A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 02-27870.a1

Appeal Board

Decided Feb 15, 2006 · Administrative Judge Michael Y. Ra'anan · Appeal

Reading

Workbench

Case headnote

Summary

The applicant, a former employee who accessed his company's CFO's email and calendar without authorization, sought a security clearance under Guideline E (Personal Conduct) and Guideline M (Misuse of Information Technology Systems). The Administrative Judge found mitigating factors, including the lack of security measures in place and the applicant's remorse, leading to a favorable decision for the applicant.

Why the applicant prevailed

The applicant's access to the CFO's accounts was not illegal as there were no security measures in place.
The applicant demonstrated remorse and took responsibility for his actions, which were uncharacteristic of his behavior.
The conduct occurred five years prior, and the applicant has since shown rehabilitation and maintained a good reputation among colleagues.

Conditions referenced

Disqualifying

E2 Personal Conductraised
Misuse of Information Technology Systems Misuse of Information Technology Systemsraised

Mitigating

E3 Mitigating Condition 5applied
E2 Mitigating Condition 1applied

Key rule quoted

“Department Counsel's ability to argue for an alternative interpretation of the record evidence does not demonstrate error by the Administrative Judge.”

Procedural posture

SOR issued: March 24, 2004
Answer filed
Hearing held: May 9, 2005
Decision date: February 15, 2006

Cite for

Mitigating Factors Under Guideline E Related to Lack of Security Measures
Consideration of Remorse and Rehabilitation in Security Clearance Cases
Interpretation of Poor Judgment in the Context of Mitigating Conditions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance

The appeal involved a decision by an Administrative Judge granting a security clearance to the Applicant despite concerns under Guideline M and Guideline E. Department Counsel appealed, arguing that the Judge's application of mitigating conditions and whole person analysis were erroneous. The Board affirmed the Judge's decision, finding no harmful error in the arguments presented.

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Allegations under Guideline E

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Allegations under Guideline M

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Full decision

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Decision text, by section

Appeal Board Decision

decision affirmed. -->        DATE: February 15, 2006 <HR> In Re: -------------------- SSN: ----------- Applicant for Security Clearance <HR> ISCR Case No. 02-27870 APPEAL BOARD DECISION APPEARANCES FOR GOVERNMENT Richard A. Stevens, Esq., Department Counsel FOR APPLICANT Chester H. Morgan II, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 24, 2004, DOHA issued a statement of reasons advising Applicant of the basis for that decision--security concerns raised under Guideline M (Misuse of Information Technology Systems) and Guideline E (Personal Conduct), of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended (Directive)). Applicant requested a hearing. On May 9, 2005, after the hearing, Administrative Judge Robert Robinson Gales granted Applicant's request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: (1) whether the Administrative Judge's application of Guideline E Mitigating Condition 5 is supported by the record evidence; and (2) whether the Administrative Judge's whole person analysis is sustainable in light of the record evidence. Applicant was fired from his former employer for entering the computer system calender and e-mail accounts of the company's chief financial officer (CFO) in arch 2000. While recognizing that this conduct was indicative of poor judgment and irresponsibility, and was therefore potentially disqualifying under Guideline E<A HREF="#N_1_"> (1)</A>, the Administrative Judge cited numerous factors that he concluded mitigated the government's case against Applicant. These were: (a) the fact that the CFO's computer system and e-mail accounts were readily available on the public drive of the company's computer system; (b) no password or other user identification was necessary to gain access to the accounts, and the accounts were essentially open to public view, notwithstanding the company's desire to limit access; (c) no company information technology policies or procedures or training programs put Applicant on notice that he should not have had access to the CFO's calender and e-mail accounts; (d) in the absence of any illegal "hacking" by Applicant, his attempts to view information on what was the public drive do not constitute dishonesty or a rule violation; (e) Applicant accessed the CFO's accounts primarily to review stock options data because there was a question in his mind as to whether the company was being fair to him in the awarding of performance-based stock options; and (f) even if a pattern of dishonesty and rule violations had occurred in 2000, the conduct has been mitigated because of the circumstances of the conduct, the fact that it was uncharacteristic behavior for Applicant, who was humiliated by his actions and apologized for them, the conduct occurred approximately five years ago, the conduct is unlikely to recur, and Applicant has demonstrated rehabilitation and has an excellent reputation among his colleagues. The Board concludes the Administrative Judge's findings and conclusions are supported by the record evidence. Department Counsel's ability to argue for an alternative interpretation of the record evidence on appeal does not demonstrate error on the part of the Judge. Department Counsel's specific arguments about the Judge's application of Guideline E Mitigating Condition 5 fall short of establishing error. Thus, for these reasons, the Administrative Judge did not err in granting Applicant a clearance. <CENTER>Order</ CENTER> The decision of the Administrative Judge granting Applicant a clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board <CENTER>Concurring Opinion of Administrative Judge Michael Y. Ra'anan</ CENTER> I have no substantive difference from my colleagues on this case. The Board is operating under a new Operati

Appearances

- DATE -->   DATE: February 15, 2006 <HR> In Re: -------------------- SSN: -------

Order

PAN STYLE="font-size: 10pt">Signed: William S. Fields William S. Fields <SPAN

Appeal Board Decision

t-size: 10pt">Member, Appeal Board <CENTER>Concurring Opinion of Administrative Judge Michael Y. Ra'anan</ CENTER> I have no substantive difference from my colleagues on this case. The Board is operating under a new Operating Instruction (OI-17), which I interpret as having no impact on the substance of Appeal Board decisions. The Board decision here uses the short format authorized in OI-17. The Board decision is somewhat more expansive than my reading of the short format laid out in the attachment to OI-17. Signed: Michael Y. Ra'anan Michael Y. Ra'anan Administrative Judge Member, Appeal Board <A NAME="N_1_">1. </A><SPAN STY