ISCR Case 03-00987.h1

Case Headnote

ISCR Case No. 03-00987.h1

grantedSep 17, 2004· Hon. Henry Lazzaro· hearing

Summary

This case concerns a 41-year-old engineer with a secret security clearance, whose eligibility was reviewed under Guidelines D (Sexual Behavior), E (Personal Conduct), and M (Use of Information Technology). The Statement of Reasons alleged that the applicant accessed numerous pornographic websites on his government contractor employer's computer during a five-day period in January 2001. Additionally, he failed to complete his time card daily as required by government regulations during the same timeframe.

Despite these allegations, the judge determined that the security concerns were mitigated. Key factors included the absence of a specific employer policy prohibiting access to such websites outside of work hours at the time of the incidents. The misconduct was also characterized as isolated, occurring over a short duration.

Furthermore, the applicant demonstrated good character and trustworthiness, supported by testimony from senior management. Based on these mitigating factors, the applicant's security clearance was GRANTED.

Why the Applicant Prevailed

The applicant's employer did not have a policy prohibiting access to pornographic websites outside of work hours.
The applicant's misconduct was isolated and occurred over a short period of time.
The applicant demonstrated good character and trustworthiness through testimony from senior management.

Conditions Referenced

Disqualifying

DC 1raisedReliable, Unfavorable Information Provided by Associates, Employers, Coworkers, Neighbors, and Other Acquaintances
DC 4raisedPersonal Conduct or Concealment of Information That Increases an Individual's Vulnerability to Coercion, Exploitation or Duress
DC 5raisedA Pattern of Dishonesty or Rule Violations, Including Violation of Any Written or Recorded Agreement Made Between the Individual and the Agency

Mitigating

MC 1appliedThe Misuse Was Not Recent or Significant
MC 2appliedThe Behavior Was Not Recent and There Is No Evidence of Subsequent Conduct of a Similar Nature
MC 4appliedThe Misuse Was an Isolated Event
MC 5appliedThe Individual Has Taken Positive Steps to Significantly Reduce or Eliminate Vulnerability to Coercion, Exploitation, or Duress

Key Rule Quoted

“The sole purpose of a security clearance decision is to decide if it is clearly consistent with the national interest to grant or continue a security clearance for an applicant.”
— Executive Order 10865 and DoD Directive 5220.6

Procedural Posture

SOR issuedDec 8, 2003
Answer filedJan 6, 2004
Hearing heldJun 15, 2004
Decision dateSep 17, 2004

Cite For

Mitigation of Security Concerns Under Guideline M Due to Lack of Employer Policy
Isolated Incidents of Misconduct Not Indicative of a Pattern
Character References From Senior Management as Mitigating Evidence

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
1.a	Applicant accessed numerous pornographic web sites on a computer owned by his government contractor employer during a five-day period in January 2001.	For Applicant	Online Sexual Misconduct	Admitted	—	(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… (d) the sexual behavior is strictly private, consensual, and discreet	Claimed Other

Allegation

Finding

Type

Response

Disqualifying (¶13)

Mitigating applied (¶14)

Mitigation

1.a

Applicant accessed numerous pornographic web sites on a computer owned by his government contractor employer during a five-day period in January 2001.

For Applicant

Online Sexual Misconduct

Admitted

—

(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…

(d) the sexual behavior is strictly private, consensual, and discreet

Claimed

Other

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant accessed numerous pornographic web sites on a computer owned by his government contractor employer during a five-day period in January 2001.	For Applicant	Questionable Judgment General	—	Denied	(a) deliberate omission, concealment, or falsification on a security form (d) pattern of dishonesty, rule violations, or other untrustworthy behavior (e) personal conduct or concealment creating vulnerability to exploitation	(b) omission/refusal followed advice of counsel; later cooperated fully (c) offense is minor, long ago, infrequent, or unique circumstances	Claimed Other
2.b	He also failed to fill out his time card on a daily basis as required by government regulations during that same time period.	For Applicant	Rules Violation at Workplace	—	Denied	(a) deliberate omission, concealment, or falsification on a security form (d) pattern of dishonesty, rule violations, or other untrustworthy behavior (e) personal conduct or concealment creating vulnerability to exploitation	(b) omission/refusal followed advice of counsel; later cooperated fully (c) offense is minor, long ago, infrequent, or unique circumstances	Claimed Other

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant accessed numerous pornographic web sites on a computer owned by his government contractor employer during a five-day period in January 2001.

For Applicant

Questionable Judgment General

—

Denied

(a) deliberate omission, concealment, or falsification on a security form

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

(e) personal conduct or concealment creating vulnerability to exploitation

(b) omission/refusal followed advice of counsel; later cooperated fully

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

Claimed

Other

2.b

He also failed to fill out his time card on a daily basis as required by government regulations during that same time period.

For Applicant

Rules Violation at Workplace

—

Denied

(a) deliberate omission, concealment, or falsification on a security form

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

(e) personal conduct or concealment creating vulnerability to exploitation

(b) omission/refusal followed advice of counsel; later cooperated fully

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

Claimed

Other

¶	Allegation	Finding	Type	Response	Disqualifying (¶40)	Mitigating applied (¶41)	Mitigation
1.a	Applicant accessed numerous pornographic web sites on a computer owned by his government contractor employer during a five-day period in January 2001.	For Applicant	Pornography or Inappropriate Content on System	Admitted	—	(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 … (d) the misuse was due to improper or inadequate training or unclear instructions	Claimed Other

Allegation

Finding

Type

Response

Disqualifying (¶40)

Mitigating applied (¶41)

Mitigation

1.a

Applicant accessed numerous pornographic web sites on a computer owned by his government contractor employer during a five-day period in January 2001.

For Applicant

Pornography or Inappropriate Content on System

Admitted

—

(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 …

(d) the misuse was due to improper or inadequate training or unclear instructions

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

SYNOPSIS

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES