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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 08-05730
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Francisco Mendez, Esq. Department Counsel
For Applicant: Pro se
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Decision
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MASON, Paul J., Administrative Judge:
Based on the case file, pleadings, exhibits, and statements, Applicant’s eligibility
for access to classified information is denied. 
Statement of the Case
Applicant submitted his Security Clearance Application (SCA) on May 29, 2007.
On November 26, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing security concerns under sexual behavior
(Guideline D), and personal conduct (Guideline E). The action was taken pursuant to
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 made effective within the Department of Defense for SORs
issued on or after September 1, 2006. 
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Applicant submitted his answer to the SOR on May 12, 2008. He requested a
decision be made on the record in lieu of a hearing. A copy of the Government’s File of
Relevant Material (FORM, the government’s evidence in support of the allegations in
the SOR) was sent to Applicant on February 24, 2009. He received the FORM on
February 26, 2009. His response was due by March 28, 2009. No response was
received.
Findings of Fact
The SOR alleges seven factual allegations under the sexual behavior guideline,
and five allegations under the personal conduct guideline. Applicant admitted all
allegations. Applicant, 48 years old, has been married to his wife since May 1991, and
has two children, ages 15 and 17. He has been employed as a principal engineer at his
current job since March 1999. He served in the United States Army from September
1980 to September 1984, and received an honorable discharge. Applicant, who has
held a security clearance since at least December 1990, seeks to have his security
clearance continued. 
Sexual Behavior 
The allegations under sexual behavior are based on interviews Applicant
participated in with another agency of the DoD on June 8 and July 19, 2006. He was
asked to explain his involvement in child pornography and sexual encounters with
juveniles since he has been an adult. After the July 19, 2006 interview, Applicant’s
access to special compartmented information (SCI) was suspended. On December 22,
2006, Applicant’s (SCI) access was revoked by the agency. On March 1, 2007,
Applicant appealed the revocation decision, and on March 6, 2007, the agency denied
Applicant’s appeal. A record of interviews and official decisions of the investigation are
included in Item 5 of the FORM.
On June 8, 2006, Applicant was interviewed by a DoD investigator in connection
with his reinvestigation for SCI access. He provided the following information: He
received fellatio from a 15-year-old female in 1986 (SOR 1.a.). In 1987 and 1995,
Applicant looked in the window of a neighbor’s residence and through the window of his
residence to see her in the nude (SOR 1.b.). In 1990 (SOR 1.c.), he inserted his hand
underneath the clothes of a 16-year-old female, touching her vaginal area. He decided
she was too young for sex. Around 1996 and 2005 (SOR 1.d.), he used women’s
underwear to masturbate. In 2003 (SOR 1.e.), Applicant posted a nude photograph of
his wife on the Internet without her knowledge. From approximately 2003 to 2005,
Applicant downloaded from the Internet to his home personal computer pictures of
females under the age of 18 (SOR 1.f.). He kept some of the sexually explicit pictures of
females under the age of 18 until at least 2006 (SOR 1.g.). 
During the second agency interview on July 19, 2006, Applicant indicated he was
initially repulsed by the child pornography, but the more he viewed the pictures, the less
uncomfortable he felt about the pictures’ contents. Applicant admitted he was attracted
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to younger women between the ages of 18 and 22. He was also attracted to juvenile
women who had fully developed breasts and pubic hair (Item 5). From 2003 to
September 2005, Applicant estimated downloading and saving 20 to 30 sets of child
pornography, with each set containing 20 to 30 photographs. The sets included nude
photographs of females between 13 and 17 years old. Applicant protected the
pornography on his home computer with encrypted software or a special cable because
of the illegal nature of the pictures, and to prevent his wife from viewing the pictures. 
In his March 1, 2007 appeal of the initial decision to revoke his SCI, Applicant
recalled his childhood and teenage life in his community where 90% of the females,
ages 15 or older, were engaged in sexual activity. Applicant noted that his contact with
underage females occurred 20 or more years ago. Regarding the posting of his wife’s
picture on the Internet, Applicant explained that the two photos were posted to an “adult
news group” in an unidentifiable form revealing only partial nudity. In addition, the photo
headers had a disclaimer warning that restricted viewing of individuals 18 or older.
Applicant also indicated the photos were not “thumbnail,” and required the viewer to
specifically download the file to open (Item 5). No additional information was furnished. 
Also in Applicant’s March 1, 2007 appeal letter, he disputed the investigator’s
claim that he had illegal pornography in his computer at the time of the examination in
July 2006. Applicant claimed he had no specific recollection of viewing illegal
pornography in 2005, 2006 or 2007. While he had hundreds of photographs, he was
certain only about 10% of the photos showed any nudity at all. Applicant did not (as the
Item 5 agency memorandum claims) masturbate while reviewing photos of females less
than 13 years of age. Applicant also protested he was not provided food in the six or
seven-hour interview in July 2006. Finally, he stated he is not proud of his behavior with
underage females or his downloading/viewing of child pornography. Applicant considers
the conduct in his past. He concluded his appeal statement in Item 5 by stating that his
interview responses in July 2006 were provided in a manner that would reduce the
chances of leaving out any detail. On reflection, he may have provided too much
information because he was uncertain about some of the activity or conduct (Id.).
On March 6, 2007, the original decision to revoke Applicant’s SCI was affirmed.
The reviewer noted that Applicant was under oath during the interview on July 19, 2006,
and was reminded he was under oath as the gathered information was summarized.
The reviewer concluded the information that was affirmed by Applicant was too detailed
to be to be simply tossed out by his claims that the information was false and/or that
interviewer misinterpreted him. Finally, the reviewer confirmed that Applicant was
provided several breaks during the examination, and a 78 minute lunch break (Id.). 
In his interview with an investigator from the Office of Personnel Management
(OPM) on August 9, 2007 (Item 7, contained in interrogatory answers dated June 16,
2008), Applicant unequivocally stated that the downloading and viewing of child
pornography lasted only a month in 2003, rather than the lengthy period of time detailed
in his interviews in July 2006. Applicant stated after reviewing the interview on June 16,
2008, that: the downloading (and storage on compact discs (CDs)) and viewing lasted
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several months, ending in early 2004; the CDs were stored in an inaccessible location
for more than two years, with Applicant accessing the pictures once or twice; the last
time he downloaded any illegal material was in November 2004; and, he discarded all
the CDs in May 2006 without looking at any of the pictures. Applicant concluded the
June 2008 statement by indicating he was ashamed at being involved in the activity,
and did not intend to get involved in the behavior in the future. 
Personal Conduct 
During a personnel screening interview in approximately 1980, Applicant told an
investigator he used marijuana about five times with friends between 1976 and 1978.
Applicant admitted in his answer to the SOR that he deliberately tried to conceal
marijuana use of 50 to 100 times (SOR 2.b.). Applicant’s use of marijuana in the U.S.
Army on one occasion in 1981, and on one occasion in July 1982 (SOR 2.c.), occurred
after he told an investigator he would not use marijuana in the future (SOR 2.d.).
Applicant’s SCI access was revoked in March 2007 (SOR 2.e.). 
Character Evidence
Applicant was advised when he received the FORM on February 26, 2009 that
he could file objections to the information included in the FORM or supply additional
material in support of any claims he wanted to advance. He provided no information.
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 flexible rules of law. Recognizing the complexities of human
behavior, these guidelines are applied in conjunction with the factors listed in the
adjudicative process. The Administrative Judge’s ultimate adjudicative goal is a fair,
impartial and common sense decision. According to the AG, the entire process is a
careful, thorough evaluation 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. If residual
doubts still remain concerning personnel being considered for access to classified
information, those doubts 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.
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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
is not restricted to normal duty hours. Rather, the relationship is an-around-the-clock
responsibility between an applicant and the federal government. 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.
Analysis
Sexual Behavior (SB)
¶ 12. The Concern. Sexual behavior that involves a criminal offense, indicates a
personality or emotional disorder, reflects a 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 the Guideline may be
raised solely on the basis of the sexual orientation of the individual. 
The sexual behavior that Applicant engaged in the 1980s, 1990s, and also
between 2003 and 2006 falls within the scope of SB disqualifying condition (DC) ¶ 13.a.
(sexual behavior of a criminal nature, whether or not the individual has been
prosecuted). Downloading and viewing the numerous child pornography photos is
clearly sexual behavior of a criminal nature. Engaging in sexual behavior with underage
females, e.g., fellatio and fondling, also represents criminal behavior regardless of
whether the individual was ever prosecuted. 
Applicant was troubled when he first viewed the pornography. However, his
feelings changed as he viewed more child pornography. The repetitive nature of his
behavior between 2003 and September 2005 invokes SB DC ¶ 13.b. (a pattern of
compulsive, self-destructive, or high risk behavior that the person is unable to stop or
that may be symptomatic of a personality disorder). 
SB DC ¶ 13.c. (sexual behavior that causes an individual to be vulnerable to
coercion, exploitation, or duress) applies because Applicant is still uncomfortable about
his conduct with the underage females and the child pornography. Since his
examination in July 2006 with the other agency of the DoD regarding continued SCI
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access, Applicant has furnished statements about the information he provided in July
2006. In his March 2007 appeal, he essentially disowned a substantial amount of
information concerning the sexual behavior. In his August 2007 interview, and his
interrogatory responses in June 2008, he disavowed other portions of his July 2006
interviews, while also claiming the pornography lasted only a month or a few months.
Applicant’s retraction of increasing amounts of information since his interviews in July
2006 indicate to me he is minimizing and/or rationalizing the full scope of his conduct,
thus making him vulnerable to duress within the ambit of SB DC ¶ 13.c, as well as the
personal conduct guideline discussed below.  
SB DC ¶ 13.d. (sexual behavior of a public nature and/or that reflects a lack of
judgment or judgment) also applies based on Applicant’s poor judgment between 1986
and 2006. 
The SB guideline identifies four mitigating conditions (MC) that have been
considered. SB MC ¶ 14.a. (the behavior occurred prior to or during adolescence and
there is no evidence of subsequent conduct) is not available for mitigation as the
behavior began after Applicant became an adult and lasted until 2006. 
SB MC ¶ 14.b. (the sexual behavior happened a long time 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, untrustworthiness, or good judgment) may apply if
the conduct occurred a long time ago, was infrequent, or occurred under unusual
circumstances. While there is no indication of sexual misconduct with juveniles after
1990, Applicant continued to engage in masturbation followed by extensive child
pornography activity between 2003 and the second half of 2005, and retained some of
the sexually explicit pictures of females under 18 years old until 2006. The 20-year-
history of sexual behavior, specifically the period after 1990 when Applicant held SCI
access in addition to a security clearance, continues to have a negative impact on his
credibility, trustworthiness and good judgment. 
Applicant has provided insufficient evidence to activate SB MC ¶ 14.c. (the
behavior no longer serves as the basis for coercion, exploitation, or duress). Though an
applicant is not required to stand on a street corner and boast about his sexual
behavior, he should furnish adequate evidence to show the behavior could not be used
as a basis for coercion. Applicant has not met his burden under this mitigator. SB MC ¶
14.d. (the sexual behavior is strictly private, consensual, and discreet) is inapplicable
because Applicant’s sexual activity with juveniles and his viewing of child pornography
was illegal. Applicant exhibited poor judgment in 1986 when he engaged in fellatio with
a 15-year-old female, and fondled a 16-year-old in 1990. Applicant’s lack of judgment
continued with the peeping tom activity in between 1987 and 1995. Applicant
masturbated in 1996 and 2004 to women’s underwear. Considering the totality of
incidents between 1986 and 2006, and particularly the child pornography activity
between 2003 and 2006, the government has established a case under the SB
guideline that has not been mitigated. 
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Personal Conduct (PC)
¶ 15. The Concern. “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.”
PC DC ¶ 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) 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) applies based on Applicant’s sexual behavior between 1986 and 2006,
coupled with the serious falsifications and misrepresentations he made about his
marijuana use, and use of the drug while in the U.S. Army. The falsifications and sexual
behavior raise ongoing concerns about Applicant’s trustworthiness and judgment. 
The sources for exploitation and duress discussed under the SB guideline also
exist under PC DC ¶ 16.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 . . . ). Applicant clearly did not want anyone to know about his child
pornography activity based on his use of encrypted software and special cables. His
minimization of the activity increases his vulnerability to coercion under this disqualifying
condition. 
PC MC ¶ 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) receives limited
application, but does not meet his ultimate burden of persuasion under the PC
guideline. While Applicant acknowledges the illegality of the child pornography, there is
no indication he has received any counseling for the behavior. Unless evidence is
provided on the issue, there is no way for me to determine what action Applicant has
taken to alleviate the stressors, and prevent the child pornography and other sexual
activity from resurfacing in the future. 
I have examined the evidence with the disqualifying and mitigating conditions in
my ultimate finding against Applicant under the SB and PC guidelines. The case still
must be weighed within the context of nine variables known as the whole person
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concept. In evaluating the relevance of an individual’s conduct, the administrative judge
should consider the following factors: 
¶ 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 the participation was 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. 
Applicant provided false information about his drug use in 1980. In 1986 he
received fellatio from a 15-year-old juvenile female. In 1987 and 1995, he engaged in
peeping tom activity. In 1990, he fondled a 16-year-old female. From 2003 to 2006,
while holding SCI and collateral access, he engaged in a pattern of extensive child
pornography activity because of his attraction for young women and developed juvenile
females. Though Applicant indicated he is ashamed of his despicable behavior, given
the lack of counseling and/or other steps taken to relieve his stressors, it is too soon to
conclude he is rehabilitated. Accordingly, I find Applicant has not overcome the adverse
evidence under the SB and PC guidelines. 
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 (Sexual Behavior, Guideline D): AGAINST APPLICANT
Subparagraph 1.a. Against Applicant
Subparagraph 1.b. Against Appellant
Subparagraph 1.c Against Applicant
Subparagraph 1.d. Against Applicant
Subparagraph 1.e. Against Applicant
Subparagraph 1.f. Against Applicant
Subparagraph 1.g. Against Applicant
Paragraph 2 (Personal Conduct, Guideline E): AGAINST APPLICANT
Subparagraph 2.a. Against Applicant
Subparagraph 2.b. Against Applicant
Subparagraph 2.c. Against Applicant
Subparagraph 2.d. Against Applicant
Subparagraph 2.e. Against Applicant
Subparagraph 2.f. 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 national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is denied. 
                       
Paul J. Mason
Administrative Judge