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ISCR Case 08-05351.h1 — CASE

ISCR Case 08-05351.h1granted

Case Headnote

ISCR Case No. 08-05351.h1

grantedNov 30, 2009· Hon. Mary E. Henry· hearing

Summary

A 52-year-old senior engineer for a Department of Defense contractor was granted a security clearance despite concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline M (Use of Information Technology). The allegations stemmed from the applicant's admitted misuse of a work computer to access pornography over a two-year period, which violated company policy and raised concerns about potential vulnerability to coercion.

The applicant successfully mitigated these concerns by demonstrating a significant and sustained change in behavior. He ceased accessing pornography sites after his termination in 2005 and has maintained a clean record since. He also disclosed his past conduct to his current employer, who subsequently monitored his computer use for two years without incident.

The decision to grant the clearance was influenced by the applicant's explanation that his past behavior was linked to the trauma of his son's death, a circumstance deemed unlikely to recur. The applicant's consistent good conduct and transparency with his current employer further supported the mitigation of the initial security concerns.

Why the Applicant Prevailed

The applicant ceased accessing pornography sites after being terminated for misuse of company equipment.
He disclosed his past conduct to his current employer, who monitored his computer use for two years without incident.
The applicant's past behavior was linked to the trauma of his son's death, which is unlikely to recur.

Conditions Referenced

Disqualifying

AG ¶ 13(a)raisedSexual Behavior of a Criminal Nature
AG ¶ 13(c)raisedSexual Behavior That Causes Vulnerability to Coercion
AG ¶ 13(d)raisedSexual Behavior Reflecting Lack of Discretion
AG ¶ 40(e)raisedUnauthorized Use of an Information Technology System

Mitigating

AG ¶ 14(b)appliedBehavior Unlikely to Recur
AG ¶ 14(c)appliedBehavior No Longer Serves as a Basis for Coercion
AG ¶ 41(a)appliedBehavior Occurred Under Unusual Circumstances

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedApr 27, 2009
Answer filedMay 22, 2009
Hearing heldAug 28, 2009
Decision dateNov 30, 2009

Cite For

Mitigation of Security Concerns Related to Past Sexual Conduct Under Guideline D
Mitigation of Personal Conduct Issues Due to Personal Trauma
Successful Demonstration of Rehabilitation After Termination for Misuse of Information Technology Systems Under Guideline M

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 D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's past sexual behavior, which included accessing pornography on a work computer, raised security concerns under Guideline D. However, the applicant successfully mitigated these concerns by demonstrating a significant change in behavior and the absence of any further incidents since his termination in 2005. The judge ruled in favor of the applicant on all allegations under this guideline.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
2.a	Applicant admitted that he had a concern that his wife would learn about his pornographic activities. This concern could make him vulnerable to coercion, exploitation or duress. In addition, Applicant viewed pornography on his work computer, which was by his co-workers. The government has established its prima facie case under AG ¶ 13(c) and 13(d).	For Applicant	Online Sexual Misconduct	Admitted	(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress (d) sexual behavior of a public nature or that reflects lack of discretion or judgment	—	—

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

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's personal conduct concerns were mitigated. The applicant had previously accessed pornography on his work computer, which violated company policy, but he ceased this behavior after being terminated for it. The judge concluded that the applicant's past conduct does not cast doubt on his reliability and trustworthiness, leading to a favorable decision.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a–3.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 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: granted

The judge addressed concerns under Guideline M regarding the unauthorized use of information technology systems. The applicant admitted to accessing pornography websites on his work computer, which violated company policy. However, the judge found that the applicant had mitigated these concerns by demonstrating a significant change in behavior and a lack of recurrence of the misconduct since his termination.

¶	Allegation	Finding	Type	Response	Disqualifying (¶40)	Mitigating applied (¶41)	Mitigation
1.a	Applicant accessed pornography web sites on his work computer on many occasions over a period of two years. He knew that this conduct violated his company’s polices on computer use, but he did it anyway. The government has established a prima facie case under AG ¶ 40(e).	For Applicant	Unauthorized Use of System	Admitted	(e) unauthorized use of any information technology system	(a) so much time has elapsed since the behavior, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on …	Claimed Other
1.b	specific text not stated in this decision	For Applicant	Unspecified IT Misuse	Unknown	—	—	—

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. 08-05351 SSN: ) ) Applicant for Security Clearance )

For Government: Francisco Mendez, Esquire, Department Counsel For Applicant: Pro Se

November 30, 2009 ______________

STATEMENT OF CASE

______________

HENRY, Mary E., Administrative Judge:

Based upon a review of the case file, pleadings, exhibits, and testimony, I conclude that Applicant’s eligibility for access to classified information is granted.

Applicant submitted his Security Clearance Application (SF 86) on March 22, 2007. The Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline M (Use of Information Technology Systems), Guideline D (Sexual Conduct), and Guideline E (Personal Conduct) on April 27, 2009. 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. Applicant acknowledged receipt of the SOR on May 6, 2009. He answered the SOR in writing on May 22, 2009, and requested a hearing before an administrative judge. DOHA received the request on May 27, 2009. Department Counsel was prepared to proceed on July 30, 2009, and I received the case assignment on August 5, 2009. DOHA issued a notice of hearing on August 7, 2009, and I convened the hearing as scheduled on August 28, 2009. The government offered six exhibits (GE) 1 through 6. GE 1, GE 2, and GE 4 to GE 6 were received and admitted into evidence without objection. Applicant testified on his own behalf. He submitted five exhibits (AE) A through E, which were received and admitted into evidence without objection. DOHA received the transcript of the hearing (Tr.) on September 4, 2009. I held the record open until September 11, 2009, for Applicant to submit additional matters. He timely submitted two exhibits, AE F and AE G, without objection. The record closed on September 11, 2009.

Procedural and Evidentiary Rulings

Notice

Applicant received the hearing notice on August 17, 2009. (Tr. 9.) I advised Applicant of his right under ¶ E3.1.8 of the Directive to 15 days notice before the hearing. Applicant affirmatively waived his right to 15 days notice. (Tr. 9-10.)

Evidentiary Ruling

At the hearing, Applicant did not specifically object to GE 3, which is a page from the Report of Investigation (ROI) containing information on an interview. Applicant was advised that this evidence may not be admissible and then asked if he objected to its admissibility. After a discussion, Applicant agreed to the admission of GE 3. (Tr. 15-16.)

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a, 2.a, 3.a, and 3.bof the SOR, with explanations. He also provided additional information to support his request for eligibility for a security clearance.

Applicant, who is 52 years old, works as an senior engineer for a Department of Defense contractor. He began his employment with this company in February 2006. Applicant’s performance evaluations reflect that he generally meets his performance objectives and occasionally exceeds his performance objectives. In his 2008 performance evaluation, he received favorable comments about his high-quality work and ability to “hit the ground running.” He successfully completed his tasks and successfully aided a program in its critical phase. He has not had any disciplinary issues at this job. Applicant enlisted in the United States Army in 1975 and served on active duty until 1983. Following his discharge from the Army, Applicant worked in private industry, including other federal contractor positions. He has held a security clearance for most of the last 34 years, without any violations or accusations of mishandling classified information. He also returned to school. He received a bachelor’s degree in 1997 and a master’s degree in March 2003. He completed the course work for his Ph.D, but he has not written his dissertation and is not presently working on it or enrolled in school. Applicant has three hobbies: motorcycling, amateur radio operating, and scuba diving. He worked with his state to develop a program which improves motorcycle safety and is a certified motorcycle safety trainer. He trains other amateur radio enthusiasts, and he is training to become a search, rescue, and recovery diver.2

Applicant and his wife married in 1980 and had two sons. His older son, who is 28 years old, is a member of the United States Navy and works as a youth pastor in a church where he lives. Applicant’s younger son joined the United States Marine Corps, where he worked as a military policeman. On November 15, 2002, his younger son, at age 20, was killed performing his duties in the Marine Corps. To the best of Applicant’s knowledge, his son’s death is still under investigation.3

His 20-year-old son’s death devastated him, his wife, and his older son. Following his son’s death, his wife received medical care for depression for a period of time. She also attended grief counseling. Applicant briefly attended a grief counseling program to support his wife, but refused any other form of counseling. Instead, he internalized all his grief. He began suffering from insomnia, which affected his ability to do his job. Applicant completed his master’s degree in March 2003, about four months after his son died. He expected some type of recognition from his employer for this accomplishment. He did not get any recognition or a promotion.5

Just before the first anniversary of his son’s death, Applicant conducted an internet search for “porcelain dolls” on his computer. He wanted to buy his wife a doll for her collection and as gift. He hoped this gift would help her feel better. His internet search led to an innocuous link, which he opened and learned that it was actually a pornographic site. He closed the link immediately. However, about a month later, in late 2003, he searched for the site again. Thereafter, he began accessing pornographic sites and chat rooms on his computer. At first, he accessed the sites once a month, then twice a month, then weekly, and sometimes daily. He would break off his internet pornographic activities for weeks or months, but then he would return to the sites and chat rooms, even though he felt ”absolutely horrid” when he did so.6

Applicant described his pornography activities in two ways. He viewed pornography sites and spent a lot of time in pornography chat rooms. He denies deliberately accessing or seeking out child pornography sites or receiving such sites by e-mail. He remembers seeing pictures of young women, who he believed were in their twenties.7

Applicant worked daily with six co-workers. His work area had a back room, where four computers were installed in cubicles with low partitions. Staff could view what he was doing on the computer. Applicant’s job required him to have computer access. He and three other co-workers had computers. The two remaining co-workers and the three co-workers who worked the evening and night shift also used these four computers.8

Applicant’s supervisor told him, informally, to “stop what he was doing” without specifically mentioning his pornographic activity. He knew what she meant when she made this statement to him. When he did not end his conduct, his employer fired him for misuse of its computer equipment in November 2005. Applicant described his termination as “hitting rock bottom.” He decided to cease his pornographic activities. He quit accessing pornographic computer sites “cold turkey” and successfully achieved his goal because he did not have access to an office computer for three months. He never accessed pornography sites on his home computer, which he kept in plain view of his wife.9

To his knowledge, Applicant is the only individual who was fired for misuse of a computer. He acknowledged that his pornography viewing violated company policy and that he knew he violated company policy when he accessed these sites.10

In February 2006, Applicant interviewed for his present position. During his interview, he advised the manager interviewing him that his prior employer fired him for misuse of company equipment. He did not tell the interviewer that his misuse related to pornography. During his intake interview, which occurred within two or three days after he began his job, he told the security officer the full reason for his termination by his previous employer. Because of his disclosure, his current employer monitored his computer use for two years. His first two performance evaluations contain a performance objective related to compliance with computer and network use policies. Both times his employer evaluated his performance on these goals as “meets objectives.” His employer removed this performance goal from his 2008 performance plan.11

Applicant acknowledged that he did not tell his wife the true reason for his termination in 2005. He explained that he decided not to tell her because he was concerned for her welfare and ashamed of what he had done. He recently told his wife the true reason for his termination. At first, she was very angry. They talked. At her suggestion, he started counseling in August 2009 to understand the reasons for his conduct. Since he had no past history of this conduct and his only vice is smoking, he believed the change in his behavior began with his son’s death in 2002 and the ensuing problems of insomnia and anger. He never actively participated in grief counseling and still feels responsible for his son’s death because he encouraged him to join the Marines.

Applicant indicated that for a long period of time, he was concerned that his wife would learn about the real reason for his termination. Since telling her, he is no longer concerned that someone else would tell her or hold this information over him as a threat.13

The record does not contain Applicant’s personnel records related to his termination. The security investigator interviewed the records custodian for his prior employer and prepared a one-paragraph summary of the interview. According to the records custodian, Applicant’s personnel file reflects that co-workers noticed Applicant viewing inappropriate internet sites and reported his conduct. His employer confiscated his computer and examined his hard drive, which revealed multiple visits to pornographic sites, including child pornography. Applicant raised a concern about this report because he was never told that he was fired for child pornography. He acknowledged that child pornography may have been found on his computer, but he denies he sought it out or placed child pornography on his computer. He does not believe he viewed child pornography, but he could not be certain.14

Applicant’s former employer forwarded his computer to the Federal Bureau of Investigation (FBI) for review. The FBI conducted a CART review of Applicant’s computer hard drive. The CART review located a number of images of suspected child pornography and forwarded the drive and other collected or derivative evidence to another office. Neither the FBI nor the United States Attorney took any further action. The CART review is not explained. The record contains no evidence explaining the extent of the search of Applicant’s computer filed.15

Applicant could look at his internet explorer file history, a software program, which showed the sites he had visited. He did not know how to access his hard drive. At times, he encountered problems shutting down the pornographic web sites he visited. Sometimes when he attempted to close the web site, the web site would cascade to multiple sites and open new web sites. To stop this cascading, he shut down his computer.16

POLICIES

When evaluating an applicant’s suitability for a security clearance, the 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 used 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense 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, an applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An 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 an 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 M, Use of Information Technology Systems

AG ¶ 39 expresses the security concern pertaining to use of information technology systems:

Noncompliance with rules, procedures, guidelines or regulations pertaining to information technology systems may raise security concerns about an individual's reliability and trustworthiness, calling into question the willingness or ability to properly protect sensitive systems, networks, and information. Information Technology Systems include all related computer hardware, software, firmware, and data used for the communication, transmission, processing, manipulation, storage, or protection of information.

Under AG ¶ 40, the following disqualifying condition raises a security concern in this case:

(e) unauthorized use of a government or other information technology system.

Applicant accessed pornography web sites on his work computer on many occasions over a period of two years. He knew that this conduct violated his company’s polices on computer use, but he did it anyway. The government has established a prima facie case under AG ¶ 40(e).

Applicant may mitigate the government’s security concerns under AG ¶ 41. The following mitigating conditions may apply in this case:

(a) so much time has elapsed since the behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment. Applicant’s conduct occurred during a specific period in his life. His 20-year-old son died in 2002 under tragic circumstances. Four months after his son’s death, he received his master’s degree. His employer failed to acknowledge his accomplishment in any way. Although devastated by his son’s death, Applicant never participated in grief counseling. Instead, over time, his grief began to surface in other ways, such as insomnia and an inability to focus on work and many activities. Just over a year after his son’s death, Applicant started viewing pornography sites on his work computer, something he had not done in the past. Department Counsel argues that Applicant accessed the pornography sites to get back at his employer for not recognizing his accomplishments a few months earlier. The time between Applicant’s son’s death and the failure to recognize Applicant’s educational accomplishment is only four months, an insufficient length of time for anyone to overcome the unexpected and tragic death of a child.

Applicant lost his job in November 2005 because of his conduct. His termination made him realize that he needed to change his behavior and he did. In the last four years, he has not accessed pornography sites or misused his work computer. He told his current employer the reason for his dismissal. Because of his disclosure, his employer monitored his computer usage for two years. His performance standard reflected that he followed company policy and did not view pornography or misuse his work computer. Applicant’s inappropriate conduct occurred four years ago and has stopped. There is little likelihood that it will occur again because the tragic death of his son is an unusual event and such an event is highly unlikely to occur again. Because he otherwise acted appropriately and has changed his attitude and behavior, his past conduct does not cast doubt on his reliability and trustworthiness. Applicant has mitigated the government’s security concerns under Guideline M.

Guideline D, Sexual Behavior

AG ¶ 12 expresses the security concern as:

Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.

AG ¶ 13 describes conditions that could raise a security concern. The following conditions may be disqualifying in this case:

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted;

(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress; and, (d) sexual behavior of a public nature and/or that reflects lack of discretion or judgment.

Applicant admitted that he had a concern that his wife would learn about his pornographic activities. This concern could make him vulnerable to coercion, exploitation or duress. In addition, Applicant viewed pornography on his work computer, which was by his co-workers. The government has established its prima facie case under AG ¶ 13(c) and 13(d).

Viewing pornography is not illegal, although possession of child pornography is illegal under federal and state law. Applicant denies he sought out child pornography or received any child pornography by e-mail. The custodian of the records for Applicant’s former employer stated that security found pornography, including child pornography, on his computer, but the custodian provided no information which explains how the security staff determined that Applicant had actually viewed child pornography. The FBI conducted a review of Applicant’s computer hard drive and found suspect child pornography. The FBI referred its findings to another office and the United States Attorney. No action was taken. Like the personnel records, the FBI report fails to provide concrete details about the findings on Applicant’s computer hard drive. The existence of possible child pornography on his computer hard drive by itself is insufficient to establish that Applicant actually viewed child pornography. The FBI has sophisticated computer software programs capable of developing hard evidence which would show when and how long Applicant viewed child pornography, if he did. The record contains none of this information. Accordingly, I conclude that he did not actually access any child pornography sites. Disqualify condition AG ¶ 13(a) is not established.

Applicant may mitigate the government’s security concerns about his sexual conduct under AG ¶ 14. The following conditions may be applicable in this case:

(b) the sexual behavior happened so long ago, 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; and

As previously stated, Applicant’s sexual conduct stopped four years ago when he lost his job. The death of his 20-year-old son devastated him. He failed to address his grief openly and in a positive way. Rather, he buried his grief. This decision and a feeling that his employer did not appreciate him eventually led to inappropriate use of his work computer. His son’s tragic and unexpected death is a highly unusual event and is unlikely to happen again. He has changed jobs and his evaluations reflect he is appreciated at his job. His past conduct does not case doubt upon his current reliability, trustworthiness, or good judgment. Applicant has mitigated the government’s security concerns under Guideline D. Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern pertaining to personal conduct:

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.

AG ¶ 16 describes conditions that could raise a security concern and the following condition disqualifying in this case:

(e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group.

Because of his inappropriate conduct in his work place for two years, Applicant placed himself in a position of vulnerability to exploitation, manipulation, or duress. Not only did his conduct place him in a position of vulnerability, his decision to lie to his wife about the reason for his job termination also put him in a position of vulnerability. For nearly four years, he feared that his wife would find out about his conduct. The government has established its prima facie case under AG ¶ 16(e).

AG ¶ 17 provides conditions that could mitigate security concerns:

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

Applicant stopped viewing pornography four years ago after he lost his job. From the beginning, he has acknowledged the reason for his termination to those who needed to know, except his wife whom he has told. He has taken responsibility for his conduct and acknowledged it was wrong. Since 2005, he has a new job and lives in a new location. He is doing well in his job, as shown by his performance appraisals. His son’s tragic death created the initial stressor, followed by his disappointment with his employer. He finally started counseling to understand why he viewed pornography, an action previously out of character for him, and to help with his loss of his son. He is a reliable employee and has always protected government information and materials. With his counseling, he is taking steps to assure that he will continue to protect government classified information and materials and not to place himself in a position where he is vulnerable to coercion, exploitation, duress, or pressure. Applicant has mitigated the government’s security concerns under Guideline E.

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 an 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 commonsense judgment based upon careful consideration of the guidelines and the whole person concept. The decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern.

The evidence in support of granting a security clearance to Applicant under the whole person concept is more substantial than the evidence in support of a denial. In reaching a conclusion, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. His decision to lie to his wife about the reasons for his termination also showed poor judgment. Applicant has otherwise exercised good judgment in his life. Seven years ago, Applicant and his wife received the most devastating news any parent can receive. Their 20-year-old son’s death under tragic circumstances set in motion a chain of events unfathomable by either. His wife, understandably, developed severe depression, for which she received treatment. Applicant handled his grief differently. He internalized much of his grief. His method of grieving caused other problems, including insomnia and loss of focus. Shortly after his son’s death, his employer disappointed him by not recognizing his educational accomplishments. Eventally, Applicant engaged in behavior uncommon to him. He deliberately violated his employer’s policy about computer use by viewing pornography on his work computer off and on for two years, conduct which he has acknowledged was wrong.

After his termination, Applicant decided he needed to correct his behavior and he did. He told his new employer the reasons for his termination in November 2005, and agreed to have his work computer monitored. After two years of monitoring his computer usage, his employer stopped monitoring when Applicant demonstrated that he could be trusted. The relationship of a husband and wife is personal and should not be scrutinized for decisions made. Knowing his wife and understanding how she was coping with their son’s death, Applicant made a decision personal to them. He worried for a long time that she would find out the actual reason for his termination. Had he not told her the truth about his termination, this worry could be a source of vulnerability for coercion, exploitation, duress, or pressure for him to compromise classified information. Since she now knows about his inappropriate conduct, this security concern has been mitigated.

Applicant’s problems started after his son’s death. Although the initial devastation has passed, the loss he feels remains. He recognizes that he needed to explore all the issues related to his son’s death and his subsequent conduct. With his wife’s support, he started counseling. Applicant’s outside activities as a scuba diver, motorcyclist, and amateur radio operator can provide different outlets for his feelings. Applicant has taken the appropriate steps to assure that his inappropriate conduct will not occur in the future.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his sexual conduct, personal conduct, and misuse of information technology systems.

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 M: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Paragraph 2, Guideline D: FOR APPLICANT

Subparagraph 2.a: For Applicant

Paragraph 3, Guideline E: FOR APPLICANT

Subparagraph 3.a: For Applicant Subparagraph 3.b: For Applicant

CONCLUSION

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

MARY E. HENRY Administrative Judge