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ISCR Case 01-07626.h1 — CASE

ISCR Case 01-07626.h1denied

Case Headnote

ISCR Case No. 01-07626.h1

deniedJul 25, 2003· Hon. Richard A. Cefola· hearing

Summary

A 57-year-old defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology). The denial stemmed from a history of security clearance revocation and falsification of information on his Personnel Security Questionnaire (PSQ).

Specifically, the Applicant denied on his October 1995 PSQ that his clearance had ever been "denied, suspended or revoked," despite acknowledging a revocation in May 1988 through multiple correspondences in 1988 and 1989. Additionally, in June 1999, he admitted to taking home proprietary information from his employer over several years, though he claimed this was sanctioned.

Furthermore, the Applicant admitted to copying computer software without authorization from 1990 to 1999 and continues to use this unauthorized software. The judge concluded that the Applicant's lack of candor and ongoing unauthorized software use undermined his trustworthiness, leading to the denial of his security clearance.

Why the Applicant Was Denied

The Applicant knowingly falsified information on his Personnel Security Questionnaire regarding his prior security clearance revocation.
The Applicant admitted to improperly copying and continuing to use unauthorized software, raising concerns about his trustworthiness.

Conditions Referenced

Disqualifying

E2.A2.2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire.
E2.A5.1raisedA Pattern of Dishonesty or Rule Violations.
M2.A3.1raisedRemoval (or Use) of Software Without Authorization.

Key Rule Quoted

“The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places.”

Procedural Posture

SOR issuedFeb 24, 2003
Answer filedMar 25, 2003
Hearing held—Determined on a written record in lieu of a hearing.
Decision dateJul 25, 2003

Cite For

Falsification of Information on Security Clearance Applications Under Guideline E
Misuse of Information Technology Under Guideline M
Trustworthiness Concerns Arising From Past Conduct and Lack of Candor

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 multiple allegations of personal conduct, including falsification of a security questionnaire and misuse of information technology. The applicant's lack of candor and continued unauthorized use of software raised significant trustworthiness concerns, leading to the denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In October of 1995, the Applicant denied that his clearance had ever been "denied, suspended or revoked," when he executed his Personnel Security Questionnaire (PSQ).	Against Applicant	Falsification Security FormFOUND DELIBERATE	—	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—
1.b	In June of 1999, the Applicant did admit to "have taken home some . . . [of his employer's] proprietary information over the past several years."	For Applicant	Misuse of Employer Time or Resources	—	Admitted	—	—	—
1.c	The Applicant admittedly copied computer software without the permission or authorization from the software manufacturer from 1990~1999, and he continues to use such software.	Against Applicant	Misuse of Employer Time or Resources	—	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
1.d–2.a	2 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against 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: denied

The judge found multiple allegations against the applicant regarding misuse of information technology, specifically unauthorized copying of software. The applicant's lack of candor and continued use of unlicensed software raised significant trustworthiness concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶40)	Mitigating applied (¶41)	Mitigation
1.a	The Applicant's security clearance was revoked in May of 1988, a fact that he acknowledged by way of correspondence in July of 1988, in September of 1988, and in April of 1989. In October of 1995, however, the Applicant denied that his clearance had ever been "denied, suspended or revoked," when he executed his Personnel Security Questionnaire (PSQ).	Against Applicant	Unauthorized Modification or Destruction	Denied	(a) unauthorized entry into any information technology system (b) unauthorized modification, destruction, or manipulation of, or denial of access to, an IT system or any data in such a system	—	—
1.b	In June of 1999, the Applicant did admit to "have taken home some . . . [of his employer's] proprietary information over the past several years," but he avers that such conduct was sanctioned by his employer.	For Applicant	Unspecified IT Misuse	Admitted	—	—	—
1.c	The Applicant admittedly copied computer software without the permission or authorization from the software manufacturer from 1990~1999, and he continues to use such software.	Against Applicant	Unauthorized Modification or Destruction	Admitted	(c) use of any IT system to gain unauthorized access to another system or to a compartmented area within the same system	—	—
2.a	The Applicant admittedly copied computer software without the permission or authorization from the software manufacturer from 1990~1999, and he continues to use such software.	Against Applicant	Unauthorized Modification or Destruction	Admitted	(c) use of any IT system to gain unauthorized access to another system or to a compartmented area within the same system	—	—

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

DATE: July 25, 2003 In Re: ----------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 01-07626 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

SYNOPSIS The Applicant's security clearance was revoked in May of 1988, a fact that he acknowledged by way of correspondence in July of 1988, in September of 1988, and in April of 1989. In October of 1995, however, the Applicant denied that his clearance had ever been "denied, suspended or revoked," when he executed his Personnel Security Questionnaire (PSQ). This lack of candor, coupled with the fact that he admittedly improperly copied computer software from 1990–1999 and still uses that software, brings into question the Applicant's trustworthiness. No mitigation has been shown. Clearance is denied.

STATEMENT OF CASE

On February 24, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked. Applicant filed an Answer to the SOR on March 25, 2003. Applicant elected to have this case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant aterial (FORM) on May 15, 2003. Applicant was instructed to submit objections or information in rebuttal, extenuation or mitigation within 30 days of receipt of the FORM. Applicant received his copy on May 29, 2003, and submitted nothing in reply. The case was received by the undersigned for resolution on July 10, 2003. The issues raised here are whether the Applicant's personal conduct and related misuse of information technology militate against the granting of a security clearance. [The Applicant denies all of the allegations, except for allegation 1.c., as it relates to the improper copying of computer software, under personal conduct.]

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, and the File of Relevant Material. The Applicant is 57 years of age, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact. Guideline E - Personal Conduct & Guideline M - Misuse of Information Technology 1.a. and 1.d. In May of 1988, the Applicant's security clearance was revoked (Government Exhibit (GX 7). The Applicant acknowledged that his clearance was revoked or that his access to information was denied in correspondence dated July 6, 1988 (GX 7 at page 1), in correspondence dated September 20, 1988 (GX 7 at page 6), again in correspondence dated April 26, 1989 (GX 7 at page 5), and most recently in a sworn statement dated June 10, 1999 (GX 5 at page 12). In October of 1995, however, when executing his PSQ, he answered "No" to the question "Have you ever had a security clearance denied, suspended or revoked" (GX 4 at page 4). I find this to be a knowing and wilful falsification. Furthermore, the Applicant did not come forward and explain his falsification until more than three and a half years later, when he executed the sworn statement (GX 5). 1.b. In June of 1999, the Applicant did admit to "have taken home some . . . [of his employer's] proprietary information over the past several years," but he avers that such conduct was sanctioned by his employer (GX 5 at page 14). The Government has failed to demonstrate otherwise; and as such, this allegation is found for the Applicant. 1.c. and 2.a. The Applicant admittedly copied computer software without the permission or authorization from the software manufacturer from 1990–1999, and he continues to use such software (GX 3 at page 5, and GX 5 at pages 17–18). Mitigation The Applicant offers little in the way of mitigation, and only tries to explain away his clear falsification.

POLICIES

Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are: Personal Conduct Conditions that could raise a security concern: 2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . ; 5. A pattern of dishonesty or rule violations . . . ; Conditions that could mitigate security concerns: None Misuse of Information Technology Systems Condition that could raise a security concern: 3. Removal (or use) . . . of software . . . without authorization; Conditions that could mitigate security concerns: None As set forth in the Directive, each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature, extent, and seriousness of the conduct, and surrounding circumstances. b. Frequency and recency of the conduct. c. Age and maturity of the applicant. d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved. e. Absence or presence of rehabilitation. f. Probability that circumstances or conduct will continue or recur in the future." The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence that are speculative or conjectural in nature. The Government must make out a case under Guidelines E (personal conduct), and M (misuse of information technology systems); which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required. Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an applicant has demonstrated a lack of respect for rules, there then exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

CONCLUSION

The Applicant was clearly less than candid with the Government when he executed his PSQ in October of 1995. His access to classified information had been denied and his clearance had been revoked six years earlier in May of 1988. It is clear from the intervening correspondence that he was aware of the prior demise of his security clearance, but in his answer he tries to explain away his clear falsification, averring that his access was not really denied nor his clearance really revoked. His explanation is not supported by any other evidence, and, in the context of the entire record, I find it to be not credible. This poor exercise of semantics, coupled with the fact he admittedly has copied and still uses computer software he had no authority to copy, further brings into question the Applicant's trustworthiness. His wilful falsification and continued misuse of information technology are clearly of security clearance significance; and as such, Guidelines E and M are therefore found against the Applicant.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: AGAINST THE APPLICANT a. Against the Applicant. b. For the Applicant. c. Against the Applicant. d. Against the Applicant. Paragraph 2: AGAINST THE APPLICANT a. Against the Applicant. Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

01-07626.h1 FOR GOVERNMENT Jennifer I. Campbell, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-07626.h1.html[7/2/2021 2:17:45 PM] 01-07626.h1