DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 07-02721 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Richard Stevens, Esquire, Department Counsel 
For Applicant: Wheeler M. Tillman, Esquire 
 
 
 
______________ 
 
Decision 
______________ 
 
CREAN, Thomas M., Administrative Judge: 
 
Applicant submitted a security clearance application (SF 86) to update his 
security clearance on April 25, 2006.  The security clearance application was submitted 
because Applicant was convicted of a felony offense in January 2006 for an incident 
that happened in May 2005.  On June 19, 2008, the Defense Office of Hearings and 
Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing security 
concerns for sexual behavior, personal conduct, and criminal conduct under Guidelines 
D, E, and J, respectively.  The security concerns arose out of the same incident from 
May 2005.  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 June 27, 2008. 
  
 
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 Applicant answered the SOR in an undated response received at DOHA on 
August 11, 2008.  Applicant denied all allegations except for the allegation that he is a 
registered sex offender.  He requested a hearing before an administrative judge.   
 
 Department Counsel was initially prepared to proceed on August 21, 2008, and a 
notice of hearing was issued on October 6, 2008, for a hearing on October 21, 2008.  At 
the hearing under another administrative judge, Applicant did not understand his rights 
to counsel and the hearing was postponed to permit Applicant to obtain counsel.  The 
case was reassigned to me on November 19, 2008.  Applicant obtained counsel, and a 
new notice of hearing was issued by DOHA on January 8, 2009, for a hearing on 
February 6, 2009.  I convened the hearing as scheduled.  The government offered four 
exhibits, marked government exhibits (Gov. Ex.) 1 through 4, which were received 
without objection.  Applicant and six witnesses testified on his behalf.  Applicant also 
introduced six exhibits, marked Applicant Exhibits (App. Ex.) A through F which were 
admitted to the record without objection.  Two hearing exhibits, marked Hearing Exhibits 
1 and 2, for the purpose of establishing facts for administrative notice were also 
introduced by the government and received without objection.  DOHA received the 
transcript of the hearing (Tr.) on February 23, 2009.  Based on a review of the case file, 
pleadings, exhibits, and testimony, eligibility for access to classified information is 
denied. 
 
Findings of Fact 
 
Applicant is 40 years old and has been a network technician for a defense 
contractor for over six years.  Applicant served almost four years in the Navy and 
received an honorable discharge as a Seaman (E-3).  He did have some non-judicial 
punishments while on active duty.  He returned to the area where he grew up and 
started working for a business as an assembly line worker.  He attended and graduated 
from technical school as part of the employer's development program and became a 
set-up mechanic.  He worked for that business for 13 years before starting work for the 
defense contractor.  Applicant has had a security clearance while working for the 
defense contractor.  He is married with two step-children by his wife from a former 
marriage and two children of his own.  Only the two youngest children live at home.  
However, he and his wife are now separated and he lives separately from the family (Tr. 
127-130; Gov. Ex. 1, SF 86, dated April 25, 2006; App. Ex. E, Transcript, dated 
December 19, 2006; App. Ex. F, Transcript, dated March 19, 1999).   
 
Applicant's middle school counselor and special education teacher testified that 
even though Applicant had dyslexia and was hyperactive, he had a positive attitude and 
was eager to learn.  He was pleasant, friendly, and respectful in school.  He was very 
bright with an I.Q of 123 which is in the superior range.  She prepared a letter outlining 
his need for special education accommodation so he could attend college and technical 
school (Tr. 21-32; App. Ex. A, Letter, dated June 8, 1999). 
 
In May 2005, Applicant was at a camp site with family friends including the fifteen 
year old daughter of a close friend.  While he and the girl were alone, she backed into 
 
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Applicant.  He put his hands on her shoulders and she placed them on her breasts over 
her clothes.  He stated he was surprised by he actions.  He did not stalk the girl prior to 
the incident.  There was no weapon involved, no threats were made, and no bondage 
was used.  There was no penetration of the girl and no hands were placed under her 
clothing.  Immediately after the incident, he left the state and drove to a neighboring 
state to think about the incident and seek guidance from family and friends.  He turned 
himself into the police in the neighboring state, informing them of the incident.  A 
warrant had not yet been issued so he told the police where he could be located.  He 
was arrested the next day after an arrest warrant was issued and he voluntarily returned 
to the state where the incident took place.  Applicant was charged with the felony of 
committing a lewd act upon a child under 16.  He informed his supervisor and others at 
his company of the incident and his arrest.  He pled guilty to the felony offense on 
January 4, 2006, and was sentenced to 12 years incarceration, suspended.  He was 
placed on probation of four years.  He was required to register as a sex offended.  
Applicant admitted and never denied the conduct whether questioned by the girl's 
father, criminal investigators for the state, or security investigators.  He was straight 
forward and honest in his statements concerning the incident (Tr, 127-145; Gov. Ex. 4, 
Applicant's statement, dated December 19, 2006; See, Hearing Exhibit 1 and 2, State 
Statute on Sex Offender Registry; Gov. Ex. 2, Sex Offender Registry, dated December 
12, 2007).  When Applicant went to another state on business, he was also required to 
register as a sex offender.  He did comply with the rules and direction and registered as 
a sex offender (Gov. Ex. 3, sex offender registry, dated December 10, 2007).  
 
During a subsequent investigation by child protective service, it was reported that 
Applicant gave wine to his daughter when she was 13 years old and placed the hands 
of the sister of the girl in the May 2005 incident between his knees while on a fishing trip 
to keep them warm.  The allegations were investigated but not substantiated and no 
action was taken.  The allegations of the incidents were dropped.  There are no other 
charges in the state pending against Applicant (App. Ex. D, Record check, dated 
January 21, 2009). 
 
The father of the victim of the lewd act testified that he has known Applicant for 
over ten years.  When he went to work for Applicant's initial employer, he was on the 
same shift as Applicant and they became friends.  Applicant was always a good worker 
and was sent out on jobs because of his ability.  He was proud of his work, open-
minded to improvements, and always working to get the job done.  He was always calm, 
and he never saw him excited or upset.  Applicant was always honest, truthful, and 
followed the rules.  He was selected for the employer's technical improvement program 
and became a set-up mechanic.   
 
Their families were close and they did activities together.  In fact, he worked with 
Applicant in Applicant's part-time side business. When he learned of the incident with 
his daughter and Applicant, he called Applicant.  Applicant informed him that his 
daughter was truthful and he admitted the circumstances of the incident.  He felt 
Applicant was honest and truthful with him about the incident (Tr. 32-44).   
 
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Applicant's probation officer testified that he has been a probation officer for 
about 11 years.  He previously served in the Navy and worked in the naval shipyard for 
19 years.  He was Applicant's probation officer from January 2006 until he retired on 
June 27, 2008.  He saw Applicant once a month in his office and on one or two home 
visits a month.  Applicant followed the rules and performed satisfactorily during his 
probation.  The witness trusted Applicant to do what he was required to do, but he did 
verify that he performed as required.  Applicant was required to attend counseling and 
he did what was required.  He was required to and did register as a sex offender.  He 
would expect Applicant to conform to the terms and conditions of his probation.  A lot of 
probationers violate the rules of probation, but Applicant was always cooperative.  The 
witness considered the 12 year sentence to be fair and very motivating.  It was an 
attention getter.  He believes Applicant is calm and laid back, has a responsible position 
at work, and his employer thinks highly of him.  Applicant four year probation will end in 
2010 (Tr. 45-61).   
 
Applicant's therapist, a licensed mental health counselor (App. Ex. B, Curricula 
Vitae) testified that he has been a therapist for sexual abuse offenders for over 11 years 
and counseled over 100 people.  He also does general mental health counseling and 
contributes to professional journals on mental health issues. 
 
He has seen Applicant in a clinical setting once a month in group therapy and 
once a month in an individual session since the sentence was imposed in January 
2006.  Applicant was always candid and honest in these sessions.  He is laid back and 
not prone to anger.  He is conscientious about following the rules, and is always straight 
forward, truthful, and forth coming.  His initial diagnosis was Applicant had an 
adjustment disorder with a disturbance of conduct.  This diagnosis is used when a 
therapist is not sure if the patient has a problem.  After six months of therapy, he 
changed his evaluation to an impulse control diagnosis with intermittent explosive 
disorder.  He further opined that Applicant is not a pedophile, sociopath, psychopath, or 
has an anti-social personality.  Applicant simply made a mistake in judgment.  This 
situation has not recurred and is not likely to recur.  He believes Applicant would protect 
classified information (Tr. 62-95). 
 
Applicant's supervisor testified that he has worked with Applicant for about six 
years.  Applicant started as an electronic technician and is now a network specialist.  He 
is very loyal to the company, serious about his job, and proactive.  He is respected by 
his fellow workers and follows directions.  Applicant has not been involved in any 
inappropriate behavior at work.  He has held a security clearance while employed by the 
company.  He prepared the Applicant's performance reviews since he has been with the 
company and rated him as an excellent employee who is an asset to the company (App. 
Ex. C, Evaluations, dated October 16, 2008, June 29, 2006, and June 30, 2004).  He is 
absolutely sure Applicant would protect classified information (Tr. 96-112).   
 
A government employee who oversees Applicant's work from the employer for 
the government testified that he controls Applicant's work.  Applicant is a good worker.  
He is a regular, normal person, who is neither excitable nor laid back.  Applicant will do 
 
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what is required for his sentence for the sexual misbehavior and criminal conduct 
incident.  He is so reliable that he has absolute trust in Applicant's ability to protect 
classified information (Tr. 112-126).   
 
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 
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. 
 
 
 
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Analysis 
 
 The security concerns raised for Applicant are all from the same incident.  
Security concerns are raised for sexual behavior, criminal conduct, and personal 
conduct and are the same for each.  The security concern involves questions of 
Applicant's reliability, judgment, and trustworthiness.  Sexual behavior that involves a 
criminal offense indicates a personality or emotional disorder, reflecting lack of 
judgment or discretion which can raise questions about the individual's reliability, 
trustworthiness, and ability to protect classified information (AG ¶ 12).  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 regulation (AG ¶ 30).  Personal 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.  Since the security concerns are similar, the concerns will be discussed as 
a group. 
 
 Applicant admits and the information clearly establishes that he committed a 
lewd act on a child under the age of 16.  This criminal offense establishes the Sexual 
Behavior Disqualifying Condition (SB DC) AG ¶ 13(a) "sexual behavior of a criminal 
nature, whether or not the individual has been prosecuted."  This is a felony offense and 
establishes Criminal Conduct Disqualifying Condition (CC DC) ¶ 31(a) "a single serious 
crime or multiple lesser offenses."  Since Applicant is still under his sentence to 
probation, CC DC AG ¶ 31(d) "individual is currently on parole or probation" is also 
established.  The incident also establishes Personal Conduct Disqualifying Condition 
(PC DC) AG ¶ 16(c) "credible adverse information in several adjudicative issue areas 
that is not sufficient for an adverse determination under any other single guidelines, but 
which, when considered as a whole, supports a whole-person assessment of 
questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to 
comply with rules and regulation, or other character issues indicating that the person 
may not properly safeguard protected information." 
 
 The government produced substantial evidence by way of Applicant's admission 
and statements to establish the disqualifying condition in AG ¶¶ 13(a), 31(a), 31(d), and 
16(c).  The burden shifts to Applicant to produce evidence to rebut, explain, extenuate, 
or mitigate the security concerns under sexual behavior, criminal conduct, and personal 
conduct.  An applicant has the burden to refute an established allegation or prove a 
mitigating condition, and the burden to prove or disprove it never shifts to the 
government. 
 
Each of the alleged security concerns has a similar mitigating condition.  These 
mitigating conditions involve the passage of time, the unusual nature of the action 
causing security concerns, the likelihood of recurrence, and whether the actions cast 
doubt on the individual's reliability, trustworthiness, and judgment.  I considered Criminal 
Conduct Mitigating Conditions (CC MC) ¶ 32(a) "so much time has elapsed since the 
criminal behavior happened, or it happened under such unusual circumstances that it is 
 
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unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, 
or good judgment"; Sexual Behavior Mitigating Condition (SB MC) AG ¶ 14(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"; and Personal Conduct Mitigating 
Condition (PC MC) 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."  The incident took place in May 2005, and Applicant pled guilty to 
the felony of committing lewd acts on a child under 16 and sentenced in January 2006 
to a suspended jail sentence of 12 years and four year probation.  The incident took 
place almost four years ago.  Applicant is still serving his period of probation, and 
attending therapy with a mental health professional.  Four years is not a long time to 
establish successful rehabilitation for a felony offense such as lewd acts on a child 
under 16.  There were no unusual circumstances causing Applicant to commit the 
offense.  He was not forced into the action and his judgment was not impaired by any 
substance abuse or other circumstances.  While Applicant appears on the path to 
rehabilitation for his sexual deviant and criminal conduct, he has not provided sufficient 
information to establish that it would not happen again.  Accordingly, he has not 
established these mitigating conditions for the security concerns alleged. 
 
Successful rehabilitation is also a factor to consider in mitigating the security 
concerns.  There is no rehabilitative mitigating condition for deviant sexual behavior.  
However, I have considered Criminal Conduct Mitigating Condition (CC MC) AG ¶ 32(d) 
"there is evidence of successful rehabilitation, including but not limited to the passage of 
time without recurrence of criminal activity, remorse or restitution, job training or higher 
education, good employment record, or constructive community involvement"; and 
Personal Conduct Mitigating Condition (PC MC) 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."  Applicant always acknowledged his behavior and never denied he did 
something wrong.  He registered as required as a sex offender and has followed the 
directives of registering when he travels to other states.  He has continued to work and 
perform excellently for his employer.  He has not been involved in any conduct that 
causes security concerns since the incident in May 2005.  He successfully followed the 
directives of his probation officer, and faithfully attended counseling, both individual and 
group, with his mental health therapist.  There are signs of successful rehabilitation.  
Again however, Applicant is still under probation for another ten months and still 
attending mental health counseling.  Under these circumstances, it is too soon to 
determine that he has been successfully rehabilitated.  Applicant has not presented 
sufficient information to mitigate security concerns for criminal conduct, sexual behavior, 
and personal conduct.   
 
 
 
 
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 “Whole Person” Analysis  
 
 Under the whole person concept, the Administrative Judge must evaluate an 
applicant’s security eligibility by considering the totality of the applicant’s conduct and all 
the circumstances. An 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) the 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 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.  I considered that Applicant is a 
good employee and a conscientious and dependable worker held in high regard by this 
supervisors and peers.  Applicant exhibits signs of successful rehabilitation.  He always 
acknowledged his guilt of the offense which is the first sign of rehabilitation.  He is 
remorseful for his conduct and the impact it had on the victim, her family, and his family.  
He has followed every direction of his probation officer and has done everything 
required of his probation.  He is faithful to his mental health counseling.  While there are 
signs of rehabilitation, it is too soon to determine that Applicant has been successfully 
rehabilitate, and that sexual behavior or criminal and personal conduct problems will not 
arise in the future causing security concerns.  Applicant received a stiff sentence for his 
criminal conduct.  He is still on probation with the threat of that sentence still real to him.  
Under these circumstances, Applicant can be expected to exhibit good behavior or he 
would face significant adverse consequences.  He is still living under direct supervision 
of the probation officer.  Society has a stake in ensuring that Applicant continues to be 
supervised.  Under these circumstances it is too soon to determine that he can be 
trusted with access to classified information.  Overall, on balance the record evidence 
leaves me with questions or doubts as to Applicant’s eligibility and suitability at this time 
for a security clearance.  For all these reasons, I conclude Applicant has not mitigated 
the security concerns arising from his criminal and personal conduct, and sexual 
behavior.  
 
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: 
 
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 Paragraph 1, Guideline J:   AGAINST APPLICANT 
 
  Subparagraph 1.a:    Against Applicant 
 
 Paragraph 2, Guideline D:   AGAINST APPLICANT 
 
  Subparagraph 2.a:    Against Applicant 
  Subparagraph 2.b:    Against Applicant 
 
 Paragraph, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 3.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. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge