KEYWORD: Guideline E, Guideline D; Guideline J
DIGEST: The Judge found: In 2006, Applicant was removed from a project and his employment
was terminated following an investigation by the Navy which determined that Applicant had
committed Sexual Battery on a fellow employee.  Applicant testified that he had lied about the
incident to a Naval investigator, and executed a false statement because he was afraid that he
would lose his job and his coworkers would think he was a homosexual.  He did not admit to the
incident until he was in the process of undergoing a polygraph examination.  Adverse decision
affirmed.
CASENO: 07-12896.a1
DATE: 06/25/2008
DATE: June 25, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-12896
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esq.
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 18, 2007, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline E (Personal Conduct),
Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct) of Department of Defense
Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On March
20, 2008, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for
a security clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s failure to mitigate the
Guideline E, D and J security concerns is arbitrary, capricious, or contrary to law.  Finding no error,
we affirm.
The Judge made the following sustainable findings: In 2006, Applicant was removed from
an assigned project and his employment was terminated following an investigation by the U.S.
Department of the Navy which determined that Applicant had committed Sexual Battery on a fellow
employee.  Applicant testified that he had lied about the incident to a Naval investigator, and
executed a false statement to that effect, because he was afraid that he would lose his job and his
coworkers would think he was a homosexual.  He did not admit to the incident until he was in the
process of undergoing a polygraph examination.
Applicant completed a Security Clearance Application (SCA) in September 2006.  Question
22 of the application asked whether during the last seven years, Applicant had ever been terminated
from a job, or lost his job under other than favorable circumstances.  Applicant replied “No” to that
question.  Applicant later submitted a second version of the SCA, in which he corrected his answer
to question 22, to show that he had lost his job under less than favorable conditions.  However, he
did not attempt to make that correction until after he had revealed the truth about the incident during
the polygraph examination process.  Decision at 2-3.
 The Board has examined the Judge’s decision in light of the record as a whole and concludes
that the Judge has drawn ‘a rational connection between the facts found’ under Guidelines E, D and
J and his adverse decision.  Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168 (1962)).  “The general standard is that a clearance may be granted only when ‘clearly consistent
with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528
(1988).  Accordingly, the Judge’s adverse decision is not arbitrary, capricious, or contrary to law.
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Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jean E. Smallin       
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields     
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody          
James E. Moody
Administrative Judge
Member, Appeal Board