1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 07-09301
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Eric H. Borgstrom, Esquire, Department Counsel
For Applicant: Pro Se
                             
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the case file, pleadings, exhibits, and testimony,  I
conclude that Applicant’s eligibility for access to classified information must be denied.
Applicant submitted his Security Clearance Application (SF 86), on March 16,
2006. On December 17, 2007, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
D, E and J for Applicant. 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. 
 
Item 2 (Applicant’s response to the SOR, dated January 15, 2006) at 1-3; Item 3 (Applicant’s Security1
Clearance Application). 
Item 3, supra note 1, at 6,12-13, 21.2
Id. at 11-12, 17-19; Item 4 (Applicant’s Security Clearance Application, dated July 3, 2002) at 5.3
Item 6 (Applicant’s signed, sworn statement, dated May 17, 2007) at 5; Item 8 (National Security4
Administration documents, January 2005) at 3.
2
Applicant acknowledged receipt of the SOR on December 27, 2007. He
submitted a notarized, written response to the SOR allegations on January 15, 2008,
and requested a decision on the written record in lieu of a hearing. 
Department Counsel prepared a File of Relevant Material (FORM) and mailed
Applicant with a complete copy on March 6, 2008. Applicant received the FORM on
March 12, 2008. He had 30 days from receipt of the FORM to file objections and submit
material in refutation, extenuation, or mitigation. He submitted a written response, but
no additional evidence, dated April 4, 2008. DOHA assigned this case to me on May 9,
2008. The government submitted nine exhibits, which have been marked as Items 1-9
and admitted into the record.
Findings of Fact
In his Answer to the SOR, dated January 15, 2008, Applicant admitted the
allegations in ¶¶ 1.a-1.f, and 2.a-2.e of the SOR, with explanations. He denied the
intentional falsification in ¶ 1.g and denied ¶ 3.a of the SOR. He completed his most
recent security clearance application on March 16, 2006.   1
Applicant is a 37-year-old senior information security engineer. He works for a
Department of Defense contractor, a position he has held for over three years. He
enlisted in the United States Navy in 1989 and received an honorable discharge in
2001.2
Applicant married in 1992 and divorced in 2005. He and his wife had no children,
but she had two daughters from a previous marriage. His step-daughters are 28 and 25.
He graduated from college in 2001 with a Bachelor of Science degree.3
While in the Navy and on overseas assignment in 1990 and 1991, Applicant
sought sexual contact with Asian locals when his ship was in port. He paid foreign
prostitutes for services, including fellatio, but does not remember if the activities took
place in public or private. He has not hired prostitutes since 1991.4
In 1999, in a store parking lot, his wife aroused him then left the car. He also left
the car and walked to a nearby park where he masturbated, in what he described as a
secluded area. That same year, he and a friend went to a strip club. During the evening,
his friend paid a woman employee for a lap dance. At the end of the evening, the
Item 6, supra note 4, at 4; Item 8, supra note 4, at 2.  5
Item 3, supra note 1, at 14-15; Item 6, supra note 4, at 1-3; Item 9 ( NSA documents - police report of6
incident) at 4-5, 11-12.
Item 6, supra note 4, at 4-5; Item 9, supra note 6, at 14-15.7
Item 7 (Letter, dated March 2, 2006); Item 8, supra note 4.8
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woman followed them to the car, requesting additional sexual activity. He rejected her
request for additional sexual activity, but at her request, masturbated in the parking lot
for her. In 2002, while in his vehicle in a non-populated location of a public parking area,
Applicant and his wife engaged in sexually stimulating conduct with each other. No one
observed them. Applicant voluntarily acknowledged these three incidents.5
Applicant started work with the National Security Agency (NSA) in a temporary
position in October 2002. On the morning of June 14, 2004, Applicant engaged in a
telephone conversation with a woman with whom he had developed a friendly
relationship over the internet. The content of the conversation became sexual and he
began to masturbate in his car. He had parked his car in the NSA employee parking lot.
A woman observed him and told NSA security, who investigated. NSA security officers
also observed Applicant’s conduct. They informed him that his conduct violated state
law, but did not arrest him. The next day, June 15, 2004, he spoke with a NSA security
investigator. He told the investigator that he was speaking with his wife on the telephone
while in his car. He signed a written and sworn statement to this effect on the same
day.6
The next day, June 16, 2004, Applicant contacted the investigator and advised
that he had not been truthful the day before and admitted that he was talking on the
telephone with a woman other than his wife. On this day, he signed a sworn statement
acknowledging that he intentionally and deliberately falsified the statement given the
previous day.  NSA required him to be evaluated by a psychiatrist. The psychiatrist
rendered an opinion, which is not of record.7
On August 30, 2004, Applicant met with NSA Human Resources staff. He
resigned his position after being offered a choice of resigning or being fired. He believed
that if he resigned, his security clearance remained in effect, but has since learned his
belief was incorrect. Three months later, in November 2004, another contractor
sponsored Applicant for a NSA Sensitive Compartmented Information (SCI) clearance.
NSA issued a clearance decision, dated  January 15, 2005, denying Applicant’s request
for a SCI security clearance because of the above sexual conduct and his falsification.
Relying on this decision, the Defense Security Service denied him a security clearance
on March 2, 2006.8
Applicant completed his security clearance application (SF 86) on March 17
2006. He answered “no” to the following question:
Item 2, supra note 1, at 3; Item 3, supra note 1, at 12-17, 23-24, 27-27.9
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Section 22: Your Employment Record
Answer the following question.
Has any of the following happened to you in the last seven years?
1. Fired from a job.
2. Quit a job after being told you’d be fired.
3. Left a job by mutual agreement following allegations of
misconduct.
4. Left a job by mutual agreement following allegations of
unsatisfactory performance.
5. Left a job for other reasons under unfavorable circumstances.
Yes: (   )   No: (    )
Although Applicant left NSA 18 months earlier after being asked to resign, he
answered “no” to this question. In his response, he denies deliberately falsifying his
answers.  He states that he did not read the question carefully. Rather, because he was
being pressured by his office to hurry, he read part one and then answered the
question. In completing his questionnaire, Applicant provided detailed answers to other
questions, particularly those questions related to his finances.9
 
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
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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
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.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an
individual's reliability, trustworthiness and ability to protect classified information. Of
special interest is any failure to provide truthful and candid answers during the security
clearance process or any other failure to cooperate with the security clearance process.
The following conduct will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance eligibility:
(b) refusal to provide full, frank and truthful answers to lawful questions of
investigators, security officials, or other official representatives in
connection with a personnel security or trustworthiness determination.
The remaining disqualifying conditions, AG ¶¶ 16(c), 16(f), and16(g) are not raised in this case.10
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Applicant provided false information to the NSA investigators on June 15, 2004
when questioned about his conduct in the parking lot on June 14, 2004. Unless he has
mitigated this conduct, his clearance would be denied.
AG ¶ 16 describes conditions that could raise a security concern and the
following conditions may be disqualifying in this case:
(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or
similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities;
(b) deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent
medical authority, or other official government representative;
(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, and
(3) a pattern of dishonesty or rule violations.
(e) personal conduct, or concealment of information about one's conduct,
that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person's
personal, professional, or community standing.10
The government established that Applicant omitted material facts from his SF-86
when he answered “no” to Question 22 about his employment record. This information
is material to the evaluation of Applicant’s trustworthiness to hold a security clearance
and to his honesty. For this guideline to apply, Applicant’s omission must be deliberate.
He denies, however, that he deliberately falsified his answer to this question. When a
falsification allegation is controverted, the government has the burden of proving it.
See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-2313311
at 5 (App. Bd. Jun. 9, 2004)).
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Proof of an omission, standing alone, does not establish or prove an applicant’s intent
or state of mind when the omission occurred. An administrative judge must consider the
record evidence as a whole to determine whether there is direct or circumstantial
evidence concerning an applicant’s intent or state of mind at the time the omission
occurred.  For DC ¶ 16 (a) to apply, the government must establish that Applicant’s11
omission, concealment or falsification in his answer was deliberate.
Applicant knew that he had been asked to resign from his NSA job and that he
resigned under pressure. His statement that he did not read the question fully is not
credible because the question format forces him to review all the criteria he should
consider when answering the question. In addition, Applicant, as an engineer, is a
person who is trained in detail work as shown by the detailed answers to other
questions. His answers to other questions indicate he took his time to make sure he
provided the information requested. The government has established its case as to
allegation 1.g.
Concerning his sexual conduct, the record shows a pattern of conduct in public
places. While Applicant has not been arrested for his conduct and states he is discreet,
his decision to perform sexual acts in public places raises concerns about his judgment,
lack of candor, and unwillingness to follow the public rules on such conduct. Applicant’s
conduct and his failure to be forthright about it makes him vulnerable to exploitation,
pressure or coercion. DC ¶¶ 16 (d)(1), (d)(3), and (e)(1) apply.
I have considered the mitigating conditions under AG ¶ 17 which provides that
the following conditions could mitigate the government’s security concerns:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was
caused or significantly contributed to by improper or inadequate advice of
authorized personnel or legal counsel advising or instructing the individual
specifically concerning the security clearance process. Upon being made
aware of the requirement to cooperate or provide the information, the
individual cooperated fully and truthfully.
(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;
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
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stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable
reliability; and,
(g) association with persons involved in criminal activity has ceased or
occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules
and regulations.
Applicant voluntarily reported his false statement to the NSA investigator one day
later. By so doing, he made a good faith effort to report his conduct prior to being
confronted with the information. He has mitigated the government’s concerns about his
conduct alleged in SOR ¶¶ 1.b and 1.c. However, none of the remaining SOR
allegations and related security concerns are mitigated. 
Guideline D, Sexual Behavior
AG ¶ 12 expresses the security concern under this guideline as:
Sexual behavior that involves a criminal offense, indicates a personality or
emotional disorder, reflects lack of judgment or discretion, or which may
subject the individual to undue influence or coercion, exploitation, or
duress can raise questions about an individual's reliability, trustworthiness
and ability to protect classified information. No adverse inference
concerning the standards in this Guideline may be raised solely on the
basis of the sexual orientation of the individual.
AG ¶ 13 describes conditions that could raise a security concern and may be
disqualifying:
(a) sexual behavior of a criminal nature, whether or not the individual has
been prosecuted;
(b) a pattern of compulsive, self-destructive, or high risk sexual behavior
that the person is unable to stop or that may be symptomatic of a
personality disorder;
(c) sexual behavior that causes an individual to be vulnerable to coercion,
exploitation, or duress; and,
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(d) sexual behavior of a public nature and/or that reflects lack of discretion
or judgment.
Appellant acknowledges that years ago he paid for prostitutes while overseas.
He also acknowledges several incidents of masturbating in public, sexual conduct which
shows a lack of judgment. AG ¶¶ 13 (a), (c), and (d) apply.
AG ¶ 14 provides conditions that could mitigate security concerns:
(a) the behavior occurred prior to or during adolescence and there is no
evidence of subsequent conduct of a similar nature;
(b) the sexual behavior happened so long ago, so infrequently, or under
such unusual circumstances, that it is unlikely to recur and does not cast
doubt on the individual's current reliability, trustworthiness, or good
judgment; 
(c) the behavior no longer serves as a basis for coercion, exploitation, or
duress; and, 
(d) the sexual behavior is strictly private, consensual, and discreet.
Applicant’s conduct in 1990 and 1991 while serving in the Navy overseas
occurred many years ago and has not occurred since. Thus, AG ¶ 14 (b) applies to
allegation 2.b of the SOR. Concerning Applicant’s more recent masturbation conduct,
he has not mitigated the government’s concerns. His actions reflect a pattern of public
conduct over a period of time. His decisions to satisfy his sexual needs in public places
reflect poor judgment and can serve as a basis for coercion or exploitation. He has not
mitigated the government’s security concerns under Guideline D.
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining to criminal conduct, “Criminal
activity creates doubt about a person's judgment, reliability, and trustworthiness. By its
very nature, it calls into question a person's ability or willingness to comply with laws,
rules and regulations.”
Under AG ¶ 31, the following disqualifying condition could raise a security
concern in this case:
c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted. 
Applicant lied on his SF-86, which is a crime under 18 U.S.C. ¶ 1001. Thus, the
government has established its case under this guideline. I have considered the
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applicable mitigating conditions under AG ¶ 32 and conclude that none of them apply.
Applicant has not mitigated the government’s concerns.
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’s sexual conduct problems
first began when he was a young man in the Navy. (See AG & 2(a)(4).) Although he no
longer solicits prostitutes, he continues to occasionally satisfy his sexual desires in
public places, which shows a serious lack of judgment. He has presented no evidence
that he has changed his behavior, that he understands the negative implications of this
conduct. As he ages, he has shown no improvement in his judgment about his conduct.
In addition, he deliberately failed to acknowledge that NSA asked him to resign his
position or be fired. Applicant’s recent decisions indicate very poor judgment. These
decisions have a potential for pressure, coercion, exploitation, or duress and could
occur again. His conduct raises significant security concerns
Overall, the record evidence leaves me with questions or 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 financial
considerations. 
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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: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
Subparagraph 1.f: Against Applicant
Subparagraph 1.g: Against Applicant
Paragraph 2, Guideline D: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: For Applicant
Subparagraph 2.c: Against Applicant
Subparagraph 2.d: Against Applicant
Subparagraph 2.e: Against Applicant
Paragraph 3, Guideline J: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                                              
MARY E. HENRY
Administrative Judge