ISCR Case 14-00053.h1

Case Headnote

ISCR Case No. 14-00053.h1

grantedJan 21, 2015· Hon. Robert Robinson Gales· hearing

Summary

A 64-year-old defense contractor employee sought to retain his top secret security clearance, facing allegations under Guideline E (Personal Conduct) and Guideline K (Handling Protected Information). The Statement of Reasons detailed four incidents between 2003 and 2012. These included failing to activate a room alarm in May 2012, replacing a CD player and mislabeling unclassified CDs in February 2011, failing to lock a security container and an inner room in October 2010, and failing to engage all supplemental security measures in an outer room in February 2003.

In each instance, investigations by the Facility Security Officer (FSO) concluded there was no compromise or attempted compromise of classified material due to functional supplemental security measures and no signs of attempted entry or missing items. The FSO classified the 2011 incident as "minor" and issued a verbal warning, while the 2012 and 2010 incidents were deemed "security infractions." The 2003 incident, initially admitted as a "security violation" by the applicant, was also determined to be a "security infraction" under the relevant manual.

The judge ultimately granted the security clearance. This decision was based on the finding that the incidents were security infractions, not violations, and that no classified material was compromised. The applicant admitted to the incidents, demonstrated a positive attitude toward security responsibilities, and took proactive steps to enhance his security practices, expressing contrition for past lapses.

Why the Applicant Prevailed

Applicant admitted to the security incidents but demonstrated that they were classified as security infractions, not violations.
The facility security officer concluded that there was no compromise of classified material in any of the incidents.
Applicant took proactive steps to enhance his security practices and expressed contrition for past lapses.

Conditions Referenced

Disqualifying

AG ¶ 34(g)raisedFailure to Comply with Rules for the Protection of Classified or Other Sensitive Information
AG ¶ 34(h)raisedNegligence or Lax Security Habits That Persist Despite Counseling by Management

Mitigating

AG ¶ 35(a)appliedTime Elapsed Since the Behavior or Infrequency of Incidents
AG ¶ 35(b)appliedResponse to Counseling or Remedial Security Training

Key Rule Quoted

“Eligibility for a security clearance and access to classified information is granted 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.

Procedural Posture

SOR issuedMar 21, 2014
Answer filedApr 15, 2014Applicant elected to have the case decided on the written record.
Hearing held—No hearing; case decided on the written record.
Decision dateJan 21, 2015

Cite For

Mitigation of Security Concerns Under Guideline K Due to Infrequent Incidents
Consideration of Applicant's Proactive Measures to Enhance Security Practices
Evaluation of Personal Conduct in Light of the Whole-person Concept.

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

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

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

—

Unknown

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
1.a	In May 2012, after working within the same inner room, Applicant engaged the locking mechanism of the room, but failed to activate the alarm of the room. While the outer room was no longer a closed area, he did engage all of the supplemental protection security measures of the outer room. An investigation conducted by the FSO concluded that there was no compromise or attempted compromise of classified material because the supplemental protection security measures of the outer room were functional and there were no signs of attempted entry or missing items. Applicant received a written notification for the incident and advised to review and follow all the procedural steps on the closed area instruction sheet. The incident should have been classified as a “security infraction.”	For Applicant	Failure to Safeguard or Secure	Admitted	(g) any failure to comply with rules for the protection of classified or sensitive information (h) negligence or lax security practices that persist despite counseling by management	(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…	Claimed Other
1.b	In February 2011, while working in the same outer room, Applicant replaced a 5-disc compact disc (CD) player used to generate “white noise” with a single disc player. He removed the five unclassified CDs contained in the CD player and placed the remaining four CDs on the shelf adjacent to the disc player. Each of the CDs was already in the closed area and labeled in compliance with the instructions previously furnished. In that area, a green mark indicated “unclassified.” The entire word was not used because it was office policy and the closed area network plan not to do so. The policy and plan eventually evolved into a lab-wide plan which apparently mandated the use of the entire word. The green markings on the CDs should have been modified by someone, not identified, but they were not. During a normal security patrol, the guard noticed the CDs and confiscated them. An investigation conducted by the FSO concluded that there was no compromise or attempted compromise of classified material because the supplemental protection security measures of the outer room were functional and there were no signs of attempted entry or missing items. The incident was classified as a “minor incident” by the FSO, and Applicant was issued a verbal warning.	For Applicant	Failure to Safeguard or Secure	Admitted	(g) any failure to comply with rules for the protection of classified or sensitive information (h) negligence or lax security practices that persist despite counseling by management	(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…	Claimed Other
1.c	In October 2010, after working within the same closed area with a cleared colleague, Applicant failed to lock the security container assigned to him within the inner room and failed to engage the locking mechanism of the inner room. He did, however, activate the alarm of the inner room, as well as engage all of the supplemental protection security measures of the outer room. An investigation conducted by the FSO concluded that there was no compromise or attempted compromise of classified material because the supplemental protection security measures of the outer room were functional and there were no signs of attempted entry or missing items. The incident should have been classified as a “security infraction.”	For Applicant	Failure to Safeguard or Secure	Admitted	(g) any failure to comply with rules for the protection of classified or sensitive information (h) negligence or lax security practices that persist despite counseling by management	(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…	Claimed Other
1.d	In February 2003, after working within a closed area containing an outer room and an inner room (containing closed storage of classified material), Applicant fully engaged the security measures of the inner room, but failed to engage all of the supplemental protection security measures of the outer room. The alarm was activated, but he failed to engage the locking mechanism. An investigation conducted by the facility security officer (FSO) concluded that there was no compromise or attempted compromise of classified material because one of the supplemental protection security measures was functional and there were no signs of attempted entry or missing items. While Applicant admitted that the incident constituted a “security violation,” in fact, under DOD 5220.22-M-Sup, National Industrial Security Program Operating Manual Supplement (February 1995), it should have been classified as a “security infraction.”	For Applicant	Failure to Safeguard or Secure	Admitted	(g) any failure to comply with rules for the protection of classified or sensitive information (h) negligence or lax security practices that persist despite counseling by management	(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…	Claimed Other

Allegation

Finding

Type

Response

Disqualifying (¶34)

Mitigating applied (¶35)

Mitigation

1.a

In May 2012, after working within the same inner room, Applicant engaged the locking mechanism of the room, but failed to activate the alarm of the room. While the outer room was no longer a closed area, he did engage all of the supplemental protection security measures of the outer room. An investigation conducted by the FSO concluded that there was no compromise or attempted compromise of classified material because the supplemental protection security measures of the outer room were functional and there were no signs of attempted entry or missing items. Applicant received a written notification for the incident and advised to review and follow all the procedural steps on the closed area instruction sheet. The incident should have been classified as a “security infraction.”

For Applicant

Failure to Safeguard or Secure

Admitted

(g) any failure to comply with rules for the protection of classified or sensitive information

(h) negligence or lax security practices that persist despite counseling by management

(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…

Claimed

Other

1.b

In February 2011, while working in the same outer room, Applicant replaced a 5-disc compact disc (CD) player used to generate “white noise” with a single disc player. He removed the five unclassified CDs contained in the CD player and placed the remaining four CDs on the shelf adjacent to the disc player. Each of the CDs was already in the closed area and labeled in compliance with the instructions previously furnished. In that area, a green mark indicated “unclassified.” The entire word was not used because it was office policy and the closed area network plan not to do so. The policy and plan eventually evolved into a lab-wide plan which apparently mandated the use of the entire word. The green markings on the CDs should have been modified by someone, not identified, but they were not. During a normal security patrol, the guard noticed the CDs and confiscated them. An investigation conducted by the FSO concluded that there was no compromise or attempted compromise of classified material because the supplemental protection security measures of the outer room were functional and there were no signs of attempted entry or missing items. The incident was classified as a “minor incident” by the FSO, and Applicant was issued a verbal warning.

For Applicant

Failure to Safeguard or Secure

Admitted

(g) any failure to comply with rules for the protection of classified or sensitive information

(h) negligence or lax security practices that persist despite counseling by management

(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…

Claimed

Other

1.c

In October 2010, after working within the same closed area with a cleared colleague, Applicant failed to lock the security container assigned to him within the inner room and failed to engage the locking mechanism of the inner room. He did, however, activate the alarm of the inner room, as well as engage all of the supplemental protection security measures of the outer room. An investigation conducted by the FSO concluded that there was no compromise or attempted compromise of classified material because the supplemental protection security measures of the outer room were functional and there were no signs of attempted entry or missing items. The incident should have been classified as a “security infraction.”

For Applicant

Failure to Safeguard or Secure

Admitted

(g) any failure to comply with rules for the protection of classified or sensitive information

(h) negligence or lax security practices that persist despite counseling by management

(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…

Claimed

Other

1.d

In February 2003, after working within a closed area containing an outer room and an inner room (containing closed storage of classified material), Applicant fully engaged the security measures of the inner room, but failed to engage all of the supplemental protection security measures of the outer room. The alarm was activated, but he failed to engage the locking mechanism. An investigation conducted by the facility security officer (FSO) concluded that there was no compromise or attempted compromise of classified material because one of the supplemental protection security measures was functional and there were no signs of attempted entry or missing items. While Applicant admitted that the incident constituted a “security violation,” in fact, under DOD 5220.22-M-Sup, National Industrial Security Program Operating Manual Supplement (February 1995), it should have been classified as a “security infraction.”

For Applicant

Failure to Safeguard or Secure

Admitted

(g) any failure to comply with rules for the protection of classified or sensitive information

(h) negligence or lax security practices that persist despite counseling by management

(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt…

Claimed

Other

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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

FOOTNOTES