ISCR Case 01-16711.h1

Case Headnote

ISCR Case No. 01-16711.h1

deniedApr 13, 2004· Hon. Wilford H. Ross· hearing

Summary

A 55-year-old Senior Test Engineer was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline J (Criminal Conduct), and Guideline M (Use of Information Technology). The denial stemmed from the applicant's misuse of government technology, a spousal abuse incident, and the falsification of his security clearance application.

Specifically, the applicant was found to have accessed pornography on government computers in 1997 and 1999, leading to a letter of reprimand and subsequent investigation. In 1999, he was arrested and charged with spousal abuse after a physical altercation with his wife, to which he pleaded guilty, resulting in a jail sentence, fine, and probation. Furthermore, the applicant intentionally falsified his Security Clearance Application on November 26, 2002, by misrepresenting the circumstances of his departure from a previous job.

The judge determined that the applicant's misuse of technology was not sufficiently mitigated and that he intentionally falsified material facts in his application. The applicant's explanations for his conduct were deemed unsupported by credible evidence, leading to the denial of his security clearance.

Why the Applicant Was Denied

The Applicant intentionally misused government technology to access pornography, which was not mitigated.
The Applicant falsified material aspects of his Security Clearance Application regarding his resignation from government service.
The Applicant's explanations for his conduct were unsupported by credible evidence.

Conditions Referenced

Disqualifying

J1appliedCriminal Conduct
M3appliedMisuse of Information Technology
E2appliedPersonal Conduct
E4appliedPersonal Conduct
E5appliedPersonal Conduct

Mitigating

J1appliedCriminal ConductThe criminal conduct was isolated and not recent, and the Applicant successfully attended a domestic violence program.
M3rejectedMisuse of Information Technology
E2rejectedPersonal Conduct
E4rejectedPersonal Conduct
E5rejectedPersonal Conduct

Key Rule Quoted

“The Government relies heavily upon the integrity and honesty of clearance holders, and it is a negative factor for security clearance purposes where an Applicant has deliberately provided false information about material aspects of his or her personal background.”

Procedural Posture

SOR issuedMar 6, 2003
Answer filedApr 2, 2003
Hearing heldSeptember 5, 2003 and February 13, 2004Two hearings were conducted.
Decision dateApr 13, 2004

Cite For

Denial Based on Misuse of Government Technology Under Guideline M
Falsification of Information on a Security Clearance Application Under Guideline E
Consideration of Spousal Abuse as a Disqualifying Factor Under Guideline J

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
3.a	The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Employment History	Denied	(b) deliberately providing false information to an investigator or official (e) personal conduct or concealment creating vulnerability to exploitation	—	—
3.b	The Applicant misused Government technology equipment in 1997 and 1999 by using it to access pornography.	Against Applicant	Rules Violation at WorkplaceFOUND DELIBERATE	—	Denied	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior (e) personal conduct or concealment creating vulnerability to exploitation	—	—
3.c–3.d	2 sub-charges — specific text not stated in this decision (1 against, 1 for the applicant). (low confidence)	Mixed		—		—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

3.a

The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Employment History

Denied

(b) deliberately providing false information to an investigator or official

(e) personal conduct or concealment creating vulnerability to exploitation

—

3.b

The Applicant misused Government technology equipment in 1997 and 1999 by using it to access pornography.

Against Applicant

Rules Violation at WorkplaceFOUND DELIBERATE

—

Denied

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

(e) personal conduct or concealment creating vulnerability to exploitation

—

3.c–3.d

2 sub-charges — specific text not stated in this decision (1 against, 1 for the applicant). (low confidence)

Mixed

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1	The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has engaged in criminal acts.	For Applicant	Domestic Violence	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	Credited Rehabilitation Evidence
1.a	In May 1999, the Applicant became involved in a physical altercation with his wife. The altercation ended with the Applicant choking his wife. He was subsequently arrested and charged with Spousal Abuse. He plead guilty and was sentenced to one day in jail, fined, and placed on three years probation.	For Applicant	Domestic Violence	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(c) no reliable evidence the individual committed the offense	Credited Rehabilitation Evidence
2	The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has violated rules, procedures, guidelines or regulations pertaining to the use of Government information technology systems.	Against Applicant	Unspecified Criminal Conduct	—	Denied	(c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
2.a	In 1997, the Applicant received a letter of reprimand for misuse of information technology. Three pornographic pictures depicting sexual activity, one involving minor children, were found on a Government computer that he used.	Against Applicant	Unspecified Criminal Conduct	—	Denied	(c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
2.b	The Government has not met its burden with regards to allegations 2.b. and 3.c. Those subparagraphs are found for the Applicant.	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—
2.c	In November 1999, the Applicant was the subject of an investigation into the use of two Government computers to access pornographic sites on the Internet.	Against Applicant	Unspecified Criminal Conduct	—	Denied	(c) currently on parole or probation (d) violation of parole/probation or failure to complete a court program	—	—
3	The Government alleges in this paragraph that the Applicant is ineligible for clearance because he intentionally falsified material aspects of his personal background during the clearance screening process.	Against Applicant	Unspecified Criminal Conduct	—	Denied	(e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
3.a	On November 26, 2002, the Applicant completed an official DoD questionnaire in which he stated that in the past seven years he had not either left a job by mutual agreement following allegations of misconduct, or left a job for other reasons under unfavorable circumstances.	Against Applicant	Unspecified Criminal Conduct	—	Denied	(e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
3.b	The Applicant's conduct involving pornography on Government computers increased his vulnerability to coercion, exploitation or duress.	Against Applicant	Unspecified Criminal Conduct	—	Denied	(e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—
3.c	The Government did not prove that the email warning the Applicant received in August 1999 related to pornography.	For Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—
3.d	The Applicant intentionally falsified question 20 on his Security Clearance Application.	Against Applicant	Unspecified Criminal Conduct	—	Denied	(e) discharge or dismissal from the Armed Forces under less than honorable conditions	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has engaged in criminal acts.

For Applicant

Domestic Violence

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

Credited

Rehabilitation Evidence

1.a

In May 1999, the Applicant became involved in a physical altercation with his wife. The altercation ended with the Applicant choking his wife. He was subsequently arrested and charged with Spousal Abuse. He plead guilty and was sentenced to one day in jail, fined, and placed on three years probation.

For Applicant

Domestic Violence

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) no reliable evidence the individual committed the offense

Credited

Rehabilitation Evidence

The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has violated rules, procedures, guidelines or regulations pertaining to the use of Government information technology systems.

Against Applicant

Unspecified Criminal Conduct

—

Denied

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

2.a

In 1997, the Applicant received a letter of reprimand for misuse of information technology. Three pornographic pictures depicting sexual activity, one involving minor children, were found on a Government computer that he used.

Against Applicant

Unspecified Criminal Conduct

—

Denied

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

2.b

The Government has not met its burden with regards to allegations 2.b. and 3.c. Those subparagraphs are found for the Applicant.

For Applicant

Unspecified Criminal Conduct

—

Unknown

—

2.c

In November 1999, the Applicant was the subject of an investigation into the use of two Government computers to access pornographic sites on the Internet.

Against Applicant

Unspecified Criminal Conduct

—

Denied

(c) currently on parole or probation

(d) violation of parole/probation or failure to complete a court program

—

The Government alleges in this paragraph that the Applicant is ineligible for clearance because he intentionally falsified material aspects of his personal background during the clearance screening process.

Against Applicant

Unspecified Criminal Conduct

—

Denied

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

3.a

On November 26, 2002, the Applicant completed an official DoD questionnaire in which he stated that in the past seven years he had not either left a job by mutual agreement following allegations of misconduct, or left a job for other reasons under unfavorable circumstances.

Against Applicant

Unspecified Criminal Conduct

—

Denied

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

3.b

The Applicant's conduct involving pornography on Government computers increased his vulnerability to coercion, exploitation or duress.

Against Applicant

Unspecified Criminal Conduct

—

Denied

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

3.c

The Government did not prove that the email warning the Applicant received in August 1999 related to pornography.

For Applicant

Unspecified Criminal Conduct

—

Unknown

—

3.d

The Applicant intentionally falsified question 20 on his Security Clearance Application.

Against Applicant

Unspecified Criminal Conduct

—

Denied

(e) discharge or dismissal from the Armed Forces under less than honorable conditions

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶40)	Mitigating applied (¶41)	Mitigation
2.a	The Applicant has violated rules, procedures, guidelines or regulations pertaining to the use of Government information technology systems.	Against Applicant	Pornography or Inappropriate Content on System	Denied	(c) use of any IT system to gain unauthorized access to another system or to a compartmented area within the same system (d) downloading/storing/transmitting classified/sensitive/proprietary/protected information on or to any unauthorized IT system	—	—
2.b	The Applicant's computer had been used "for inappropriate purposes."	For Applicant	Unspecified IT Misuse	Denied	—	—	—
2.c	The Applicant was the subject of an investigation into the use of two Government computers to access pornographic sites on the Internet.	Against Applicant	Pornography or Inappropriate Content on System	Denied	(c) use of any IT system to gain unauthorized access to another system or to a compartmented area within the same system (d) downloading/storing/transmitting classified/sensitive/proprietary/protected information on or to any unauthorized IT system	—	—
3.a	The Applicant's conduct involving pornography on Government computers increased his vulnerability to coercion, exploitation or duress.	Against Applicant	Pornography or Inappropriate Content on System	Denied	(d) downloading/storing/transmitting classified/sensitive/proprietary/protected information on or to any unauthorized IT system	—	—
3.b	The Applicant has a pattern of dishonesty or rule violations, including the violation of any written or recorded agreement made between the individual and the agency.	Against Applicant	Negligent IT Security Practice	Denied	(e) unauthorized use of any information technology system	—	—
3.c	The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.	For Applicant	Unspecified IT Misuse	Denied	—	—	—
3.d	The Applicant's repeated use of Government computers to access pornography brings a pattern of dishonesty or rule violations into effect.	Against Applicant	Pornography or Inappropriate Content on System	Denied	(e) unauthorized use of any information technology system	—	—

Allegation

Finding

Type

Response

Disqualifying (¶40)

Mitigating applied (¶41)

Mitigation

2.a

The Applicant has violated rules, procedures, guidelines or regulations pertaining to the use of Government information technology systems.

Against Applicant

Pornography or Inappropriate Content on System

Denied

(c) use of any IT system to gain unauthorized access to another system or to a compartmented area within the same system

(d) downloading/storing/transmitting classified/sensitive/proprietary/protected information on or to any unauthorized IT system

—

2.b

The Applicant's computer had been used "for inappropriate purposes."

For Applicant

Unspecified IT Misuse

Denied

—

2.c

The Applicant was the subject of an investigation into the use of two Government computers to access pornographic sites on the Internet.

Against Applicant

Pornography or Inappropriate Content on System

Denied

(c) use of any IT system to gain unauthorized access to another system or to a compartmented area within the same system

(d) downloading/storing/transmitting classified/sensitive/proprietary/protected information on or to any unauthorized IT system

—

3.a

The Applicant's conduct involving pornography on Government computers increased his vulnerability to coercion, exploitation or duress.

Against Applicant

Pornography or Inappropriate Content on System

Denied

(d) downloading/storing/transmitting classified/sensitive/proprietary/protected information on or to any unauthorized IT system

—

3.b

The Applicant has a pattern of dishonesty or rule violations, including the violation of any written or recorded agreement made between the individual and the agency.

Against Applicant

Negligent IT Security Practice

Denied

(e) unauthorized use of any information technology system

—

3.c

The Applicant intentionally falsified material aspects of his personal background during the clearance screening process.

For Applicant

Unspecified IT Misuse

Denied

—

3.d

The Applicant's repeated use of Government computers to access pornography brings a pattern of dishonesty or rule violations into effect.

Against Applicant

Pornography or Inappropriate Content on System

Denied

(e) unauthorized use of any information technology system

—

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Case Profile

Summary

Why the Applicant Was Denied

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

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES