ISCR Case 03-12059.h1

Case Headnote

ISCR Case No. 03-12059.h1

grantedFeb 13, 2006· Hon. Joan Caton Anthony· hearing

Summary

A 38-year-old naturalized U.S. citizen and Lead Engineer was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology). The allegations stemmed from two instances of accessing pornographic websites on a work computer in May 2000 and March 2001, the latter resulting in his termination. Additionally, concerns were raised regarding an inaccurately dated tank log in March 2002, which led to a letter of warning, and alleged falsification on his SF-86 by denying previous job terminations or departures under unfavorable circumstances.

The judge found that the applicant successfully mitigated the disqualifying conduct. Regarding the misuse of information technology, the applicant provided credible testimony that his access to the pornographic websites was unintentional, occurring while attempting to access his email. This suggested his actions were inadvertent rather than indicative of a pattern of misconduct.

Furthermore, his current employer had not reported any issues concerning his conduct or access to technology. Based on these mitigating factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant's misuse of the employer's computer system was unintentional and occurred while attempting to access his email.
The applicant provided credible testimony that his actions were inadvertent and not indicative of a pattern of misconduct.
The applicant's current employer has not raised issues regarding his conduct or access to technology.

Conditions Referenced

Disqualifying

E2.A5.1.2.1raisedReliable, Unfavorable Information About the Applicant's Alleged Unprofessional Conduct and Questionable Judgment.
E2.A5.1.2.2raisedOmission of Relevant and Material Facts About Employment History in Response to Question 22 on the SF-86.
E2.A5.1.2.4raisedAlleged Personal Conduct and Concealment or Misrepresentation of Information Increased Vulnerability to Coercion.
E2.A5.1.2.5raisedAlleged Disqualifying Personal Conduct Suggested a Pattern of Dishonesty or Rule Violations.

Mitigating

E2.A13.1.3.1appliedThe Applicant's Credible Testimony Supported a Conclusion That the Allegations Did Not Accurately Reflect the Events.
E2.A5.1.3.1appliedThe Applicant Made a Good-faith Effort to Clarify His Employment History During the DSS Interview.
E2.A5.1.3.3appliedThe Applicant's Current Employer Provided a Positive Character Reference Indicating Trustworthiness and Reliability.
E2.A5.1.3.5appliedThe Applicant Has Taken Positive Steps to Reduce Vulnerability to Coercion, Exploitation, or Duress.

Key Rule Quoted

“The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant.”
— Exec. Or. 10865 § 7.

Procedural Posture

SOR issuedOct 7, 2004
Answer filedOct 19, 2004
Hearing heldNov 14, 2005
Decision dateFeb 13, 2006

Cite For

Mitigation of Disqualifying Conduct Under Guideline M Due to Unintentional Actions
Successful Rebuttal of Allegations of Personal Conduct Under Guideline E
Importance of Credible Testimony in Mitigating Security Concerns

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	Applicant misused his employer's information technology systems as alleged in ¶¶ 1.a. and 1.b and that the misuse reflected questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty or unwillingness to comply with rules and regulations and further suggested Applicant may not properly safeguard classified information	For Applicant	Questionable Judgment General	—	Denied	—	(a) prompt, good-faith correction before being confronted (c) offense is minor, long ago, infrequent, or unique circumstances (e) positive steps to reduce vulnerability to exploitation	—
2.b	Applicant inaccurately dated a tank log prematurely in March 2002, which resulted in a letter of warning from his employer on March 25, 2002	For Applicant	Rules Violation at Workplace	—	Denied	—	(a) prompt, good-faith correction before being confronted (c) offense is minor, long ago, infrequent, or unique circumstances (e) positive steps to reduce vulnerability to exploitation	—
2.c	he falsified material facts on his SF-86 when he denied, in answer to Question 22, that he had ever been fired from a job, quit a job after being told he'd be fired, left a job by mutual agreement following allegations of misconduct, left a job by mutual agreement following allegations of unsatisfactory performance, or left a job for other reasons under unfavorable circumstances	For Applicant	Falsification Security FormNOT DELIBERATESELF-CORRECTED	Employment History	Denied	—	(a) prompt, good-faith correction before being confronted (c) offense is minor, long ago, infrequent, or unique circumstances (e) positive steps to reduce vulnerability to exploitation	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant misused his employer's information technology systems as alleged in ¶¶ 1.a. and 1.b and that the misuse reflected questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty or unwillingness to comply with rules and regulations and further suggested Applicant may not properly safeguard classified information

For Applicant

Questionable Judgment General

—

Denied

—

(a) prompt, good-faith correction before being confronted

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

(e) positive steps to reduce vulnerability to exploitation

—

2.b

Applicant inaccurately dated a tank log prematurely in March 2002, which resulted in a letter of warning from his employer on March 25, 2002

For Applicant

Rules Violation at Workplace

—

Denied

—

(a) prompt, good-faith correction before being confronted

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

(e) positive steps to reduce vulnerability to exploitation

—

2.c

he falsified material facts on his SF-86 when he denied, in answer to Question 22, that he had ever been fired from a job, quit a job after being told he'd be fired, left a job by mutual agreement following allegations of misconduct, left a job by mutual agreement following allegations of unsatisfactory performance, or left a job for other reasons under unfavorable circumstances

For Applicant

Falsification Security FormNOT DELIBERATESELF-CORRECTED

Employment History

Denied

—

(a) prompt, good-faith correction before being confronted

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

(e) positive steps to reduce vulnerability to exploitation

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶40)	Mitigating applied (¶41)	Mitigation
1.a	Applicant accessed pornographic Internet web sites in May 2000 on his employer's computer, in violation of company rules, procedures and guidelines, and that he was counseled by his employer about this conduct.	For Applicant	Pornography or Inappropriate Content on System	Denied	(a) unauthorized entry into 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 … (b) the misuse was minor and done solely in the interest of organizational efficiency and effectiveness	—
1.b	Applicant accessed pornographic Internet web sites on his employer's computer in March 2001, conduct which was specifically prohibited by company rules, procedures, and guidelines and for which he was fired by his employer on March 23, 2001.	For Applicant	Pornography or Inappropriate Content on System	Denied	(a) unauthorized entry into 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 … (b) the misuse was minor and done solely in the interest of organizational efficiency and effectiveness	—

Allegation

Finding

Type

Response

Disqualifying (¶40)

Mitigating applied (¶41)

Mitigation

1.a

Applicant accessed pornographic Internet web sites in May 2000 on his employer's computer, in violation of company rules, procedures and guidelines, and that he was counseled by his employer about this conduct.

For Applicant

Pornography or Inappropriate Content on System

Denied

(a) unauthorized entry into 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 …

(b) the misuse was minor and done solely in the interest of organizational efficiency and effectiveness

—

1.b

Applicant accessed pornographic Internet web sites on his employer's computer in March 2001, conduct which was specifically prohibited by company rules, procedures, and guidelines and for which he was fired by his employer on March 23, 2001.

For Applicant

Pornography or Inappropriate Content on System

Denied

(a) unauthorized entry into 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 …

(b) the misuse was minor and done solely in the interest of organizational efficiency and effectiveness

—

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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