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ISCR Case 97-0087.h1 — CASE

ISCR Case 97-0087.h1denied

Case Headnote

ISCR Case No. 97-0087.h1

deniedAug 21, 1997· Hon. John R. Erck· hearing

Summary

A 62-year-old vice president and facility security officer at Company X was denied a security clearance under Guideline E (Personal Conduct) and Guideline K (Handling Protected Information). The denial stemmed from multiple willful violations of security regulations over a four-year period.

Specifically, the applicant knowingly and willfully failed to follow security requirements outlined in the Industrial Security Manual and the National Industrial Security Operating Manual. This included allowing two uncleared employees, Mr. A and Mr. B, access to classified information at Company X and other facilities. The applicant also prepared numerous falsified classified visit letters for these individuals, authorizing their access to classified information at government and defense contractor facilities. Additionally, an uncleared employee, Mr. C, was permitted to process classified information on a Company X network analyzer.

The judge found that the applicant's actions demonstrated questionable judgment and an unwillingness to comply with rules. The applicant admitted to the violations during the investigation, and claims of job-related stress were not found to mitigate the deliberate nature or frequency of these security breaches. The security clearance was therefore denied.

Why the Applicant Was Denied

The applicant knowingly and willfully allowed uncleared employees access to classified information over a four-year period.
He prepared falsified classified visit letters for these employees, admitting to the violations during the investigation.
The applicant's claims of job-related stress did not mitigate the severity or frequency of his security violations.

Conditions Referenced

Disqualifying

K.1raisedUnauthorized Disclosure of Classified Information
K.2raisedViolations That Are Deliberate or Multiple or Due to Negligence
E.5raisedA Pattern of Dishonesty or Rule Violations

Key Rule Quoted

“A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence.”
— Department of Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedFeb 21, 1997
Answer filedMar 25, 1997Applicant requested decision without a hearing.
Hearing held—
Decision dateAug 21, 1997

Cite For

Denial of Security Clearance Due to Willful Security Violations Under Guideline K
Impact of Personal Conduct on Security Clearance Under Guideline E
The Importance of Trust and Confidence in Security Clearance Determinations.

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 that the applicant demonstrated questionable judgment and an unwillingness to comply with rules and regulations by failing to adhere to security protocols over a four-year period. The applicant's admissions of wrongdoing during the investigation were insufficient to mitigate the concerns raised by his conduct. The outcome was a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant demonstrated questionable judgment and an unwillingness to comply with rules and regulations by failing to comply with security regulations on numerous occasions over a four year period.	Against Applicant	Pattern of Dishonesty or Rule ViolationsFOUND DELIBERATE	—	Admitted	—	—	—

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 K (Handling Protected Information) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant, as the Facility Security Officer, knowingly and willfully violated security regulations by allowing uncleared employees access to classified information. Despite admitting to these violations, the applicant's claims of job-related stress did not mitigate the severity of his actions, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
1.a	Applicant knowingly and willfully failed to follow the security requirements prescribed by the Industrial Security Manual for Safeguarding Classified Information - DoD 5220.22M, dated January 1991 (ISM) and by the National Industrial Security Operating Manual - DoD 5220.22M, dated January 1995 (NISPOM).	Against Applicant	Failure to Safeguard or Secure	Admitted	(a) deliberate or negligent disclosure of protected information to unauthorized persons (personal/business contacts, media, persons at seminars/meetings/c… (b) collecting or storing protected information in any unauthorized location	—	—
1.a. (1)	Applicant allowed two uncleared employees (Mr. A and Mr. B) access to classified information at Company X's principal place of business.	Against Applicant	Failure to Safeguard or Secure	Admitted	(a) deliberate or negligent disclosure of protected information to unauthorized persons (personal/business contacts, media, persons at seminars/meetings/c… (b) collecting or storing protected information in any unauthorized location	—	—
1.a. (2)	Applicant prepared numerous classified visit letters (CVL's) for each of them which authorized them to access classified information at government facilities and at facilities operated by other defense contractors.	Against Applicant	Failure to Safeguard or Secure	Admitted	(a) deliberate or negligent disclosure of protected information to unauthorized persons (personal/business contacts, media, persons at seminars/meetings/c… (b) collecting or storing protected information in any unauthorized location	—	—
1.a. (3)	Applicant allowed Mr. C (an uncleared Company X employee) to process classified information on a Company network analyzer.	Against Applicant	Failure to Safeguard or Secure	Admitted	(a) deliberate or negligent disclosure of protected information to unauthorized persons (personal/business contacts, media, persons at seminars/meetings/c… (b) collecting or storing protected information in any unauthorized location	—	—
2.a	Applicant demonstrated both questionable judgment and an unwillingness to comply with rules and regulations by failing to comply with security regulations on numerous occasions over a four year period.	Against Applicant	Failure to Safeguard or Secure	Admitted	(a) deliberate or negligent disclosure of protected information to unauthorized persons (personal/business contacts, media, persons at seminars/meetings/c… (b) collecting or storing protected information in any unauthorized location	—	—

Descriptive standardized rendering of a decided public case (Guideline K). 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: August 21, 1997 ____________________________________ In Re: Applicant for Security Clearance ____________________________________ ISCR OSD Case No. 97-0087 DECISION OF ADMINISTRATIVE JUDGE JOHN R. ERCK APPEARANCES FOR THE GOVERNMENT Michael H. Leonard Department Counsel FOR THE APPLICANT Pro Se

STATEMENT OF CASE

On February 21, 1997, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, "Safeguarding Classified Information Within Industry," dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6 "Defense Industrial Personnel Security Clearance Review Program" (Directive) dated January 2, 1992, as amended by Change 3, dated February 13, 1996, issued a Statement of Reasons (SOR) to Applicant which detailed reasons why DOHA could not make a preliminary determination that it was clearly consistent with the national interest to grant or continue a security clearance for him. A copy of the SOR is attached to this Decision and included herein by reference. Applicant's undated answer to the SOR was received by DOHA on March 25, 1997. In it, he requested that his case be decided without a hearing. Applicant received the Government's File of Relevant Material (FORM) consisting of seven exhibits on May 5, 1997. He did not respond to the Government's FORM. The case record was closed on June 4, 1997, and assigned to this DOHA Administrative Judge for decision on the same date.

FINDINGS OF FACT

In his answer to the Statement of Reasons, Applicant admitted all factual allegations set forth under paragraph 1 (Criterion K) and under paragraph 2 (Criterion E). 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: Applicant is 62 years old and has held a secret clearance since 1984. The record does not disclose the length of time he has worked for Company X, the defense contractor who is his current employer. His title and responsibilities at the time of the misconduct alleged in the SOR were vice president and facility security officer (FSO). Applicant's suitability to retain his security clearance is in question because as FSO of Company X, he knowingly and willfully failed to follow the security requirements prescribed by the Industrial Security Manual for Safeguarding Classified Information - DoD 5220.22M, dated January 1991 (ISM) and by the National Industrial Security Operating Manual - DoD 5220.22M, dated January 1995 (NISPOM). Beginning on an undisclosed date in 1992, Applicant allowed two uncleared employees (Mr. A and Mr. B) access to classified information at Company X's principal place of business. In addition, he prepared numerous classified visit letters (CVL's) for each of them which authorized them to access classified information at government facilities and at facilities operated by other defense contractors. Both Mr. A and Mr. B had completed security questionnaires at the time they began working for Company X, but Applicant (the FSO) was preoccupied with other work and did not submit their paperwork to the Department of Defense for processing. More recently in May 1996, Applicant allowed Mr. C (an uncleared Company X employee) to process classified information on a Company network analyzer. He did not think he was violating security regulations because he had turned off the monitor display so Mr. C could not see the frequencies which were being tested. When Applicant was questioned by the Defense Investigative Service (DIS) on November 13, 1996, he readily admitted his responsibility for several security violations. In a signed, sworn statement (FORM Item # 7), he admitted that he "knowingly and willingly allowed (Mr. A) access to information that he had no clearance for." He admitted that he had "willfully generated and sent a falsified classified visit letter" which allowed Mr. A to visit a facility in another state. As if to further explain, he added "I knew it was wrong and that it was a security violation for (Mr. A) to have access to classified information but I did it anyway." In the same statement, he admitted that he had allowed Mr. B access to classified information when he "knew (Mr. B) did not have a security clearance. And he admitted that he had "willfully generated a falsified CVL" to enable this employee to visit another defense contractor. Applicant attributes his failure to observe security procedures to job-related stress. He was overwhelmed by the multiple responsibilities he had assumed in a company which was experiencing serious cash-flow problems because of a shrinking market for its products. His statement to the DIS--in addition to being an admission of wrongdoing--is also an attempt by Applicant to understand (for himself) what had gone wrong, why he had been so overwhelmed, and why it became impossible for him to fulfill all of his responsibilities. He acknowledges that he was aware of security regulations from reading the ISM and NISPON, and also from visits and inspections by the Industrial Security Representative. The record discloses that Company X has hired another FSO since these violations occurred.

POLICIES

The Adjudicative Guidelines of the Directive are not a set of inflexible rules of procedure. Instead, they are to be applied by Administrative Judges on a case-by-case basis with an eye toward making determinations with reasonable consistency that are clearly consistent with the interests of national security. In making those overall common sense determinations, Administrative Judges must consider, assess, and analyze the evidence of record, both favorable and unfavorable, not only with respect to the relevant Adjudicative Guidelines but in the context of the factors set forth in section F.3. of the Directive as well. In that vein, the government not only has the burden of proving any controverted fact(s) alleged in the SOR, it must also demonstrate that the facts proven have a nexus to an applicant's lack of security worthiness. The following Adjudicative Guidelines are deemed applicable to the instant matter. SECURITY VIOLATIONS (Criterion K) Noncompliance with security regulations raises doubt about an individual's trustworthiness, willingness, and ability to safeguard classified information. Conditions that could raise a security concern and may be disqualifying include: (1) Unauthorized disclosure of classified information; (2) Violations that are deliberate or multiple or due to negligence. Conditions that could mitigate security concerns include actions that: None Applicable PERSONAL CONDUCT (Criterion E) Conduct involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information. Conditions that could raise a security concern and may be disqualifying also include: (5) A pattern of dishonesty or rule violations. Conditions that could mitigate security concerns include: None Applicable Burden of Proof The Government has the burden of proving any controverted facts alleged in the Statement of Reasons. If the Government establishes its case, the burden of persuasion shifts to the applicant to establish his security suitability through evidence which refutes, mitigates, or extenuates the disqualifying conduct and demonstrates that it is clearly consistent with the national interest to grant or continue his security clearance. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he is nonetheless security worthy. As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." As this Administrative Judge understands that Court's rationale, doubts are to be resolved against an applicant.

CONCLUSION

Having considered the record evidence in accordance with the appropriate legal precepts and factors, this Administrative Judge concludes that the Government has established its case with regard to Criteria K and E. In reaching my decision, I have considered the evidence as a whole, including each of the factors enumerated in Section F.3, as well as those referred to in the section dealing with the Adjudicative Process, both in the Directive. The Government has established its case with respect to Criterion K. In both his signed, sworn statement to the DIS, and in his response to the allegations in the SOR, Applicant has admitted that he knowingly and willfully committed security violations. While serving as FSO for Company X, he allowed two uncleared employees access to classified information on numerous occasions over a four year period. On several occasions, he prepared classified visit letters for these employees which authorized them to visit and access classified information at other facilities. More recently, he allowed a third uncleared employee access to classified information by having him process this information on company equipment. Applicant knew what he was doing on each occasion, and he knew that he was violating security regulations. Applicant receives little benefit from the mitigating considerations in the Directive's Adjudicative Guidelines. His actions were not inadvertent because he admits that he "willfully provided classified information to two uncleared individuals." As the FSO for Company X, he knew that uncleared employees should not have access to classified information. His actions were not isolated or infrequent; he allowed uncleared employees access to classified information on different occasions and under different circumstances over a four year period. And Applicant's violations of security regulations were not caused by improper or inadequate training. He admits that he was familiar with the ISM and NISPOM, that he had a working knowledge of security requirements, and that he had been briefed by a Industrial Security Representative annually. In his signed, sworn statement to the DIS, Applicant stated his intention to hire a "full time FSO" with experience. An attachment to his answer (to the SOR) confirms that a new FSO has been hired. Consideration has been given to the circumstances under which the violations occurred. Applicant has painted a convincing portrait of a very difficult work environment in which he had assumed an array of responsibilities that were almost impossible for him to fulfill. The record fails to disclose how, when, and why the situation deteriorated to the point that it had when the security violations occurred. While Applicant's predicament may be deserving of sympathy, it does not provide a basis for mitigating his numerous, knowing and willful violations of security regulations. Subparagraphs 1.a (1), 1.a. (2), and 1.a. (3) and Criterion K are concluded against Applicant. Criterion E addresses conduct involving questionable judgment or unwillingness to comply with rules and regulations. By failing to comply with security regulations on numerous occasions over a four year period, Applicant demonstrated both questionable judgment and an unwillingness to comply with rules and regulations. Favorable consideration has been given to Applicant's cooperation, honesty and truthfulness during the DIS investigation. He freely acknowledged in his signed, sworn statement that he had knowingly violated security regulations by allowing uncleared employees access to classified information and by preparing classified visit letters for them. However the good judgment and cooperation demonstrated by Applicant during the DIS investigation is insufficient to mitigate the pattern of security violations which he committed and allowed to occur as the FSO of Company X. Subparagraph 2.a. and Criterion E are concluded against Applicant.

FORMAL FINDINGS

Formal Findings as required by Section 3, Paragraph 7, of Enclosure 1 of the Directive are hereby rendered as follows: Paragraph 1 (Criterion K) AGAINST THE APPLICANT Subparagraph 1.a. Against the Applicant Subparagraph 1.a. (1). Against the Applicant Subparagraph 1.a. (2) Against the Applicant Subparagraph 1.a. (3). Against the Applicant Paragraph 2 (Criterion E) AGAINST THE APPLICANT Subparagraph 2.a. Against the Applicant

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to continue Applicant's security clearance. John R. Erck Administrative Judge