KEYWORD: Sexual Behavior; Criminal Conduct
DIGEST: Due to a criminal conviction for which he served 20 months of confinement, the Defense
Department is prohibited from granting Applicant a security clearance unless a waiver is granted.
Eligibility for a security clearance is denied solely as a result of 10 U.S.C. § 986(c)(1).
CASENO: 06-23605.h1
DATE: 08/30/2007
DATE:  August 30, 2007
In re:
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 06-23605
DECISION OF ADMINISTRATIVE JUDGE
MICHAEL H. LEONARD
APPEARANCES
FOR GOVERNMENT
Stephanie C. Hess, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
 Executive Order 10865, dated February 20, 1960, as amended, and DoD Directive 5220.6, dated January 2,1
1992, as amended (Directive).
 See Memorandum from the Under Secretary of Defense for Intelligence, dated August 30, 2006, Subject:2
Implementation of Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (December
29, 2005). 
2
Due to a criminal conviction for which he served 20 months of confinement, the Defense
Department is prohibited from granting Applicant a security clearance unless a waiver is granted.
Eligibility for a security clearance is denied solely as a result of 10 U.S.C. § 986(c)(1).
STATEMENT OF THE CASE
A. Introduction
In October 1998, Applicant pleaded guilty to cruelty to children to receive deferred
adjudication under the Georgia First Offender Act. He was confined for 20 months and then served
probation until May 2007, when he was discharged without an adjudication of guilt. Under 10 U.S.C.
§ 986, a person who has been convicted of a crime and served more than one year of confinement
is disqualified from being granted a security clearance. Because federal courts have decided that a
deferred adjudication under Georgia’s first-offender law is a conviction for sentencing and
immigration purposes, it follows that Applicant has a conviction for security-clearance purposes. 
B. Procedural background
Applicant contests the Defense Department’s intent to deny his eligibility for a security
clearance. Acting under the relevant Executive Order and DoD Directive,  the Defense Office of1
Hearings and Appeals (DOHA) issued a statement of reasons (SOR) to Applicant on February 9,
2007. The SOR—which is equivalent to an administrative complaint—details the factual basis for
the action and alleges security concerns under Guideline D for sexual behavior and Guideline J for
criminal conduct. In addition, the SOR includes an allegation that Applicant is disqualified, as a
matter of law, from having a security clearance granted or renewed by the Defense Department under
10 U.S.C. § 986. 
In addition to the Directive, this case is brought under the revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information (Revised Guidelines) approved by
the President on December 29, 2005. The Revised Guidelines were then modified by the Defense
Department, effective September 1, 2006. They supersede or replace the guidelines published in
Enclosure 2 to the Directive. They apply to all adjudications and other determinations where an SOR
has been issued on September 1, 2006, or thereafter.  The Directive is pending formal amendment.2
The Revised Guidelines apply to this case because the SOR is dated February 9, 2007, which is after
the effective date.  
3
On March 16, 2007, Applicant replied to the SOR and requested a hearing. He amended his
reply to the SOR on May 24, 2007. The case was assigned for hearing to another administrative
judge on May 9, 2007. It was reassigned on June 9, 2007. The hearing took place as scheduled on
June 19, 2007. 
At hearing, the SOR was amended, without objections, by removing subparagraph 1.c from
Guideline D and placing it under Guideline J as subparagraph 2.b (R. 17–18). This action was taken
so that the 10 U.S.C. § 986 allegation was properly alleged under Guideline J. Also without
objections, the SOR was amended by changing subparagraph 1.a to reflect that Applicant pleaded
guilty to one count, not two, of cruelty to children (R. 25–26). This action was taken to conform to
the evidence.   
DOHA received the hearing transcript on June 27, 2007. The record was left open until July
13, 2007, to allow the parties to brief the central issue in this case: Does Applicant’s  guilty plea and
sentence to confinement and probation under Georgia’s first-offender law constitute a conviction for
purposes of 10 U.S.C. § 986? Both parties submitted briefs (Appellate Exhibits II and III).
FINDINGS OF FACT
Based on the record evidence as a whole, the following facts are established. 
Applicant is a 39-year-old engineer with a bachelor’s degree in aerospace engineering. He
has worked for his current employer since January 2001 (Exhibit B). He initially worked as a
manufacturing engineer on microwave switching equipment for space applications. Based on his
work ethic and adaptability, he was reassigned to the company’s mechanical production group. The
company recently reassigned Applicant to the mechanical engineering group to take advantage of
his multiple skills. For this role, Applicant may need access to classified information to work on the
company’s secured programs. He has been a key performer for the company and has established a
strong work record.
Applicant completed a security-clearance application in November 2005 (Exhibit 1). This
is his initial application to obtain a security clearance from the Defense Department. In response to
a question about his police record, he fully disclosed his 1995 arrest and 1998 guilty plea to one
count of cruelty to children based on sexual activity with a 13-year-old girl. 
In about 1994, Applicant’s family met the girl’s family through church. The girl was the
youngest of several children in that family. For a brief period, Applicant dated the 25-year-old sister
of the girl. During September–November 1995, the then 27-year-old Applicant engaged in sexual
activity with the 13-year-old girl. The sexual activity consisted of oral sex received by Applicant and
mutual touching. The sexual activity took place in a car when Applicant was giving the girl a ride
home from an event or activity. It took place about five to seven times. Applicant did not orchestrate
things so he could be alone with the girl, but he did not prevent it from happening. Some weeks
before his arrest, Applicant told the girl they could no longer be alone and he would not give her
rides home if they were alone in the car. 
 O.C.G.A. § 42-8-60 – 65.3
 O.C.G.A. § 42-1-12(8). 4
 See 5 www.ganet.org/gbi.
4
Applicant was unable to find a job working as an engineer after completing his degree in
December 1994. About one year later, he decided to follow his father’s footsteps and applied to
become a firefighter. In December 1995, he disclosed his sexual activity with the girl during a
routine pre-employment polygraph examination. Two weeks later he was arrested and charged with
felony child molestation and felony aggravated child molestation. 
In October 1998, Applicant pleaded guilty to one count of cruelty to children (Exhibit C). It
was a negotiated plea under the Georgia First Offender Act.  It resulted in the court not imposing a3
judgment of guilt and deferring proceedings. The court sentenced Applicant to confinement for two
years followed by probation for eight years. Applicant was confined in a minimum-security facility
from February 1999 until his release in early October 2000, a period of about 20 months. 
As a probation requirement, Applicant entered a treatment program. In October 2000, he had
a psychosexual evaluation to assess his then psychosexual functioning and need for sex-offender
treatment (Exhibit A). During the initial evaluation, Applicant admitted molesting the 13-year-old
girl, but he minimized his conduct and blamed the victim. The evaluation recommended that
Applicant enroll in a structured, cognitive-behavioral sex-offender treatment program involving
group and individual treatment. Applicant attended the program since November 2000.
  
The active phase of treatment consisted of 7 phases of treatment covered in a minimum of
75 weeks. The aftercare phase of treatment consisted of group therapy for one year and then reduced
in the maintenance phase. The maintenance phase of treatment consisted of therapeutic services in
support of a relapse prevention plan for one year. As of July 2006, he was in full compliance with
the treatment recommendations and conditions of probation, deemed to be a low risk to reoffend,
and did not meet the diagnostic criteria for a pedophile (a person sexually attracted to children).
Since July 2006, Applicant completed the counseling and treatment requirements required by
probation and was released by his counselor with permission from his probation officer (Exhibit F).
On May 15, 2007, the court terminated Applicant’s probation (Exhibit F). This action was
taken more than one year ahead of the scheduled termination in October 2008. Two weeks later, the
court discharged Applicant under the state’s first-offender law without a court adjudication of guilt
(Exhibit G). 
At one time, Applicant was required to register with the state’s sexual-offender registry. He
is no longer required to register due to his discharge under the state’s first-offender law.  With the4
parties’ consent, a search was conducted of Georgia’s online sexual-offender registry (R. 73–75).
The search was conducted using Applicant’s name and address and the result was “no offender
found.”5
Applicant attributed his criminal conduct to sexual naivete and low self-esteem. He was
raised in a strict, religious home. It was a sheltered environment that he believes did not prepare him
 Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a6
security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10  Cir. 2002) (“It is likewise plain that thereth
is no ‘right’ to a security clearance, so that full-scale due process standards do not apply to cases such as Duane’s.”).
 Egan, 484 U.S. at 531.7
 Directive, ¶ 3.2. 8
 Directive, ¶ 3.2. 9
 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004).10
 Directive, Enclosure 3, ¶ E3.1.14.11
5
sexually or socially. His misconduct with the 13-year-old girl came after a long-term relationship
ended in 1993. This breakup devastated Applicant emotionally and left him with low self-esteem.
He accepts responsibility for his conduct, and he understands that as an adult he had a duty to prevent
any sexual activity with a minor child. Through the sex-offender treatment program, Applicant
learned about the offense cycle as well as techniques to prevent a relapse. Also, Applicant is careful
not to put himself in a compromising position. For example, although he and his family attend
church, he does not teach Sunday school or participate in youth programs.    
Applicant’s wife testified on his behalf (R. 99–112). She is 40 years old and has degrees in
child development and education. She taught school in the past, and she has been a stay-at-home
mother since the birth of their son about four years ago. She met Applicant in 1997, and they married
in March 2001. She learned about his pending criminal charges early in their dating. She describes
Applicant as an incredible father and husband. Applicant has been reliable, trustworthy, honest, and
used good judgment during their marriage. She has never had any concerns that Applicant was
sexually interested in young girls. They base their marriage on God’s principles, they keep their
family in church, and Applicant is head of the household. 
GENERAL PRINCIPLES OF LAW AND POLICIES
No one has a right to a security clearance.  As noted by the Supreme Court in Department6
of Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations
should err, if they must, on the side of denials.”  A favorable decision establishes eligibility of an7
applicant to be granted a security clearance for access to confidential, secret, or top-secret
information.  An unfavorable decision: (1) denies any application; (2)  revokes any existing security8
clearance; and (3) prevents access to classified information at any level and retention of any existing
security clearance.  Under Egan, Executive Order 10865, and the Directive, any doubt about whether9
an applicant should be allowed access to classified information will be resolved in favor of
protecting national security.
There is no presumption in favor of granting, renewing, or continuing eligibility for access
to classified information.  The government has the burden of presenting evidence to establish facts10
alleged in the SOR that have been controverted.  An applicant is responsible for presenting evidence11
 Directive, Enclosure 3, ¶ E3.1.15.12
 Directive, Enclosure 3, ¶ E3.1.15.13
 Egan, 484 U.S. at 531. 14
 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted).15
 Executive Order 10865, § 7.16
 See Attorney Sheldon  I. Cohen’s publication Loss of a Security Clearance Because of a Felony Conviction:17
The Effect of 10 U.S.C. § 986, the “Smith Amendment,” at www.sheldoncohen.com/publications (background
information on the origin of this statutory prohibition). 
6
to refute, explain, extenuate, or mitigate facts that have been admitted or proven.  In addition, an12
applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.  In Egan,13
the Supreme Court said that the burden of proof is less than the preponderance of the evidence.  The14
agency appellate authority has followed the Court’s reasoning, and a judge’s findings of fact are
reviewed under the substantial-evidence standard.15
The Revised Guidelines set forth adjudicative guidelines to consider when evaluating a
person’s security clearance eligibility, including disqualifying conditions (DC) and mitigating
conditions (MC) for each guideline. In addition, each clearance decision must be a fair and impartial
commonsense decision based upon consideration of all the relevant and material information, the
pertinent criteria and adjudication factors, and the whole-person concept. A person granted access
to classified information enters into a special relationship with the government. The government
must be able to have a high degree of trust and confidence in those persons to whom it grants access
to classified information. The decision to deny a person a security clearance is not a determination
of an applicant’s loyalty.  Instead, it is a determination that the applicant has not met the strict16
guidelines the President has established for granting eligibility for a security clearance.
CONCLUSIONS
A. Applicant’s guilty plea and sentence to confinement and probation under Georgia’s first-
offender law is a conviction under 10 U.S.C. § 986. 
The government contends, as alleged in SOR subparagraph 2.b, that federal law disqualifies
Applicant from security-clearance eligibility. Applicant contends that his discharge under the
Georgia First Offender Act is not a conviction and that 28 U.S.C. § 1738 requires the federal
government to honor the state’s decision to treat the discharge as a non-conviction. The issue is
whether Applicant’s  guilty plea and sentence to confinement and probation under Georgia’s first-
offender law constitutes a conviction for purposes of 10 U.S.C. § 986, the so-called Smith
Amendment.  17
Several years ago, Congress enacted a law that prohibited the Defense Department from
granting or renewing a security clearance for certain persons falling into one or more of four
 10 U.S.C. § 986(c)(1) – (4) (2000).18
 10 U.S.C. § 986(c)(1) (2004). 19
 10 U.S.C. § 986(d) (2004).20
 DOHA Operating Instruction No. 64, Sept. 12, 2006. 21
 OI 64, ¶ 2.e. 22
 OI 64, ¶ 3.f. 23
 O.C.G.A. § 42-8-60 – 65. 24
 O.C.G.A. § 42-8-63.25
 State v. Wiley,  210 S.E.2nd 790, 791 (1974), on remand 213 S.E.2nd 15 (1975). 26
7
categories.  For a person with a criminal conviction, the current version of 10 U.S.C. § 986 prohibits18
that Defense Department from granting or renewing a security clearance if “the person has been
convicted in any court of the United States of a crime, was sentenced to imprisonment for a term
exceeding one year, and was incarcerated as a result of that sentence for not less than one year.”19
Accordingly, an applicant who has been sentenced to more than one year, but instead served
probation, or who served less than a year of incarceration, is now eligible for a security clearance.
The law also authorizes a waiver in a meritorious case if there are mitigating factors. A
waiver of the prohibition is permitted for two of the four types of cases covered by the Smith
Amendment: (1) where a person has been convicted and sentenced to imprisonment for more than
one year; and (2) where a person has been discharged or dismissed from the Armed Forces under
dishonorable conditions.  Within DOHA, waivers are governed by Operating Instruction (OI) 64.20 21
In summary, OI 64 implements the waiver authority granted to the Director of DOHA by the Under
Secretary of Defense (Intelligence). Also, OI 64 addresses an administrative judge’s responsibilities
in handling a case. First, a judge’s authority is limited to determining if the law applies to the facts
of the case.  Second, if it does apply, no waiver recommendation of any kind will be made.22 23
The plain language of 10 U.S.C. § 986 does not define the term conviction. And the DOHA
Appeal Board has not decided if a discharge under the Georgia First Offender Act is a conviction
under 10 U.S.C. § 986. Therefore, it is appropriate to look for guidance elsewhere. 
A sentence imposed under Georgia’s First Offender Act allows a first-time offender to be
placed on probation or sentenced to confinement or both and serve out that probation or confinement
without an adjudication of guilt.  Under Georgia law, Applicant’s discharge under the first-offender24
law is not a conviction because state law provides that a discharge under the act “is not a conviction
of a crime under the laws of this state. . . .”  Consistent with the statute, the Georgia Supreme Court25
has held that a probationary sentence under the first-offender law, if completed without violation,
is not a conviction.  Applicant argues that federal law requires that a state’s interpretation of its laws26
must be given full faith and credit, and therefore, he does not have a conviction for purposes of 10
U.S.C. § 986. 
 United States v. Miller, 434 F.3d 820 (6  Cir. 2006), cert. denied 547 U.S. 1086 (2006). 27 th
 ISCR Case No. 04-05712 (App. Bd. Oct. 31, 2006). 28
 Id., (citations omitted). 29
 ISCR Case No. 01-00407 (App. Bd. Sept. 18, 2002). 30
 Id. 31
 Id., citing Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983) (person is a convicted felon under32
federal firearms statute even though his state conviction was expunged); United States v. Lehman, 613 F.2d 130, 135
(5  Cir. 1980) (person  is a convicted felon under federal firearms statute even though there was no final conviction underth
state law).
 United States v. Garcia-Zamudio, 171 Fed.Appx 478 (5  Cir. 2006) (not selected for publication in the33 th
Federal Reporter) (defendant’s non-conviction under the Georgia First Offender Act for a drug-trafficking offense
constituted a conviction for sentencing enhancement purposes); Miller, 434 F.3d 820 (sentence of probation under
Georgia’s First Offender Act in a drug case was a prior conviction that had become final for purposes of mandatory
minimum); United States v. Knight, 154 Fed.Appx. 798 (11  Cir. 2005) (not selected for publication in the Federalth
Reporter) (defendant’s prior drug conviction under Georgia First Offender Act was a conviction for purposes of
sentencing guidelines criminal history category).
8
Under federal law (28 U.S.C. § 1738) and Article IV, § 1, of the U.S. Constitution, a state’s
interpretation of its laws must be given full faith and credit in every court within the United States.
In other words, the Georgia Supreme Court would have the ultimate say over the meaning of a
conviction under Georgia law. The full-faith-and-credit clause argument was made—in a dissenting
opinion—in a sentencing appeal where the Sixth Circuit concluded that a sentence of probation
under Georgia’s First Offender Act was a conviction that had become final for sentencing purposes.27
Likewise, although the case did not involve 10 U.S.C. § 986, the DOHA Appeal Board concluded
that 28 U.S.C. § 1738 does not require DOHA Judges to refer to state law when deciding if collateral
estoppel applies to state misdemeanor convictions.  The Appeal Board reasoned that although 2828
U.S.C. § 1738 applies to federal courts, it does not apply to federal executive branch agencies.  And29
the Appeal Board  noted practical reasons for not applying 28 U.S.C. § 1738 to a security-clearance
case. The rationale expressed in that opinion would seem to apply here. 
In cases involving 10 U.S.C. § 986, the DOHA Appeal Board has held: (1) what constitutes
a conviction under the statute is a question of federal law, not state law; and (2) a state pardon does
not negate applicability of the statute.  The Appeal Board reviewed the statute and concluded that30
because “nothing in the statute indicates Congress intended the DoD to be bound by state law
concerning what constitutes a conviction, Applicant’s reliance on details of state law is misplaced.”31
Also, the Appeal Board concluded that in determining whether a person is convicted, a key
consideration was the practical reality of whether a person has been convicted as opposed to the
particular labels describing a person’s status.  32
Recently in 2005 and 2006, the Fifth, Sixth, and Eleventh Circuits have concluded that a
deferred adjudication under Georgia’s first-offender law was a conviction for sentencing purposes.33
Likewise, a deferred adjudication is a conviction for immigration purposes so long as it satisfies the
 8 U.S.C. § 1101(a)(48)(A)(i) and  (ii) (two-part definition of conviction includes deferred adjudication of guilt34
as long as there has been a finding of guilt or a plea of guilty or nolo contendere and the court has imposed some form
of punishment, penalty, or restraint on the alien’s liberty). 
 Ali v. U.S. Attorney General, 443 F.3d 804, 809–810 (11  Cir. 2006).  35 th
9
requirements of the immigration statute dealing with convictions.  For example, in 2006 the34
Eleventh Circuit ruled in a case where an alien pleaded guilty in 1993—under Georgia’s first-
offender law—to two counts of child molestation and was sentenced to five years’ probation on each
count, to be served concurrently.  The court concluded that the alien’s guilty plea and sentence to35
probation constituted a conviction for purposes of immigration law even though it was not
accompanied by an actual adjudication of guilt.
Here, the facts are undisputed. First, Applicant was arrested and charged with two counts of
child molestation. Second, he entered a negotiated guilty plea to one count of cruelty to children.
Third, he was sentenced to two years of confinement followed by eight years of probation. Fourth,
he served approximately 20 months of confinement and then served probation until May 2007. Fifth,
his probation was terminated with his first-offender status in tact and he was discharged without an
adjudication of guilt. Given these facts, the practical reality is that Applicant pleaded guilty to a
felony and the state court imposed a sentence that resulted in substantial punishment (confinement
for 20 months) and restraint on his liberty (multi-year probation). It has all the markings of a
conviction, except an adjudication of guilt under the state’s statutory scheme for first-time offenders.
Nevertheless, federal caselaw addressing the Georgia First Offender Act establishes that
deferred adjudications are convictions for sentencing and immigration purposes. A similar
conclusion is warranted for a security-clearance case, which is a federal administrative proceeding
that is similar to immigration proceedings (legal proceedings without juries where the immigration
judge, like a DOHA administrative judge, makes both findings of fact and conclusions of law; also,
strict rules of evidence do not apply and hearsay is admissible). To conclude otherwise would
disregard the practical reality of Applicant’s case and elevate a label, based on state law, over the
undisputed facts.
For the reasons discussed above, Applicant’s guilty plea to one count of cruelty to children
and sentence to confinement and probation under Georgia’s First Offender Act is a conviction under
10 U.S.C. § 986 even though it was not accompanied by an actual adjudication of guilt. Specifically,
Applicant’s case falls within 10 U.S.C. § 986(c)(1) because the record evidence establishes that
Applicant was incarcerated for not less than one year. Accordingly, the Defense Department may not
grant (or renew) a security clearance for Applicant without a waiver.
B. Aside from the disqualifying conviction, Applicant mitigated the sexual behavior and
criminal conduct security concerns. 
Because the sexual behavior and criminal conduct allegations in the SOR are factually
interrelated, they are discussed together. The government contends that Applicant’s history of sexual
behavior of a criminal nature raises security concerns under Guidelines D and J. Applicant contends
that he has presented sufficient evidence of reform and rehabilitation to mitigate any security
concerns. The question is whether Applicant’s history of sexual behavior of a criminal nature with
 Revised Guidelines at 9 (setting forth the disqualifying and mitigating conditions). 36
 Revised Guidelines at 21–22 (setting forth the disqualifying and mitigating conditions). 37
 Guideline D DC 1 (“sexual behavior of a criminal nature, whether or not the individual has been prosecuted”);38
Guideline D DC 4 (“sexual behavior of a public nature and/or that reflects lack of discretion or judgment”); and
Guideline J DC 1 (“a single serious crime or multiple lesser offenses”). 
10
a 13-year-old girl is consistent with eligibility for access to classified information under the clearly-
consistent standard.  
Under Guideline D, sexual behavior is a security concern if it involves a criminal offense,
indicates a personality or emotional disorder, may subject the individual to coercion, exploitation,
or duress or reflects lack of judgment or discretion.  Under Guideline J, criminal conduct is a36
security concern because criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness. It calls into question a person’s ability or willingness to comply with laws, rules,
and regulations.  37
Here, based on the record evidence as a whole, security concerns are raised under Guidelines
D and J. The record evidence shows Applicant has a history of sexual behavior of a criminal nature.
His sexual activity with a 13-year-old girl was serious misconduct, as reflected by the initial charges,
the negotiated guilty plea, and the sentence. Also, his misconduct reflects a gross lack of good
judgment. When he engaged in this misconduct in late 1995, Applicant was 27 years old. As an
adult, he knew what he was doing was wrong, yet he allowed the activity to occur, not once, but
several times. His history of sexual behavior of a criminal nature raises security concerns under the
applicable DCs of the guidelines.  38
Several of the MCs under the guidelines apply in Applicant’s favor. The applicable MCs are
summarized and discussed below.
MC 2 under Guideline D—the sexual behavior happened so long ago, so infrequently, or
under such unusual circumstances that it is unlikely to recur—applies. Applicant engaged in the
sexual activity with the girl in 1995, about 12 years ago. After pleading guilty in 1998, he served
confinement and probation. He complied with the terms of his probation, he completed treatment
and counseling requirements, he has not engaged in further misconduct, he is gainfully employed
as an engineer, and he now has a wife and child. Given these circumstances, his misconduct is not
recent and all indications are that is unlikely to recur. 
MC 1 under Guideline J—so much time has elapsed since the criminal behavior happened,
or it happened under such circumstances that it is unlikely to recur—is similar to MC 2 under
Guideline D. It applies using the same rationale. Given the passage of time and current
circumstances, his criminal conduct is not recent and it no longer casts doubt on his current
reliability, trustworthiness, or good judgment. 
MC 4 under Guideline J—there is clear evidence of successful rehabilitation—applies based
on the following: (1) his expression of remorse; (2) the passage of time since his release from
confinement without recurrence of any  misconduct; (3) his favorable employment record; (4) his
stable family life as a husband and father; (5) his early termination of probation; and (6) his
11
discharge under the state’s first-offender law without an adjudication of guilt. Indeed, it appears that
Applicant is a success story in the Georgia criminal-justice system. Taken together, these
circumstances are evidence of reform and rehabilitation. 
The same circumstances have been considered under the whole-person concept. His track
record as husband and father, a successful engineer, and a law-abiding citizen for the last several
years are persuasive evidence that the likelihood of additional misconduct is low. His demonstrated
ability to lead a responsible and productive life for a significant period after his release from
confinement in 2000 is evidence of reform and rehabilitation. This is a key factor, and it deserves
substantial weight. And it should be noted that Applicant’s misconduct might have never come to
light but for his self-reporting during the pre-employment polygraph examination. 
Viewing the record evidence as a whole, Applicant presented sufficient evidence to explain,
extenuate, or mitigate the sexual behavior and criminal conduct security concerns alleged in SOR
subparagraphs 1.a, 1.b, and 2.a. Based on his conviction and serving 20 months of confinement,
however, he is disqualified from having a security clearance granted (or renewed) by the Defense
Department under 10 U.S.C. § 986(c)(1). Accordingly, this case is decided against Applicant based
solely on the Smith Amendment. 
FORMAL FINDINGS
SOR ¶ 1–Guideline D: For Applicant
Subparagraphs a–b: For Applicant
SOR ¶ 2–Guideline J: Against Applicant
Subparagraph a: For Applicant
Subparagraph b: Against Applicant
DECISION
In light of all the circumstances, it is not clearly consistent with the national interest to grant
or continue a security clearance for Applicant. Eligibility for a security clearance is denied solely as
a result of 10 U.S.C. § 986(c)(1). 
Michael H. Leonard
Administrative Judge