KEYWORD: Guideline D; Guideline J
DIGEST: Department Counsel argues that the Judge failed to consider the fact that Applicant
was HIV positive when he committed his sexual offense in 2003.  The language employed by the
Judge suggests otherwise.  Favorable decision affirmed.
CASENO: 04-09618.a1
DATE: 06/26/2007
DATE: June 26, 2007
In Re:
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SSN: --------
Applicant for Security Clearance
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ISCR Case No. 04-09618
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Julie R. Edmunds, Esq., Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 1, 2004, DOHA issued a statement of reasons advising Applicant of the
basis for that decision–security concerns raised under Guideline D (Sexual Behavior) and Guideline
J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
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(Directive).  Applicant requested a hearing.  On October 25, 2006, after the hearing, Administrative
Judge Marc E. Curry granted Applicant’s request for a security clearance.  Department Counsel filed
a timely appeal pursuant to Directive ¶¶  E3.1.28 and E3.1.30. 
Department Counsel raises the following issue on appeal: whether the Judge’s decision is
arbitrary, capricious, and contrary to law in that he did not consider significant record evidence.
Finding no error, we affirm.
The Judge found the following: Applicant, a Naval veteran, is facility security officer for a
staffing firm that serves clients with security clearances.  Applicant submitted his application for a
clearance on September 11, 2003.  In October 2003, a police officer observed Applicant engaging
in a sexual act with another person in front of a urinal in a department store restroom.  The officer
arrested Applicant.  Applicant was charged with indecent exposure and with an additional offense
arising from the sexual act.  He served six months of unsupervised probation, after which the
indecent exposure charge was nulle prossed and the other dismissed.  
This was the only time Applicant engaged in such conduct.  He underwent counseling, both
by himself and with his domestic partner.  He has informed both his partner and his employer of the
offense.  
Department Counsel did not challenge the Judge’s findings, adopting them as part of her
brief.  However, she argued that the Judge erred in not taking into consideration the fact that, at the
time of the offense, Applicant was HIV positive.  She argued that the risks inherent in Applicant’s
conduct raise serious doubts as to his judgement, reliability, and trustworthiness. 
We have examined the Judge’s decision in light of the record as a whole.  We do not find
Department Counsel’s argument persuasive.  We note first of all that a Judge is presumed to have
considered all evidence in the record.  See, e. g., ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13,
2005).  Additionally, we note the following statement from the Conclusions section of the Judge’s
decision.  “In engaging in a sexual act in a public restroom with a stranger, Applicant brazenly
disregarded the health risks of such activity, and its potential legal consequences.”  Decision at 5.
Although he did not mention the term “HIV,” the Judge did, obviously, give serious consideration
to the riskiness of Applicant’s conduct and weighed it as part of his whole person analysis.  Though
Department Counsel may disagree with the Judge’s weighing of the evidence, the Board finds no
reason to conclude that the Judge’s decision is arbitrary, capricious, or contrary to law.  
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Order
The Judge’s decision granting Applicant a clearance is AFFIRMED.
Signed: Michael Y. Ra’anan      
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jean E. Smallin              
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board