DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 ------------------------- )  ISCR Case No. 06-22273 
 SSN: ----------------- ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Ray T. Blank Jr., Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, Thomas M., Administrative Judge: 
 
Applicant submitted his Security Clearance Application (SF 86), on February 27, 
2004. On January 27, 2007, the Defense Office of Hearings and Appeals (DOHA) 
issued a Statement of Reasons (SOR) detailing a security concern for Appellant based 
on personal conduct under Guideline E. The action was taken under Executive Order 
10865, Safeguarding Classified Information within Industry (February 20, 1960), as 
amended; Department of Defense Directive 5220.6, Defense Industrial Personnel 
Security Clearance Review Program (January 2, 1992), as amended (Directive), and the 
revised adjudicative guidelines (AG) promulgated by the President on December 29, 
2005, and effective within the Department of Defense for SORs issued after September 
1, 2006.  
  
 Applicant acknowledged receipt of the SOR on February 1, 2007. He answered 
the SOR in writing on February 9, 2007.  He admitted both allegations under Guideline 
E with explanation.  He elected to have the matter decided on the written record in lieu 
of a hearing.  Department counsel submitted the Government’s written case on July 9, 
2007.  Applicant received a complete file of relevant material (FORM) on July 17, 2007, 
 
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and was provided the opportunity to file objections, and submit material to refute, 
extenuate, or mitigate the disqualifying conditions.  Applicant responded to the FORM 
on August 11, 2007.  
 
An Administrative Judge issued an unfavorable security decision on August 31, 
2007.  Appellant appealed that decision noting that the date on the SOR was incorrect 
and the date should have been January 27, 2007 and not January 27, 2006.  if the 
actual date of the SOR was in 2007, the new adjudicative guidelines were in effect and 
the decision should have been rendered using the new guidelines.  The DOHA Appeal 
Board remanded the case to the Administrative Judge for a determination when the 
SOR was written and a decision based on the correct guidelines.  Since that 
Administrative Judge is no longer assigned to DOHA, the case was assigned to me on 
January 17, 2008. 
 
I ordered Department Counsel to present an affidavit from the official who signed 
the SOR concerning the correct date of the SOR, and provide additional argument if 
appropriate.  The individual that signed the SOR provided an affidavit that the 2006 date 
was in error and the SOR was in fact issued on January 27, 2007.  Department Counsel 
served Applicant with a copy of the affidavit and Department Counsel’s Reply to the 
Order on February 5, 2008.  Applicant was provided an opportunity to comment and 
provide additional information.  Applicant received the Department Counsel’s reply to 
the Order and Affidavit of the SOR signer on February 23, 2008.  As of March 24, 2008, 
Applicant has not provided additional information.  Based on a review of the case file, 
pleadings, and exhibits, eligibility for access to classified information is denied. 
 
Findings of Fact 
 
 Applicant admitted the two factual allegations under Guideline E of the SOR, with 
explanations. (Item 2)  I thoroughly reviewed the case file, record, and exhibits and 
make the following findings of fact. 
 
Applicant is a 45-year-old high school graduate who has worked for a defense 
contractor as a supply technician since 2004.  He previously served over 22 years on 
active duty with the Army in the area of supply.  He held a security clearance while on 
active duty.  He has been married since 1984, and has three children. (Items 4 and 5, 
Security clearance applications) 
 
Applicant, while on active duty with the Army, received non-judicial punishment 
for adultery in April 1992.  A fellow soldier complained that Applicant was having 
consensual sexual intercourse with the soldier’s wife.  The woman admitted the sexual 
intercourse which took place over a two month period from November 1991 to January 
1992.  Applicant was reduced in grade and required to forfeit pay. (Item 8, 
Commander’s report of disciplinary action, dated April 13, 1992) 
 
Applicant again received non-judicial punishment, while on active duty in the 
Army, for sodomy and making a false official statement in October 2003.  While 
 
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stationed in Honduras, Applicant assisted an intoxicated female soldier to her room.  He 
performed cunnilingus on her even though she claims she asked Applicant to stop.  
Applicant claimed the sexual act was consensual.  The false official statement was 
based on Applicant’s statement that the act was consensual.  Applicant received a letter 
of reprimand, was restricted to his base, and forfeited two-thirds of his pay for two 
months.  Applicant included this offense on his security clearance application. (Item 6, 
Federal Bureau of Investigation Criminal Justice Report; Item 8, Record of Proceeding 
under Article 15, UCMJ, dated October 14, 2003, and Report of Investigation, dated 
October 7, 2003) 
 
Policies 
 
 When evaluating an Applicant’s suitability for a security clearance, the 
Administrative Judge must consider the revised adjudicative guidelines (AG). In addition 
to brief introductory explanations for each guideline, the adjudicative guidelines list 
potentially disqualifying conditions and mitigating conditions, which are useful in 
evaluating an Applicant’s eligibility for access to classified information. 
 
These guidelines are not inflexible rules of law. Instead, recognizing the 
complexities of human behavior, these guidelines are applied in conjunction with the 
factors listed in the adjudicative process. The Administrative Judge’s over-arching 
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 
2(c), the entire process is a conscientious scrutiny of a number of variables known as 
the “whole person concept.” The Administrative Judge must consider all available, 
reliable information about the person, past and present, favorable and unfavorable, in 
making a decision. 
 
The protection of the national security is the paramount consideration. AG ¶ 2(b) 
requires that “[a]ny doubt concerning personnel being considered for access to 
classified information will be resolved in favor of national security.” In reaching this 
decision, I have drawn only those conclusions that are reasonable, logical and based on 
the evidence contained in the record. Likewise, I have avoided drawing inferences 
grounded on mere speculation or conjecture. 
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is 
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, 
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The 
Applicant has the ultimate burden of persuasion as to obtaining a favorable security 
decision.  
 
A person who seeks access to classified information enters into a fiduciary 
relationship with the Government predicated upon trust and confidence. This 
relationship transcends normal duty hours and endures throughout off-duty hours. The 
Government reposes a high degree of trust and confidence in individuals to whom it 
grants access to classified information. Decisions include, by necessity, consideration of 
 
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the possible risk the Applicant may deliberately or inadvertently fail to protect or 
safeguard classified information. Such decisions entail a certain degree of legally 
permissible extrapolation as to potential, rather than actual, risk of compromise of 
classified information. 
 
Analysis 
 
Personal Conduct 
 
 A security concern is raised because conduct involving questionable judgment, 
untrustworthiness, unreliability, or unwillingness to comply with rules and regulations 
can raise questions about an individual’s reliability, trustworthiness, and ability to protect 
classified information.  Applicant’s conduct consisting of extra marital sexual acts and 
lying about one of them raise security concerns.  Personal Conduct Disqualifying 
Conditions AG ¶ 16(d) (credible adverse information that is not explicitly covered under 
any other guideline and may not be sufficient by itself for an adverse determination, but 
which, when combined with all available information supports a whole-person 
assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, 
unwillingness to comply with rules and regulations, or other characteristics indicating 
that the person may not properly safeguard protected information.  This includes but is 
not limited to consideration of:  (1) untrustworthy or unreliable behavior to include 
breach of client confidentiality, release of proprietary information, unauthorized release 
of sensitive corporate or other government protected information; (2) disruptive, violent, 
or other inappropriate behavior in the workplace; (3) a pattern of dishonesty or rules 
violations: (4) evidence of significant misuse of Government or the employer’s time or 
resources); and AG ¶ 16(e) (personal conduct, or concealment of information about 
one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, . . .) 
apply.  The records of non-judicial punishment are credible adverse information and are 
admitted by Applicant.  His actions, particularly the false official statement, raise issues 
of questionable judgment, untrustworthiness, unreliability, and unwillingness to comply 
with rules and regulations.  These characteristics show the individual may not protect 
classified information.   
 
 I have considered Personal Conduct Mitigating Conditions AG ¶ 17(c) (the 
offense is so minor, or so much time has passed, or the behavior is so infrequent, or it 
happened under such unique circumstances that it is unlikely to recur and does not cast 
doubt on the individual’s reliability, trustworthiness, or good judgment); AG ¶ 17(d) (the 
individual has acknowledged the behavior and obtained counseling to change the 
behavior or taken other positive steps to alleviate the stressors, circumstances, or 
factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such 
behavior is unlikely to recur); AG ¶ 17(e) (the individual has taken positive steps to 
reduce or eliminate vulnerability to exploitation, manipulation, or duress); and AG ¶ 17(f) 
(the information was unsubstantiated or from a source of questionable reliability).  I 
determine that none of these mitigating conditions apply.  The actions are substantiated 
by records of the non-judicial punishments and Applicant’s admissions.  Adultery, false 
official statement and sodomy are not minor offenses, but serious offenses against law 
 
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and military discipline.  Even though the adultery happened 16 year ago, the false 
official statement and sodomy happened within the last five years showing a pattern of 
inappropriate conduct of sexual activity and a false statement.  Applicant’s adultery was 
a falsification to his wife and his statements the sodomy was consensual was false.  
They cast doubt on his reliability and trustworthiness.  Applicant acknowledges his 
actions but does not appear to acknowledge the behavior was wrong.  Applicant has not 
shown that he sought counseling for his actions or changed his behavior.  I find against 
Applicant as to Personal Conduct.   
 
Whole Person Concept 
 
 Under the whole person concept, the Administrative Judge must evaluate an 
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s 
conduct and all the circumstances. The Administrative Judge should consider the nine 
adjudicative process factors listed at AG ¶ 2(a): “(1) the nature, extent, and seriousness 
of the conduct; (2) the circumstances surrounding the conduct, to include 
knowledgeable participation; (3) the frequency and recency of the conduct; (4) the 
individual’s age and maturity at the time of the conduct; (5) extent to which participation 
is voluntary; (6) the presence or absence of rehabilitation and other permanent 
behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, 
coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.” 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security 
clearance must be an overall common sense judgment based upon careful 
consideration of the guidelines and the whole person concept.        
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case.  Applicant was involved in extra-
marital sexual activity.  He lied about one of the actions being consensual placing the 
blame on the other person.  He has shown that he will not follow rules and regulations 
and that he will lie about events for his own benefit.  Overall, the record evidence leaves 
me with questions and doubts as to Applicant’s eligibility and suitability for a security 
clearance. For all these reasons, I conclude Applicant has not mitigated the security 
concerns arising from his personal conduct.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by section E3.1.25 of Enclosure 3 of the Directive, are: 
 
 Paragraph 1, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 1.a:    Against Applicant 
  Subparagraph 1.b:    Against Applicant 
 
 
 
 
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Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge