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(clearance)Tj
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(for him. )Tj
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(See )Tj
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(Directive, Enclosure 2, Item E2.2.2, and Additional Procedural Guidance,\
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/TT0 1 Tf
(Security )Tj
16.527 0 Td
(requirements include consideration of a)Tj
-30.746 -1.125 Td
(person's judgment, reliability, and trustworthiness. )Tj
/TT1 1 Tf
20.455 0 Td
(Cafeteria & Restaurant Workers Union)Tj
/TT0 1 Tf
15.832 0 Td
(, )Tj
/TT1 1 Tf
(Local 473 )Tj
/TT0 1 Tf
(v. )Tj
/TT1 1 Tf
(McElroy)Tj
/TT0 1 Tf
(, 284)Tj
-36.287 -1.125 Td
(F.2d 173, 183 \(D.C. Cir. 1960\), )Tj
/TT1 1 Tf
(aff'd)Tj
/TT0 1 Tf
14.659 0 Td
(, 367 U.S. 886 \(1961\).)Tj
/TT1 1 Tf
( )Tj
/TT0 1 Tf
(Moreover, the Personal Conduct Guideline \(Guideline E\))Tj
-14.659 -1.125 Td
(under which this case was brought deals )Tj
16.357 0 Td
(specifically with issues involving questionable judgment, untrustworthin\
ess)Tj
-16.357 -1.125 Td
(and dishonesty. )Tj
(The fact that Applicant has no security violations in his record and )Tj
33.353 0 Td
(may, in fact, have demonstrated)Tj
-33.353 -1.125 Td
(good performance in the handling of classified information did not precl\
ude the Judge from making an adverse security)Tj
T*
(clearance determination based on Applicant's inappropriate workplace beh\
avior. )Tj
32.361 0 Td
(The government need not wait until an)Tj
-32.361 -1.125 Td
(applicant mishandles or fails to )Tj
12.747 0 Td
(properly safeguard classified information before it can deny or revoke a\
ccess to such)Tj
-12.747 -1.125 Td
(information. )Tj
/TT1 1 Tf
5.221 0 Td
(Adams v. Laird)Tj
/TT0 1 Tf
(, 420 F.2d 230, 239-39 \(D.C. Cir. 1969\), )Tj
/TT1 1 Tf
(cert. )Tj
(denied)Tj
/TT0 1 Tf
27.332 0 Td
(, 397 U.S.1039 \(1970\).)Tj
-32.553 -2.125 Td
(b. )Tj
ET
0.75 w
q 1 0 0 1 16 514.5 cm
0 0 m
12 0 l
h
S
Q
BT
12 0 0 12 28 515.25 Tm
(Applicant's unblemished record since 1998)Tj
ET
q 1 0 0 1 28 514.5 cm
0 0 m
206.777 0 l
h
S
Q
BT
12 0 0 12 234.7773 515.25 Tm
(. )Tj
(Applicant argues that his recent conduct over the past three years)Tj
-18.231 -1.125 Td
(demonstrates that he has not engaged in any )Tj
17.884 0 Td
(of the objectionable conduct that took place while he was with his forme\
r)Tj
-17.884 -1.125 Td
(company, and that there is no evidence to suggest there is any current o\
r future risk of )Tj
34.6 0 Td
(violation of company rules or)Tj
-34.6 -1.125 Td
(security procedures. )Tj
8.302 0 Td
(He maintains that the Judge's decision fails to take into account this d\
emonstrated rehabilitation and)Tj
-8.302 -1.125 Td
(change )Tj
(in behavior and that the omission is harmful error.)Tj
0 -2.125 TD
(Applicant's contention is not persuasive. )Tj
16.399 0 Td
(There is a rebuttable presumption that an Administrative Judge considere\
d all)Tj
-16.399 -1.125 Td
(the record evidence unless the Judge )Tj
14.883 0 Td
(specifically states otherwise. )Tj
/TT1 1 Tf
11.718 0 Td
(See, e.g.)Tj
/TT0 1 Tf
3.332 0 Td
(, ISCR Case No. 99-9020 \(June 4, 2001\) at p.)Tj
-29.933 -1.125 Td
(2. )Tj
(Moreover, the Administrative Judge specifically addressed the issue of )Tj
29.603 0 Td
(Applicant's favorable evidence in the form of)Tj
-29.603 -1.125 Td
(job performance and his contributions in resolving security problems whe\
n evaluating the possibility of )Tj
41.658 0 Td
(behavioral)Tj
-41.658 -1.125 Td
(changes on the part of Applicant. )Tj
13.523 0 Td
(The Judge concluded that Applicant's favorable evidence did little to en\
lighten about)Tj
-13.523 -1.125 Td
(what, if any, behavioral )Tj
9.719 0 Td
(changes Applicant has made after the 1998 conduct. )Tj
21.131 0 Td
(This conclusion was reasonable. )Tj
13.191 0 Td
(Good job)Tj
-44.041 -1.125 Td
(performance and proper security practices are attributes that )Tj
24.266 0 Td
(are expected of an individual. Evidence of these attributes)Tj
-24.266 -1.125 Td
(can provide some evidence of rehabilitation but that evidence is not dis\
positive of the issue. The fact )Tj
40.488 0 Td
(that Applicant can)Tj
-40.488 -1.125 Td
(advance an alternate interpretation of the record evidence does not demo\
nstrate the Judge erred. )Tj
38.566 0 Td
(The record evidence)Tj
-38.566 -1.125 Td
(also indicates that )Tj
7.415 0 Td
(Applicant's job performance at his former company was good for many year\
s prior to and in-between)Tj
-7.415 -1.125 Td
(the incidents of misconduct. )Tj
11.525 0 Td
(This evidence supports the )Tj
10.942 0 Td
(Judge's ultimate conclusion that Applicant's favorable evidence)Tj
-22.467 -1.125 Td
(fell short of establishing Applicant's ultimate burden of persuasion in \
the case.)Tj
T*
(c. Applicant's 1998 conduct was mitigated because he was experiencing "b\
urnout)Tj
ET
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390.609 0 l
h
S
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12 0 0 12 406.6094 261.75 Tm
(." )Tj
(Applicant maintains his 1998)Tj
-32.551 -1.125 Td
(conduct in misrecording time records and )Tj
16.884 0 Td
(accessing the Internet on his former company's computers during working)Tj
-16.884 -1.125 Td
(hours resulted from burnout, boredom and frustration at being placed in \
a position )Tj
33.104 0 Td
(where he had little work to do for)Tj
-33.104 -1.125 Td
(long periods. )Tj
(On appeal, he essentially blames the company management for misusing him\
by keeping him in a position)Tj
0 -1.125 TD
(where he was underutilized without any regard to his own needs and wishe\
s. )Tj
30.881 0 Td
(Applicant claims this mitigates his conduct)Tj
-30.881 -1.125 Td
(and places it "in proper perspective." )Tj
15.005 0 Td
(The Administrative Judge did not specifically comment upon the Applicant\
's)Tj
-15.005 -1.125 Td
("burnout" theory in his decision, but instead focused on the serious nat\
ure of )Tj
30.866 0 Td
(Applicant's extensive use of the Internet on)Tj
-30.866 -1.125 Td
(company time and the brazenness )Tj
13.745 0 Td
(of the manner in which Applicant improperly recorded his work time. )Tj
28.159 0 Td
(Regarding the)Tj
-41.904 -1.125 Td
(mitigation of )Tj
5.444 0 Td
(the improper recording of work time, Applicant's argument fails to make \
a rational connection between the)Tj
-5.444 -1.125 Td
(condition of being )Tj
7.582 0 Td
(bored, underutilized or misused and the act of deliberate misrepresentat\
ion of hours worked on)Tj
-7.582 -1.125 Td
(official company records. )Tj
10.496 0 Td
(The Administrative Judge was not )Tj
13.97 0 Td
(compelled to find such evidence mitigating of Applicant's)Tj
-24.465 -1.125 Td
(intentional misconduct. )Tj
9.637 0 Td
(While the type of idleness and boredom described by Applicant may be )Tj
28.88 0 Td
(rationally connected to)Tj
-38.518 -1.125 Td
(his extensive use of the Internet for unauthorized, personal reasons, th\
e Judge did not err by not specifying such conduct)Tj
T*
(as mitigating. )Tj
5.694 0 Td
(Applicant has failed to demonstrate the Judge erred.)Tj
-5.694 -2.125 Td
(d. Administrative Judge erred by viewing Applicant's 1990 conduct as mor\
e serious than it really was)Tj
ET
q 1 0 0 1 16 60 cm
0 0 m
487.383 0 l
h
S
Q
BT
12 0 0 12 503.3828 60.75 Tm
(. )Tj
(Applicant claims)Tj
-40.615 -1.125 Td
(the Administrative Judge erred by )Tj
13.857 0 Td
(viewing Applicant's involvement with sexually oriented materials in 1990\
as a serious)Tj
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(of the investigation. )Tj
8.221 0 Td
(In )Tj
(evaluating the Applicant's claim, which he asserts is unrefuted, three f\
actors are significant: \(1\))Tj
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(Applicant did not raise an objection at the time of the )Tj
21.577 0 Td
(investigation concerning perceived inaccuracies in computing the)Tj
-21.577 -1.125 Td
(hours; \(2\) at the hearing, although he claimed that both of the hourly\
figures were )Tj
32.879 0 Td
(exaggerated, he offered no alternative)Tj
-32.879 -1.125 Td
(evidence indicating what the hourly figures should have been; and \(3\) \
there was no evidence corroborating Applicant's)Tj
0 -1.125 TD
(claims that the figures were inaccurate. )Tj
15.909 0 Td
(It was not arbitrary or capricious for the Judge to rely upon the repres\
entations)Tj
-15.909 -1.125 Td
(of the internal company investigation )Tj
15.19 0 Td
(when making his findings of fact.)Tj
-15.19 -2.125 Td
(Concerning the 101-hour figure, the Judge erred in citing the Applicant'\
s November 30, 1998 statement for the)Tj
T*
(proposition that Applicant was earlier )Tj
15.357 0 Td
(acknowledging the accuracy of that figure. )Tj
17.354 0 Td
(In that statement Applicant makes no)Tj
-32.71 -1.125 Td
(comment concerning the accuracy or inaccuracy of the 101- hour figure. )Tj
29.209 0 Td
(However, that error is harmless given the fact)Tj
-29.209 -1.125 Td
(that there is record evidence in the form of the company's investigation\
that supports the Judge's finding and an )Tj
44.71 0 Td
(overall)Tj
-44.71 -1.125 Td
(review of the Judge's decision convinces the Board that he was relying g\
enerally on the company's investigation in)Tj
T*
(making his findings of fact. )Tj
11.276 0 Td
(Applicant fails to demonstrate that the overall finding of the Administr\
ative Judge)Tj
-11.276 -1.125 Td
(concerning the number of hours of computer misuse was error.)Tj
0 -2.125 TD
(c. Applicant's repudiation of his signed incriminating statement)Tj
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(. )Tj
(At the hearing Applicant repudiated much of his)Tj
-25.341 -1.125 Td
(November 30, 1998 statement, a statement )Tj
17.329 0 Td
(that provided significant admissions of misconduct while he was working \
for)Tj
-17.329 -1.125 Td
(his company. )Tj
5.583 0 Td
(On appeal, Applicant claims that he was under extreme duress )Tj
25.186 0 Td
(when he signed the statement, which was)Tj
-30.769 -1.125 Td
(prepared by a company investigator. )Tj
14.828 0 Td
(He argues that the statement is suspect because: \(i\) he did not have t\
he benefit of)Tj
-14.828 -1.125 Td
(counsel and was not provided any due process within the company; \(ii\) \
he was told he would be fired immediately if he)Tj
0 -1.125 TD
(didn't find sign the statement; and \(iii\) )Tj
15.539 0 Td
(he admitted to committing acts that were highly suspect and exaggerated \
in order)Tj
-15.539 -1.125 Td
(to avoid immediate termination. )Tj
13.08 0 Td
(In resolving this conflict in the record )Tj
15.357 0 Td
(evidence, the Administrative Judge found)Tj
-28.437 -1.125 Td
(Applicant's signed statement to be more credible than his hearing testim\
ony. )Tj
30.784 0 Td
(He indicated that it was difficult to)Tj
-30.784 -1.125 Td
(understand why Applicant would sign a statement that contained so much f\
alse information. )Tj
37.103 0 Td
(He also noted that)Tj
-37.103 -1.125 Td
(Applicant had failed to provide any independent )Tj
19.577 0 Td
(support as to why the November 1998 statement should not be)Tj
-19.577 -1.125 Td
(believed.)Tj
0 -2.125 TD
(The Applicant's hearing statements concerning the November 30, 1998 stat\
ement were evidence that the Judge was)Tj
0 -1.125 TD
(required to consider. )Tj
8.497 0 Td
(However, the Judge )Tj
(was not required to accept Applicant's representations but instead was d\
uty)Tj
-8.497 -1.125 Td
(bound to evaluate that evidence in light of all the evidence of record. \
)Tj
27.767 0 Td
(The Judge's )Tj
(weighing of the evidence in this)Tj
-27.767 -1.125 Td
(instance also involved making a credibility determination concerning the\
Applicant's repudiation of the November 30,)Tj
T*
(1998 )Tj
(statement. )Tj
6.582 0 Td
(While they are not immune from review on appeal, credibility determinati\
ons are entitled to deference)Tj
-6.582 -1.125 Td
(by the Board. )Tj
5.666 0 Td
(Considering these factors and )Tj
12.108 0 Td
(the record evidence as a whole, the Board concludes that the Administrat\
ive)Tj
-17.773 -1.125 Td
(Judge's finding that the contents of Applicant's November 30, 1998 state\
ment were )Tj
33.436 0 Td
(accurate is reasonable and)Tj
-33.436 -1.125 Td
(sustainable.)Tj
0 -2.125 TD
(2. )Tj
(Whether the Administrative Judge's adverse decision is arbitrary, capric\
ious, or contrary to law)Tj
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(. )Tj
(On appeal, Applicant)Tj
-39.057 -1.125 Td
(claims the following errors in the )Tj
13.552 0 Td
(Administrative Judge's decision: \(a\) the Administrative Judge's advers\
e security)Tj
-13.552 -1.125 Td
(clearance decision was error since Applicant has had no security violati\
ons and )Tj
31.933 0 Td
(the instances of bad conduct at his)Tj
-31.933 -1.125 Td
(company were unrelated to his handling of classified information; \(b\) \
Applicant's conduct and security record since)Tj
0 -1.125 TD
(1998 )Tj
(have been unblemished and the Judge erred by giving no consideration to \
this more recent conduct; \(c\) Applicant's)Tj
T*
(1998 conduct is mitigated because )Tj
14.024 0 Td
(Applicant was experiencing "burnout" as a result of lack of meaningful w\
ork,)Tj
-14.024 -1.125 Td
(boredom and his company's refusal to allow him to transfer to another po\
sition; )Tj
32.035 0 Td
(\(d\) the Administrative Judge erred by)Tj
-32.035 -1.125 Td
(concluding Applicant's 1990 conduct was more serious than it really was;\
\(e\) the Administrative Judge erred by)Tj
T*
(concluding Applicant's conduct in 1990 and 1998 formed a pattern; \(f\) \
the Administrative Judge failed to consider that)Tj
T*
(the allegations made against Applicant )Tj
15.745 0 Td
(were unsubstantiated; and \(g\) the Administrative Judge failed to analy\
ze the case)Tj
-15.745 -1.125 Td
(using the "whole person" concept. )Tj
13.924 0 Td
(The Board interprets these arguments as )Tj
16.328 0 Td
(raising the issue of whether the Judge's)Tj
-30.252 -1.125 Td
(decision is arbitrary, capricious or contrary to law.)Tj
0 -2.125 TD
(a. No security violations/misconduct unrelated to security concerns)Tj
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(. On appeal, Applicant acknowledges some lack of)Tj
-26.881 -1.125 Td
(judgment and dishonesty in the 1990 )Tj
14.999 0 Td
(incident where he was found accessing sexually-related materials on comp\
any)Tj
-14.999 -1.125 Td
(computer systems, and in the 1998 incident where he improperly recorded \
his )Tj
31.353 0 Td
(absences and used the Internet on)Tj
-31.353 -1.125 Td
(company time for personal reasons. )Tj
14.496 0 Td
(However, Applicant denies that there is any nexus between these incident\
s and his)Tj
-14.496 -1.125 Td
(security eligibility, especially since he has never committed a security\
violation and he has, in fact, received high praise)Tj
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(Guidance, Item )Tj
6.414 0 Td
(E3.1.32.1. )Tj
(The Board must consider not only whether there is record evidence suppor\
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21.771 0 Td
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-21.771 -1.125 Td
(findings. )Tj
/TT1 1 Tf
(See, e.g.)Tj
/TT0 1 Tf
(, ISCR Case No. 99-0205 \(October 19, 2000\) at p. 2.)Tj
0 -2.125 TD
(When a challenge to an Administrative Judge's rulings or conclusions rai\
ses a question of law, the Board's scope of)Tj
0 -1.125 TD
(review is plenary. )Tj
/TT1 1 Tf
7.386 0 Td
(See )Tj
/TT0 1 Tf
(DISCR Case No. )Tj
(87-2107 \(September 29, 1992\) at pp. 4-5 \(citing federal cases\).)Tj
/TT2 1 Tf
13.839 -2.125 Td
(Appeal Issues)Tj
/TT0 1 Tf
-21.225 -2.125 Td
(1. )Tj
(Whether certain of the Administrative Judge's findings of fact are erron\
eous)Tj
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(. )Tj
(Applicant asserts the following with)Tj
-31.392 -1.125 Td
(regard to certain of the Administrative )Tj
15.605 0 Td
(Judge's findings of fact: \(a\) the Administrative Judge erred by findin\
g Applicant)Tj
-15.605 -1.125 Td
(misused company equipment or time when downloading files from the )Tj
28.55 0 Td
(ARPANET using a File Transfer Protocol; \(b\))Tj
-28.55 -1.125 Td
(the record evidence does not support the Administrative Judge's finding \
concerning the number of hours )Tj
41.975 0 Td
(Applicant)Tj
-41.975 -1.125 Td
(improperly recorded on his time sheet as regular time and overtime hours\
and the Administrative Judge's finding)Tj
T*
(concerning the number of hours )Tj
13.024 0 Td
(Applicant improperly used company computers to access the Internet for p\
ersonal)Tj
-13.024 -1.125 Td
(reasons; and \(c\) the Administrative Judge erred by finding Applicant )Tj
27.77 0 Td
(voluntarily signed an incriminating statement and)Tj
-27.77 -1.125 Td
(by not accepting Applicant's repudiation of alleged inaccuracies in that\
statement. )Tj
32.946 0 Td
(These assertions will be )Tj
9.831 0 Td
(discussed in)Tj
-42.777 -1.125 Td
(turn.)Tj
0 -2.125 TD
(a. Misusing company equipment or time when downloading files)Tj
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(. )Tj
(The SOR alleged Applicant was issued a Corrective)Tj
-26.023 -1.125 Td
(Action Memorandum in August 1991 )Tj
15.304 0 Td
(and suspended from work for one day without pay for misusing company)Tj
-15.304 -1.125 Td
(materials, supplies and time by storing pornographic and obscene materia\
ls on )Tj
31.603 0 Td
(company computers. )Tj
8.581 0 Td
(The Administrative)Tj
-40.184 -1.125 Td
(Judge found that in December 1990 a computer administrator at Applicant'\
s employer discovered Applicant and )Tj
45.084 0 Td
(another)Tj
-45.084 -1.125 Td
(employee had used company computers and system accounts for personal pur\
poses, to wit, accumulating and storing)Tj
0 -1.125 TD
(pornographic and obscene )Tj
10.746 0 Td
(materials on company equipment. )Tj
13.802 0 Td
(The Judge found that Applicant's storage of the material)Tj
-24.548 -1.125 Td
(was unacceptable conduct, that he was misusing company materials )Tj
27.38 0 Td
(and supplies, and that the activity took Applicant)Tj
-27.38 -1.125 Td
(away from his employment-related duties. )Tj
17.162 0 Td
(Applicant asserts: \(i\) it was Applicant's job to seek out and locate )Tj
26.396 0 Td
(files on the)Tj
-43.558 -1.125 Td
(ARPANET \(a predecessor to the Internet\) to see if they could be useful\
to the company; \(ii\) the technology of the)Tj
T*
(ARPANET did not allow for )Tj
(precisely identifying and editing contents of a file before they were in\
troduced into the)Tj
T*
(company computer system, and \(iii\) the introduction of the inappropria\
te )Tj
29.409 0 Td
(materials was therefore innocent and not)Tj
-29.409 -1.125 Td
(indicative of wrongdoing by Applicant.)Tj
0 -2.125 TD
(A review of the decision below reveals that the Judge based his findings\
on both the accumulation and storage of)Tj
0 -1.125 TD
(inappropriate materials. )Tj
9.746 0 Td
(The fact that )Tj
5.303 0 Td
(Applicant has a plausible explanation for how the materials were introdu\
ced)Tj
-15.049 -1.125 Td
(initially into the company system does not undercut the Judge's broader \
finding )Tj
32.007 0 Td
(that Applicant engaged in inappropriate)Tj
-32.007 -1.125 Td
(conduct by holding onto and storing the materials.)Tj
0 -2.125 TD
(b. Number of hours inappropriately recorded and number of hours where co\
mpany computers were used for personal)Tj
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S
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12 0 0 12 16 250.5 Tm
(reasons)Tj
ET
q 1 0 0 1 16 249.75 cm
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35.988 0 l
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12 0 0 12 51.9883 250.5 Tm
(. )Tj
(The SOR alleged that Applicant )Tj
13.58 0 Td
(was involuntarily terminated from his position with his company in Janua\
ry)Tj
-16.579 -1.125 Td
(1999 for improperly recording 66 hours of regular time and overtime hour\
s in 1998 )Tj
33.603 0 Td
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(technical flaws )Tj
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