KEYWORD: Guideline J; Guideline E
DIGEST: The Judge found that Applicant was convicted after an Alford plea of third degree
assault.  The conviction and the other record evidence (including Applicant’s daughter’s
description of his touching her) precluded the Judge from concluding that Applicant did not
commit the offense.  The Judge’s analysis of Guideline Mitigating Conditions does not follow
logically from the record evidence.  Favorable decision reversed.
CASENO: 07-03307.a1
DATE: 09/26/2008
DATE: September 26, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-03307
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Candace L. Le’i, Esq., Department Counsel
FOR APPLICANT
Pro Se
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On December 20, 2007, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On May 30, 2008, after the hearing,
Administrative Judge Mary E. Henry 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 raised the following issues on appeal: whether the Judge erred in
concluding that the Government had not met its burden of production under two of the Guideline E
allegations; whether the Judge’s application of the Guidelines E and J mitigating conditions was
unsupported by record evidence; and whether the Judge’s whole-person analysis was unsupported
by record evidence.  Finding error, we reverse.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following findings of fact:  Applicant is an electronics laboratory
technician for a Defense contractor.  He is a veteran of the U.S. Marine Corps.  He married his first
wife in 1986, divorcing her 18 months later.  They have a daughter from the marriage (Daughter),
of whom the wife was awarded custody in the divorce settlement.  Applicant is currently married to
his second wife, with whom he has two children.
In 1986 Applicant was arrested and charged with DUI.  In November 1998, Daughter was
visiting Applicant at his home.  Applicant denied Daughter’s request for a friend to visit her, which
Applicant believed upset Daughter.  Applicant stated that Daughter and his previous wife did not get
along with his current wife.  Applicant’s memory of the events is “not completely clear.”  Decision
at 3.   However, shortly after her visit with Applicant, Daughter “called Applicant and told him she
knew what he had done-that he touched her in the wrong places.  He denied any wrongdoing and told
her he was sorry she was upset.  The police report indicates that [Daughter] told the police about this
alleged conduct and that Applicant also improperly touched his other daughter at the same time.  It
also shows that, at around 1:30 a.m., with the police on the telephone line, [Daughter] called
Applicant . . . The report states that Applicant denied improperly touching his younger daughter and
that he admitted his conduct with [Daughter].  Applicant, however, denies that this conduct occurred
with [Daughter].”  Id.  
The police arrested Applicant on November 16, 1998, charging him with sexual assault on
a child by a person in a position of trust, a felony.  Following a Miranda warning, Applicant was
questioned by the police.  After being informed that he had failed a polygraph examination,
North Carolina v. Alford, 400 U.S. 25 (1970).  1
3
Applicant acknowledged that he committed the conduct with Daughter.  For six months or more
Applicant lived with his parents.  The State Department of Social Services convened a panel, which
concluded that Applicant could not return to live with his wife and their two children.  Consistent
with State law, Applicant requested a jury trial on this matter and was permitted to return to his
home.
Subsequent to that, Applicant entered an Alford  plea to third degree assault.  Applicant did1
not want to put his family through another trial and he had exhausted his financial resources.  If he
litigated the case and were found guilty, Applicant could have been sentenced to ten years in jail.
Following Applicant’ plea, the court sentenced him to two years probation and a fine.  He was
ordered to undergo a psychological examination.  In addition, the court issued a permanent
restraining order requiring him to stay away from Daughter.  He has had no contact with his daughter
or ex-wife since November 1998.
When completing his security clearance application (SCA), Applicant checked “not
applicable” in reply to the question inquiring about whether he had a former spouse.  When
answering the question about his other relatives, he listed his parents and siblings but he did not list
any of his children, including Daughter.  To the question as to whether he had ever been charged
with or convicted of a felony, he answered “no.”   These answers were not factually correct.
Applicant did not list his first marriage because “it was a long time ago, his first wife is not a part
of his life and he is trying to put his contacts with her behind him.”   He did not list the arrest for
sexual assault on Daughter because he believed he only had to list offenses less than seven years old.
“In explaining his reason for not listing his former wife and oldest daughter, he said ‘[he] did not
consider those two people part of my life anymore.’” Id. at 5.   Applicant stated that he did not take
the security clearance process seriously and was not thorough when completing his SCA.
Applicant’s wife and family are aware of his arrest and the circumstances surrounding it.  His
boss is also aware of his arrest and plea.  
B.  Discussion
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the same record.”
Directive  ¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”  Consolo v. Federal Maritime
Comm’n, 383 U.S. 607, 620 (1966).  In evaluating the Judge’s findings, we are required to give
deference to the Judge’s credibility determinations.  Directive ¶ E3.1.32.1. 
4
The Board will address whether the Judge’s decision is supported by substantial record
evidence in the course of the discussion below. 
Whether the Record Supports the Judge’s Ultimate Conclusions
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choice made.’”
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).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presentsth
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors does not turn simply on a finding that one or more of them apply to the
particular facts of a case.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
Whether the Judge erred in her conclusion that the Government had not met its burden of
production under two of the Guideline E allegations.
The SOR contains three allegations under Guideline E.  The first is that Applicant falsified
his SCA by omitting his former spouse.  The second is that he falsified the SCA by omitting
Daughter.  The third is that he falsified the SCA by omitting his felony arrest for sexual assault on
Daughter.  The Judge concluded that the Government had satisfied its burden with regard to the
former spouse.  The Judge stated, “[Applicant] acknowledged that he realized that he thought about
In Government Exhibit (GE) 2, Subject Interview, dated December 2006, Applicant offered a different set of2
explanations for his omissions.  
5
his first wife, but decided that the information was not necessary.  His decision not to acknowledge
his first marriage was deliberate.”  Decision at 9.  This conclusion is sustainable.
However, the Judge concluded that Applicant’s failure to list Daughter was not deliberate,
on the ground that he failed to name any of his children through a simple mistake.  See Tr. at 47.  (“I
don’t understand how I missed that, Your Honor.  I really don’t.  There’s no reason I would
deliberately leave my current children off.”)  The Judge does not explain why she finds this to be a
credible explanation for the omission, given the fact that the SCA explicitly requires an applicant
to name any and all children he or she may have.  Be that as it may, the Judge’s conclusion that
Applicant did not deliberately omit Daughter’s name is not even consistent with her own finding that
he omitted both his former wife and Daughter for the same reason.  That reason is that they were a
part of his life that he wished to put behind him.  The Judge’s finding is consistent with a portion of
the record evidence.  “Judge: Is there a reason you would leave [Daughter] out?  Witness: Yes, Your
Honor.  Judge: Why would you leave her out?  Witness: Same reason.  It’s sad to say, but I disowned
her after this incident and did not consider those two people part of my life anymore.”  Tr. at 47.
“Department Counsel: . . . [I]t occurred to you to list your daughter and your wife, but you chose not
to.  A: Right.  I believe that’s correct.”  Tr. at 50.   In evaluating whether the Government has2
presented substantial evidence regarding the deliberate nature of a false statement or an omission,
the Judge must examine the statement or omission in light of the record as a whole. When an
applicant claims that a false answer to a SCA question is not deliberate, the Judge should address
explicitly any contrary evidence in the record.  In this case Applicant’s desire to relegate to the past
two people who had accused him of sexual assault is, in and of itself, not surprising.  However,
insofar as that is a reason to believe that his omission of the former wife was deliberate, it is, a
fortiari, a reason to believe the same thing about Daughter.  The Judge’s decision does not provide
a rational basis for distinguishing between these omissions.  The Judge’s conclusion that the
Government had not presented substantial evidence regarding the deliberate nature of Applicant’s
omission of Daughter’s name is arbitrary, capricious, and contrary to law.
The Judge also concluded that the Government had not met its burden of production as to
the deliberate nature of Applicant’s omission of his felony arrest for sexual assault on Daughter.
Department Counsel’s argument that this conclusion is unsupported by record evidence is
persuasive.  Applicant stated that he believed the question asked only for convictions during the prior
seven years.  Applicant’s explanation that he answered hurriedly and without reading the question
closely, while testimony the Judge had to consider, should have been balanced against other matters
in the record which point to a deliberate omission.  The Judge reproduced this question verbatim in
her findings of fact: “Have you ever been charged with or convicted of any felony offense?”  The
question is clear and unambiguous, containing no time limitation.  Given the fact that all three
factual omissions at issue in this case relate to Applicant’s prior conviction arising from an allegation
of sexual assault on his biological daughter, a reasonable person could infer that Applicant was
omitting from his SCA any facts that would lead to discovery of that misconduct.  His testimony that
Applicant testified as to advice he had received from his attorney.  “He told me that we could take it to trial,3
criminal trial, that it was going to be very costly, and if I was found guilty, then I could spend up to ten years in prison.
And at that point, I was out of money.  I didn’t want to drag my family back through all the proceedings again, and so
I pled to assault to end everything.”  Tr. at 42.
Directive ¶ E2.31(a): “a single serious crime or multiple lesser offenses[.]” Directive ¶ E2.31(c): “allegation4
or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or
convicted[.]”  
6
he failed to take the security clearance process seriously does not contravene such an inference.  Tr.
at 20, 46.  The Judge’s own conclusion that one of the omissions was deliberate is a matter which
she should have addressed in evaluating his state of mind regarding the other two.  Indeed, the
multiple nature of the omissions, and the fact that they were made contemporaneously, as well a his
varying explanations for the omissions, are matters which the Judge should have discussed.  Viewed
as a whole, the record demonstrates that the Government presented substantial evidence of the
deliberate nature of Applicant’s omission of his felony arrest.  The Judge’s contrary conclusion is
arbitrary, capricious, and contrary to law.  
Whether the Judge’s application of the mitigating conditions was unsupported by record
evidence.  
The Judge properly concluded that the incident with Daughter raised security concerns under
Guideline J.  Government Exhibit (GE) 6 includes a Probable Cause affidavit, which contains a
description of the incident.  It includes information apparently provided by Daughter to the police.
The document states that Daughter 
visited her father . . . for a regular visit.  She said that at bedtime she was sharing a
bedroom with her half-sister . . . who is 7 years old.  She said her and [sister] were
also sharing a bed. [Daughter] said that she was asleep when her father entered the
room and woke her up, by touching her on the leg. [She] further stated . . . that her
father rubbed up her leg, resting his hand on her vagina. [She] believed her father
rubbed her vagina, with one finger, in a circular motion. [She] stated that her father
continued to rub her vaginal area and legs for approximately five to ten minutes.  
GE 6 also contains a description of a pretext phone call Daughter made to Applicant.  “During the
pretext phone call the suspect . . . did not . . . deny touching [Daughter].  He did extend to [her] an
apology for his actions.”    During a subsequent interrogation by the police Applicant admitted that
he had “sexually molested [Daughter] by fondling her vagina on the night in question.”  Tr. at 68.
See also Decision at 3.  The record, and the Judge’s findings, demonstrate that as a consequence of
his actions, Applicant was charged with sexual assault and entered a plea of guilty to a lesser
included offense in order to avoid the consequences to his family and to himself of a litigated trial.3
The Judge’s conclusion that this matter is covered by two Guideline J disqualifying conditions  is4
Directive ¶ E2.16(a): “deliberate omission, concealment, or falsification of relevant facts from any personnel5
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[.]”   
“Subject in 11/98 was arrested and charged with sexual assault on his daughter . . . Subject after being charged6
had his attorney request this case to be heard in a court by a jury.  Several months after 11/98, this case went to trial.
Subject testified and had other character witnesses testify on his behalf.  Subject recalls his ex-wife and daughter also
testified against him.  Subject recalls that once this case went to the jury, they only took less than one hour to reach a
verdict.  Subject . . . stated that during this [trial] he was found to be not guilty by a jury.”  GE 2 at 5.  
7
sustainable.  Additionally, the Judge’s similar conclusion under Guideline E about Applicant’s
omission of his former wife is also sustainable.   5
However, Department Counsel persuasively argues that the Judge erred in her analysis of the
pertinent  mitigating conditions.  Regarding Guideline J, the Judge concluded that Applicant had met
his burden of persuasion under three provisions in the Directive.  Criminal Conduct Mitigating
Condition (CCMC) 32(a) mitigates security concerns when “so much time has elapsed since the
criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to
recur and does not cast doubt on the individuals’s reliability, trustworthiness, or good judgement[.]”
Directive ¶ E2.32(a).  CCMC 32(c) mitigates criminal conduct when there is “evidence that the
person did not commit the offense[.]” Directive ¶ E2.32(c).  CCMC 32(d) does so when “there is
evidence of successful rehabilitation[.]” Directive ¶ E2.32(d).  Department Counsel argues that the
Judge’s analysis is not supported by record evidence.  The Board notes, for example, GE 2, a record
of Applicant’s subject interview conducted as part of his security clearance investigation.  This
document describes Applicant’s explanation to the investigator, taken under oath and concerning,
among other things, the assault allegation.   In this document Applicant appears to claim that, as a
consequence of Daughter’s allegation, he was taken to trial by a jury and found to be not guilty.6
Although Applicant later stated that this was a reference to the civil hearing concerning his efforts
to return home to his current wife, the statement itself, read in its entirety, could lead a reasonable
person to believe that Applicant was claiming to have been acquitted of the criminal charge of sexual
assault.  There is nothing in the statement about his plea of guilty to the lesser included offense of
assault.  Such a statement is consistent neither with the other record evidence nor the Judge’s own
findings about the criminal trial in Applicant’s case.  Furthermore, in this document Applicant
attributes Daughter’s assault accusation to her having been manipulated by the former wife, whom
Applicant described as “evil” and jealous of Applicant’s current spouse.  This is not totally
consistent with other evidence provided by Applicant, the implication of which is that Daughter
reported Applicant to the police because she was angry that Applicant would not permit her to have
an overnight guest.  Additionally, the Judge does not discuss the credibility of Applicant’s testimony
that his confession, following a polygraph, was actually false and that he had confessed merely due
to having been tired.  Tr. at 68.  These matters, especially when read in light of the omissions on the
SCA, are not consistent with a view that Applicant has demonstrated reliability and good judgement,
or that he has been rehabilitated.  The Judge does not adequately explain why she discounts the
record evidence that impeaches Applicant’s credibility and is contrary to her favorable resolution of
the case.   
See Crofoot v. U.S. Government Printing Office, 761 F.2d 661at 665, n. 1, (Fed. Cir. 1985) (A court that7
receives an Alford plea “must independently determine that the plea has a factual basis”); U.S. v. Alber, 56 F. 3d 1106,
1110 (9  Cir. 1995)(A court accepting an Alford plea must “be convinced that there is sufficient evidence to justify” ath
conclusion that an accused is guilty beyond a reasonable doubt); People v. Birdsong, 958 P.2d 1124 (Colorado 1998);
Wirsching v. Colorado, 360 F. 3d. 1191  (10  Cir. 2004).  See also 21 Am. Jur. 2d ¶  665 (“in order to accept a guiltyth
plea by a defendant who continues to maintain his or her innocence, the court must determine that a strong factual basis
exists establishing defendant’s actual guilt.”)   
See Directive ¶ E2.17(c): “the offense is so minor, or so much time has passed, or the behavior is so infrequent,8
or it happened under such unique circumstances that it is unlikely to recur and does not case doubt on the individual’s
reliability, trustworthiness, or good judgement[;]” Directive ¶ E2.17(e): “the individual has taken positive steps to reduce
or eliminate vulnerability to exploitation, manipulation, or duress[.]”      
Compare this the Judge’s own finding that Applicant had also been arrested for DUI.9
8
The Judge also concluded that Applicant had met the requirements of CCMC 32(c) by
providing evidence that he did not commit the offense.  Under the facts of this case, this appears to
be at odds with the Judge’s other conclusions that Applicant had established that the offense would
not recur and that he had shown rehabilitation.  In any event, the Judge appears to conclude that
Applicant’s Alford plea to a lesser included offense and his denials of criminal conduct demonstrate
that the offense in question did not occur.  While the Judge framed her discussion in terms of sexual
assault, it should be noted that Applicant has denied any criminal activity with Daughter, sexual or
otherwise.  The Judge does not explain why she finds this denial credible in light the record evidence
as to the facts underlying Applicant’s arrest; his admission to the police that he assaulted Daughter
after having been advised that he failed a polygraph examination; and his apparent inconsistent
and/or meretricious statements concerning the incident and its aftermath.  The Judge appears to have
given weight to the fact of the Alford plea, in which a defendant consents to the imposition of a
sentence despite a denial of actual guilt.  However, a court cannot accept such a plea unless it also
finds that it is supported by facts sufficient to sustain a conviction.   Under the facts of this case, such7
a plea, in and of itself, is entitled to minimal favorable weight viewed in light of Applicant’s
otherwise uncorroborated claims of innocence.  The record, viewed as a whole, will not sustain a
conclusion that Applicant has met his burden of persuasion as to the Guideline J mitigating
conditions.
    The Judge also concluded that Applicant has successfully mitigated the Guideline E
allegation.   The Judge stated that Applicant’s failure to list his previous wife “is not significant8
because the usual criminal background investigation in the security clearance process would and did
reveal his first marriage and the arrest.  His 1998 arrest is his only criminal arrest.   There are no9
other allegations of sexual misconduct involving his younger daughter.  Since he has no contact with
[Daughter] or her mother, there is little likelihood of a reoccurrence.  His failure to acknowledge his
first marriage does not cast doubt upon his reliability, trustworthiness, and good judgement.”
Decision at 9.  The Board finds this analysis problematic for a number of reasons.  First, the Judge
evaluated Applicant’s case for mitigation in light of only one of the three Guideline E allegations.
Her failure to consider the totality of Applicant’s conduct  impairs her analysis.  Second, the Judge’s
discussion focuses not only on his falsification but is based to a large extent on the fact that
9
Applicant has not been accused of further sexual misconduct.  This does not logically mitigate
security concerns arising from record evidence of three different omissions on his SCA.  That is, the
gravamen of the Guideline E allegations is that Applicant did not provide correct responses to three
separate questions on the SCA.  Evidence that he has not been accused of other sexual misconduct
does not demonstrate that the omissions in question are minor, are not recent, or are not likely to
recur.  Third, Applicant’s apparent false statement in GE 6 about an acquittal, made after he
completed his SCA, further undercuts a conclusion that his false statements are not likely to recur.
Fourth, the Judge’s analysis does not explain what Applicant has done to reduce or eliminate the
possibility of duress arising from these omissions.  The record, viewed as a whole, will not sustain
a conclusion that Applicant has met his burden of persuasion under the Guideline E mitigating
conditions.
Neither will the record sustain a favorable whole-person analysis.  In that section of her
decision, the Judge states that the allegation of sexual misconduct “arose out of a problematic family
situation and one particular weekend.  In this case, the allegation arose after a difficult weekend
visiting with his oldest daughter.  A jury of his peers, however, concluded that he should return to
his home to live with his family after hearing days of testimony from all persons involved.  The jury
considered balanced testimony and ultimately overruled a negative determination by a social services
panel.  Moreover, the jury found him not to be a threat to his younger daughter.  I infer from the
decision of the jury that the evidence failed to establish sexual misconduct by Applicant.”  Decision
at 10.  The trial to which the Judge refers was the previously-mentioned civil hearing on the question
of whether Applicant should be permitted to live with his current wife and children.  The only
evidence in the record about this hearing comes from Applicant himself.  Even assuming that the
evidence is correct, it establishes nothing more than Applicant’s fitness to live with his second
family.  It provides no basis for the Judge’s conclusion that Applicant did not commit misconduct
involving Daughter, or to undermine the court’s order in the criminal trial that Applicant have no
further contact with her.  Neither does it provide a reason to mitigate Applicant’s omissions on the
SCA.  The Judge stated that Applicant “recognizes his responsibilities and accepts them.  There is
no apparent link between an alleged incident of sexual assault in 1998 and Applicant’s ability to
protect classified information.”  Id.  It is not clear why the Judge concludes that Applicant accepts
responsibility, or for what, in light of his denial of having committed any misconduct with Daughter
at all and his insistence that she and/or his ex wife fabricated the basis for his arrest and subsequent
assault conviction.  To sum up, the record contains substantial evidence that Applicant was accused
of felony sexual misconduct involving Daughter; that he admitted the misconduct to the police
following a polygraph; that consistent with his plea the court found him guilty of a misdemeanor
assault on Daughter; that the court ordered him permanently to stay away from Daughter;  that he
omitted any reference to these matters in his SCA; and that he made inconsistent statements
concerning these matters.  The Judge’s conclusion that Applicant has met his burden of persuasion
under the Egan standard, either regarding the mitigating conditions or the whole-person factors in
the Directive, is not sustainable.  Accordingly, the Judge’s favorable decision is arbitrary, capricious,
and contrary to law.
10
Order
The Judge’s favorable security clearance decision is REVERSED. 
Signed: Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jeffery D. Billett               
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                
James E. Moody
Administrative Judge
Member, Appeal Board