ISCR Case 08-08260.h1

Case Headnote

ISCR Case No. 08-08260.h1

grantedOct 15, 2009· Hon. Erin C. Hogan· hearing

Summary

A 39-year-old software engineer, holding a security clearance since 2003, faced allegations under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline M (Use of Information Technology Systems). These concerns stemmed from his use of a work computer to access adult and dating websites, for which he received a warning letter for inappropriate internet use. Additionally, there was an investigation into an allegation that he solicited a minor over the internet using his home computer.

Disqualifying conditions were raised regarding personal conduct, use of information technology, and sexual behavior. However, the judge applied several mitigating conditions. The applicant had not repeated inappropriate internet use since 2006 and had maintained employment without incident since 2007. Crucially, the allegations concerning the solicitation of a minor were not substantiated by evidence, and the applicant was never charged with any offense.

The applicant demonstrated an acknowledgment of his past behavior and has taken steps to prevent its recurrence. The judge concluded that the applicant's past conduct was not recent and did not cast doubt on his reliability, leading to the decision to grant his security clearance.

Why the Applicant Prevailed

The applicant has not repeated inappropriate internet use since 2006 and has been employed without incident since 2007.
The allegations regarding solicitation of a minor were not substantiated by evidence, and the applicant was never charged with any offense.
The applicant demonstrated acknowledgment of past behavior and has taken steps to ensure it does not recur.

Conditions Referenced

Disqualifying

PC DC 16(c)raisedCredible Adverse Information in Several Adjudicative Issue Areas
PC DC 16(d)raisedCredible Adverse Information Not Explicitly Covered Under Any Other Guideline
M DC 40(e)raisedUnauthorized Use of a Government or Other Information Technology System
SD DC 13(d)raisedSexual Behavior of a Public Nature And/or That Reflects Lack of Discretion or Judgment

Mitigating

PC MC 17(c)appliedThe Offense Is so Minor, or so Much Time Has Passed, or the Behavior Is so Infrequent
PC MC 17(d)appliedThe Individual Has Acknowledged the Behavior and Obtained Counseling
M MC 41(a)appliedSo Much Time Has Elapsed Since the Behavior Happened
SD MC 14(b)appliedThe Sexual Behavior Happened so Long Ago, so Infrequently, or Under Such Unusual Circumstances

Key Rule Quoted

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

Procedural Posture

SOR issuedApr 27, 2009Estimated date based on forwarding memorandum.
Answer filedMay 26, 2009
Hearing heldAug 26, 2009
Decision dateOct 15, 2009

Cite For

Mitigation of Personal Conduct Issues Due to Time Elapsed Since Incidents
Insufficient Evidence Required for Adverse Determinations Regarding Solicitation Allegations
Consideration of 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.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
3.a	Applicant accessed adult and dating websites on his work computer.	For Applicant	Online Sexual Misconduct	Admitted	(d) sexual behavior of a public nature or that reflects lack of discretion or judgment	(b) the behavior happened so long ago, so infrequently, or under such unusual circumstances that it is unlikely to recur and does not cast doubt on curren…	Claimed Other

Allegation

Finding

Type

Response

Disqualifying (¶13)

Mitigating applied (¶14)

Mitigation

3.a

Applicant accessed adult and dating websites on his work computer.

For Applicant

Online Sexual Misconduct

Admitted

(d) sexual behavior of a public nature or that reflects lack of discretion or judgment

(b) the behavior happened so long ago, so infrequently, or under such unusual circumstances that it is unlikely to recur and does not cast doubt on curren…

Claimed

Other

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant used his work computer for personal use and accessed dating and adult web-sites during duty hours.	For Applicant	Rules Violation at Workplace	—	Admitted	—	(c) offense is minor, long ago, infrequent, or unique circumstances	—
1.b	Applicant received a warning letter for inappropriate internet use, which included accessing sites related to dating and pornography.	For Applicant	Rules Violation at Workplace	—	Denied	—	(c) offense is minor, long ago, infrequent, or unique circumstances	—
1.c	Applicant solicited a minor over the internet using his home computer.	For Applicant	Questionable Judgment General	—	Denied	—	—	—
1.d–1.e	2 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant		—		—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Applicant used his work computer for personal use and accessed dating and adult web-sites during duty hours.

For Applicant

Rules Violation at Workplace

—

Admitted

—

(c) offense is minor, long ago, infrequent, or unique circumstances

—

1.b

Applicant received a warning letter for inappropriate internet use, which included accessing sites related to dating and pornography.

For Applicant

Rules Violation at Workplace

—

Denied

—

(c) offense is minor, long ago, infrequent, or unique circumstances

—

1.c

Applicant solicited a minor over the internet using his home computer.

For Applicant

Questionable Judgment General

—

Denied

—

1.d–1.e

2 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)

For Applicant

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶40)	Mitigating applied (¶41)	Mitigation
2.a	Applicant admits that he received a warning letter but denies the inappropriate internet usage at work included accessing sites related to dating and pornography as alleged in SOR ¶ 2.a.	For Applicant	Pornography or Inappropriate Content on 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 …	—

Allegation

Finding

Type

Response

Disqualifying (¶40)

Mitigating applied (¶41)

Mitigation

2.a

Applicant admits that he received a warning letter but denies the inappropriate internet usage at work included accessing sites related to dating and pornography as alleged in SOR ¶ 2.a.

For Applicant

Pornography or Inappropriate Content on 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 …

—

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Case Profile

Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

ANALYSIS

WHOLE PERSON CONCEPT

FORMAL FINDINGS

CONCLUSION