2008 by telling the investigator he left his employment in June 2002 because of lack of enough work and he resigned from his employment in March 2004.	Against Applicant	Lack of Candor in Interview	Employment History	Denied	—	—	—
1.f	The SOR alleges he falsified material facts during an interview with a security investigator in January 2008 by telling the investigator he left his employment in June 2002 because of lack of enough work and he resigned from his employment in March 2004.	Against Applicant	Lack of Candor in Interview	Employment History	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 M (Use of Information Technology) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant rebutted the allegations regarding the use of information technology systems. The formal findings under Guideline M were in favor of the applicant, indicating no disqualifying conduct was established in this area.

¶	Allegation	Finding	Type	Response	Disqualifying (¶40)	Mitigating applied (¶41)	Mitigation
2.a–2.b	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant			—	—	—

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. 08-04058 SSN: ----------- ) ) Applicant for Security Clearance )

For Government: John B. Glendon, Esq., Department Counsel For Applicant: Greg D. McCormack, Esq.

July 30, 2009 ______________

STATEMENT OF CASE

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves security concerns raised under Guidelines E (Personal Conduct) and M (Use of Information Technology Systems). Applicant rebutted the allegations regarding use of information technology systems, but he did not mitigate security concerns based on personal conduct. Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application on December 22, 2005. On November 28, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny his application, citing security concerns under Guidelines E and M. 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 adjudicative guidelines (AG) promulgated by the President on December 29, 2005. Applicant received the SOR on December 17, 2008; answered it on January 2, 2009; and requested a hearing before an administrative judge. DOHA received the request on January 5, 2009. Department Counsel was ready to proceed on March 23, 2009, and the case was assigned to an administrative judge on March 26, 2009. It was reassigned to me on April 15, 2009. DOHA issued a notice of hearing on April 20, 2009, scheduling the hearing for May 20, 2009. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 8 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AX) A through C, which were admitted without objection. AX B consisted of seven documents, marked as B-1 through B-7; AX C consisted of six documents, marked as C-1 through C-6. I granted Applicant’s request to keep the record open until May 27, 2009, to enable him to submit a signed copy of AX B-1. The signed copy was timely submitted and received without objection.

On May 21, 2009, Department Counsel proffered two supplemental exhibits (GX 9 and 10). I admitted them over defense objection. Applicant submitted a statement in surrebuttal (AX D), which was admitted without objection. These exhibits are discussed in greater detail below. DOHA received the transcript on June 5, 2009, and the record closed on the same day.

Procedural and Evidentiary Rulings

Department Counsel proffered GX 9 and GX 10 in rebuttal to Applicant’s testimony at the hearing. His proffer is attached to the record as Hearing Exhibit (HX) I. Applicant’s counsel objected, and his comments are at HX II. On May 26, 2009, I issued an order admitting the supplemental exhibits and offering Applicant the option of submitting surrebuttal evidence or reopening the hearing (HX III). I based my ruling on the policy favoring development of a full and complete record set out in the Directive ¶ E3.1.19 and recognized by the Appeal Board in ISCR Case No. 04-12449 at 3 (App. Bd. May 14, 2007). I offered Applicant the option of reopening the hearing to protect his due process right to respond to the government’s evidence. On June 5, 2009, after Applicant submitted AX D in surrebuttal, I again offered Applicant an opportunity to reopen the hearing (HX IV). He declined the offer (HX V).

FINDINGS OF FACT

In his answer to the SOR, Applicant admitted the allegations in SOR ¶ 1.c. His admissions in his answer and at the hearing are incorporated in my findings of fact.

Applicant is a 34-year-old senior software consultant employed by a federal contractor. He has worked for his current employer since October 2008. He has held a security clearance since July 2003 (GX 2 at 1). The allegations in the SOR are based on his conduct while working for previous employers.

Applicant’s current supervisor for the past six months characterizes his performance as stellar (AX B-3). Two co-workers describe him as hardworking, reliable, and family oriented (AX B-4 and B-6). A former co-worker for two years considers him conscientious, enthusiastic, and knowledgeable (AX B-5). A former subordinate describes him as honest, knowledgeable, family-oriented, a “great all around guy,” and a good friend (AX B-7).

Applicant’s brother regards him as trustworthy, very reliable, and a trusted friend to many people (AX B-1). Applicant’s spouse, a licensed realtor for two and a half years, describes him as honest, open, a good husband and father, and “the most honest and generous person [she has] ever met” (AX B-2).

Applicant served on active duty in the U.S. Navy from January 1998 to December 2001, serving as an aviation electronics technician (AX A at 2). He held a security clearance while in the Navy (Tr. 29). His final evaluation report as a second class petty officer recommended early promotion (AX C-5). His evaluation report for the period from November 23, 2000, to March 15, 2001, placed him in the “must promote” category (AX C-6). He was awarded the Navy-Marine Corps Achievement Medal, the Navy “E” Ribbon, a flag officer letter of commendation, and the Navy Good Conduct Medal. He received an honorable discharge (AX C-1).

Applicant comes from a military family. His father retired as a chief petty officer (E-7) after 22 years of service. His brother served four years in the Navy as an aviation hydraulics mechanic (Tr. 27-28).

Applicant worked for a federal contractor as a network administrator from January to June 2002. He was terminated for “participating in activities that conflict with [the company’s] responsibilities” (GX 3). The notice of termination, dated June 10, 2002, informed Applicant that it was effective upon receipt, and it gave him two hours to clear out his personal belongings and return company equipment. According to the notice of termination, Applicant used a company computer to create graphic materials and conduct activities related to his personal business; he was counseled about appropriate work, home, and personal business-related activities on May 31, 2002 and June 3, 2002; his emails reflected that he was engaged in personal business; and he conducted “other activities” related to his personal business on the morning of June 7, 2002. Attached to the notice of termination was a printout of an image found on the “C” drive of Applicant’s company computer. The image included a representation of a tiger, a business name, and a toll-free telephone number (GX 4).

On June 26, 2002, Applicant sent an email from the “billing department” of his private business to his former employer, advising that he would return the company tools and cut up the company credit card (GX 5 at 2). On June 28, 2002, his former program manager sent an email to his personal business address, stating that his final travel and expense vouchers would not be paid until the company property was returned and a criminal complaint would be filed if the property was not returned by July 1, 2002 (GX 5 at 1). Applicant returned the company property on July 1, 2002 (GX 5 at 5). In January 2008, Applicant told a security investigator he left this job by mutual agreement because of lack of work, boredom, and low pay (GX 8 at 4). His testimony at the hearing was consistent with his statement to the security investigator (Tr. 39-40). He described his departure as friendly (Tr. 41). He testified he believed he was laid off, not terminated for cause (Tr. 44, 55). He testified he never saw the notice of termination until he saw the investigative file in his lawyer’s office (Tr. 64). Although the termination notice recites that he was counseled on May 31, 2002, and on June 3, 2002, about appropriate work, home, and personal business-related activities, Applicant testified he was never counseled about those topics (Tr. 66).

At the hearing, Applicant admitted storing the tiger image on the “C” drive of his office computer, but he testified he kept it as a motivational screen backdrop. He aspired to start his own company and be an internet service provider, but it never came to fruition (Tr. 68). He testified the telephone number in the image was a “fake number” that he made up, because the company did not exist (Tr. 69). He also testified he had a toll-free number for a short time, but he did not think he had an active toll-free number while working for this employer (Tr. 111). He admitted the email service offered by his private business was active, and he admitted he had a personal email account that ended with the company name, but he denied conducting personal business on his office computer (Tr. 70-71). He testified the business did not exist except as an e-mail server and empty web space (Tr. 77).

After the hearing, Department Counsel submitted two screen prints from the web site of Applicant’s web server, printed on May 21, 2009, to rebut Applicant’s testimony that the tiger image was for a company that did not exist. The first screen print recites that the company was founded in June 2000 and its materials copyrighted from 2000 to 2006 (GX 9). The second screen print recites that the company has been in business since 2000 and its materials copyrighted from 2000 to 2002. It recites the same toll-free telephone number as was listed on the tiger image (GX 10).

In surrebuttal to GX 9 and GX 10, Applicant stated that his web site was in the planning and design stages and was not an operating business up to and including the last days before he was fired. He submitted documentation that the domain name for his company was created on June 5, 2002. He stated that a new domain name is not enabled for 24 to 48 hours after it is created, that he was out-of-town on June 7, 2002, a Friday, and that he was terminated on the following Monday, June 10, 2002. He stated that the copyright dates were fictitious and designed to lend credibility to the company by making it appear as an established company. He stated he never took any formal steps toward copyrighting his materials. He denied using his company computer to acquire or perform any work on the website. He stated he did not recall if the toll-free number was in service before his termination. He maintained that the tiger image was an authorized background image on his company computer, and he denied placing any unauthorized or inappropriate materials on his computer (AX D).

Applicant did not apply for unemployment benefits after he left his job in June 2002 (Tr. 63). He worked intermittently as a truck driver until he found full-time employment with a federal contractor in November 2002 (Tr. 62-63). He worked for this federal contractor until May 2003.

Applicant changed jobs and worked for another federal contractor from May 2003 to March 2004. In mid-March 2004, his employer received an anonymous email alleging that Applicant owned a pornographic web site that included photos of his wife, inappropriately talked about his wife’s sexual practices and desires, provided other employees with email service on his web site, had an inappropriate relationship with a female supervisor, gave his passwords to subordinates not authorized to have them so that they could tend to tasks that were “beneath him,” and abused and mistreated subordinates (GX 2 at 4).

The anonymous email listed the address for a web site containing an advertisement for a “private companion.” The web site included a page entitled “Naughty or Nice,” containing suggestive photographs of Applicant’s wife (GX 6). Applicant testified the web site was owned and designed by his wife (Tr. 51). His wife’s web site does not have the same domain name as the tiger image that was the basis for Applicant’s termination in June 2002.

On March 31, 2004, Applicant’s employer notified the Defense Security Service that Applicant had been terminated as of that date for “illegally connecting to pornographic websites” at his work site (GX 2 at 1). The record does not reflect what evidence, if any, his employer considered other than the anonymous email.

In January 2008, Applicant told a security investigator that he resigned from this job because he felt he was being treated unfairly (GX 8 at 3). He testified he thought the complaint was resolved as unfounded until he was called into his manager’s office and told: “Your services are no longer required. We need your badges.” He left the manager’s office, contacted his immediate supervisor, and arranged to surrender his badges (Tr. 48-49).

Applicant denied using his office computer to create or visit the website containing the photographs of his wife. He also denied referring co-workers to the website (Tr. 114) or using his office computer to visit any other pornographic web sites (Tr. 51). The record does not contain any forensic evidence indicating that he visited pornographic web sites on his company computer.

Applicant worked as an IT Operations Manager for another employer (not a federal contractor) from March 2004 to December 2005. He was hired as a network administrator and help desk leader by a federal contractor in December 2005 (Tr. 33). When he submitted his e-QIP shortly after beginning this job, he answered “no” to question 22, asking if during the past seven years he had been fired, quit after being told he would be fired, left by mutual agreement following allegations of misconduct or unsatisfactory performance, or left a job for other reasons under unfavorable circumstances. After working for six to eight months, Applicant and his team were given duties with less responsibility, and Applicant became frustrated. While working at the help desk, he took off his headset and put the phone on “hold,” blocking all incoming customer calls to the help desk. Applicant was terminated for this behavior in March 2007 (GX 8 at 4; Tr. 36).

Applicant began working as a systems administrator for an information technology company in March 2007. He left that job and began working for his current employer in October 2008.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the revised adjudicative guidelines (AG). These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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.

Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is not necessarily a determination as to the loyalty of the applicant. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Guideline E, Personal Conduct

The SOR alleges Applicant was terminated from a job in June 2002 for conducting personal business on corporate time and using corporate resources (SOR ¶ 1.a), terminated in March 2004 for illegal connecting to pornographic websites while at work (SOR ¶ 1.b), and terminated for unsatisfactory performance in 2006 (SOR ¶ 1.c). It also alleges Applicant falsified his security clearance application by answering “no” to the question about his employment record and failing to disclose his two terminations under unfavorable circumstances in June 2002 and March 2004 (SOR ¶ 1.d). Finally, it alleges he falsified material facts during an interview with a security investigator in January 2008 by telling the investigator he left his employment in June 2002 because of lack of enough work and he resigned from his employment in March 2004 (SOR ¶¶ 1.e and 1.f).

The concern under this guideline is set out in AG ¶ 15 as follows:

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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

Five disqualifying conditions under this guideline are relevant:

AG ¶ 16(a): deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

AG 16(b): deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative;

AG ¶ 16(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 person may not properly safeguard protected information;

AG ¶ 16(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 person may not properly safeguard protected information. This includes but is not limited to consideration of . . . (3) a pattern of dishonesty or rule violations; [and] (4) evidence of significant misuse of Government or other employer's time or resources; and

AG ¶ 16(e): personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as . . . engaging in activities which, if known, may affect the person's personal, professional, or community standing.

Applicant’s failure to disclose his job terminations in June 2002 and March 2004 on his security clearance application raises AG ¶ 16(a). The information he provided to a security investigator in January 2008 about the circumstances of his termination raises AG ¶ 16(b).

The termination notice dated June 10, 2002, recited that Applicant was counseled about appropriate work, home, and personal business-related activities on May 31, 2002 and June 3, 2002. It recites that Applicant’s emails reflected that he was engaged in personal business, and that he was conducting “other activities” related to his personal business on the morning of June 7, 2002. The termination action on March 31, 2004, recites that Applicant illegally connected to pornographic websites while at work. The two termination notices raise AG ¶¶ 16(c), (d), and (e).

Since the government produced substantial evidence to raise the disqualifying conditions in AG ¶¶ 16(a) through (e), the burden shifted to Applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).

The tiger image found on Applicant’s computer on June 10, 2002, is apparently the basis for the allegation of computer misuse on June 7, 2002. There is no evidence showing what specific conduct prompted the counseling on May 31, 2002, and June 3, 2002. There also is no evidence of the content of the emails allegedly pertaining to personal business or the “other activities” allegedly conducted by Applicant on the morning of June 7, 2002.

Applicant’s testimony about the tiger image at the hearing may not have been completely candid. He testified he “made up” the toll-free telephone number on the image, but the same telephone number is currently displayed on his website. He also admitted deceptive business practices by displaying a misleading copyright date. On the other hand, he provided evidence that the web site was not registered until June 5, 2002, negating the likelihood of any related business activity before that date.

There is no evidence of Applicant’s email traffic in the record. The date the tiger image was placed on his computer is not established. The mere presence of the tiger image on his “C” drive does not establish that he created, modified, or otherwise used it for anything other than a computer screen backdrop. I conclude Applicant has rebutted the facts underlying SOR ¶ 1.a.

Applicant’s termination in March 2004 was for connecting to pornographic web sites. The only evidence of the basis for this termination is the anonymous email. There is nothing in the record reflecting what additional evidence, if any, his employer considered. The website address identified in the anonymous email is not the same as the domain name for the tiger image. Applicant identified the website in the anonymous letter as one owned and designed by his wife. He denied visiting pornographic websites on his company computer, and there is no evidence in the record contradicting his denial. As in the case of his June 2002 termination, there is no evidence of his email traffic or evidence of websites he visited. I conclude Applicant has rebutted the facts underlying SOR ¶ 1.b.

Applicant admitted the misconduct which was the basis for his termination in 2006. His admission in his response to the SOR and at the hearing is sufficient to establish the facts underlying SOR ¶ 1.c.

Regardless of whether Applicant’s two terminations in June 2002 and March 2004 were justified by the evidence, two issues must be resolved: (1) was he terminated under unfavorable conditions? and (2) did he know he had been terminated under unfavorable conditions?

On its face, the termination letter dated June 10, 2002, is clear and unequivocal. It was effective on receipt, and it gave Applicant two hours to clear out his personal belongings and return company equipment. It was followed by an email threatening legal action if he did not return all company equipment. I found Applicant’s testimony that he never received the termination notice implausible and not credible. I am satisfied that he was terminated for cause and knew it. I conclude the allegations in SOR ¶ 1.dare supported by substantial evidence and have not been refuted.

There is no evidence of a written notice to Applicant regarding his termination in March 2004. The documentary evidence establishes only that Applicant’s employer notified the Defense Security Service that he had been terminated for cause. Applicant testified, however, that he initially was informed the allegations against him were unfounded, but he was then called into the corporate office and told: “Your services are no longer required. We need your badges.” I am satisfied Applicant knew he had been terminated under unfavorable conditions. I conclude the allegations in SOR ¶ 1.e are supported by substantial evidence and have not been refuted.

Security concerns raised by false or misleading answers on a security clearance application or during a security interview may be mitigated by showing that “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts.” AG ¶ 17(a). This mitigating condition is not established because Applicant has never attempted to correct the falsifications.

Security concerns arising from personal conduct may be mitigated if “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.” AG ¶ 17(c). Applicant has left three jobs for federal contractors under unfavorable circumstances. While the basis for Applicant’s first two terminations may be questionable, his third termination clearly was justified. He falsified his security clearance application in December 2005, repeated his falsifications during a security interview in January 2008, and persisted in his falsifications at the hearing. His misconduct was serious, recent, frequent, and did not happen under unique circumstances. It raises doubts about his reliability, trustworthiness, and good judgment. I conclude AG ¶ 17(c) is not established.

Security concerns arising from personal conduct also may be mitigated if “the information was unsubstantiated or from a source of questionable reliability.” AG ¶ 17(e). The termination notice of June 2002 contained numerous allegations of computer misuse and two counseling sessions related to computer misuse. Except for the tiger image, there is no evidence showing the factual basis for the allegations. While the termination may have been justified, the record does not reflect what evidence Applicant’s employer considered. The evidence presented at the hearing falls short of “substantial evidence” of misconduct. To the extent that the termination notice of March 2004 relied solely on an anonymous email, it was based on evidence of “questionable reliability.” While Applicant’s employer may have considered other evidence in addition to the anonymous email, no such evidence was presented at the hearing. I conclude AG ¶ 17(e) is applicable. Guideline M, Use of Information Technology Systems

The SOR cross-alleges the conduct alleged in SOR ¶¶ 1.a and 1.bunder this guideline. Since Applicant rebutted the allegations in SOR ¶¶ 1.a and 1.b, the allegations under this guideline are resolved in his favor.

WHOLE PERSON CONCEPT

Under the whole person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. An 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 have incorporated my comments under Guideline E and J in my whole person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment.

Applicant is a mature adult who has served honorably in the U.S. Navy, worked for a succession of federal contractors, and held a clearance for many years. The justifications for his terminations in June 2002 and March 2004 are somewhat questionable, but the record reflects that the circumstances in both instances were unfavorable. While he may have felt he was treated unfairly, any unfairness does not justify his lack of candor during the security clearance process. After weighing the relevant disqualifying and mitigating conditions and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns based on his personal conduct. Accordingly, I conclude he has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

I make the following formal findings on the allegations set forth in the SOR, as required by Directive ¶ E3.1.25:

Paragraph 1, Guideline E (Personal Conduct): AGAINST APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: Against Applicant Subparagraph 1.e: Against Applicant Subparagraph 1.f: Against Applicant

Paragraph 2, Guideline M (Use of Information Technology Systems): FOR APPLICANT

Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant

CONCLUSION

In light of all of the circumstances, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

LeRoy F. Foreman Administrative Judge