DEPARTMENT OF DEFENSE 
  DEFENSE OFFICE OF HEARINGS AND APPEALS 
  
  
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 07-18673 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Francisco Mendez, Esq., Department Counsel 
For Applicant: Pro Se 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HEINY, Claude R., Administrative Judge: 
 
Applicant downloaded pornographic pictures and movies at work to a 
government computer. During a six month period, Applicant fondled his former 
girlfriend’s 11-year-old daughter on four occasions. Applicant has failed to rebut or 
mitigate the government’s security concerns under sexual behavior, personal conduct, 
and information technology. Clearance is denied. 
 
Statement of the Case 
 
 Applicant contests the Defense Department’s intent to deny or revoke his 
eligibility for an industrial security clearance. Acting under the relevant Executive Order 
and DoD Directive,1 the Defense Office of Hearings and Appeals (DOHA) issued a 
                                                          
1 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) 
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Statement of Reasons (SOR) on March 11, 2009, detailing security concerns under 
sexual behavior, personal conduct, and information technology. 
  
 On March 11, 2009, Applicant answered the SOR, and requested a hearing. On 
May 27, 2009, I was assigned the case. On June 5, 2009, DOHA issued a notice of 
hearing scheduling the hearing which was held on June 25, 2009. The government 
offered Exhibits (Ex.) 1 through 4, which were admitted into evidence. Applicant testified 
on his own behalf. On July 6, 2009, the transcript (Tr.) was received. The record closed 
on June 25, 2009. 
 
Findings of Fact 
 
 In Applicant’s Answer to the SOR, he denied the factual allegations in SOR ¶ 2.a. 
He admitted the remaining factual allegations, with explanations. Applicant’s admissions 
to the SOR allegations are incorporated herein. After a thorough review of the record, 
pleadings, exhibits, and testimony, I make the following findings of fact: 
 
 Applicant is a 35-year-old communications engineer who has worked for a 
defense contractor since June 1998, and is seeking to maintain security clearance.  
 
 Applicant had a job in the information technology (IT) field working on the local 
area network and administering firewalls. His job was to monitor the network looking for 
intrusions. When bored at work, he would view pornographic material. From 2000 to 
October 2005, Applicant downloaded and viewed pornographic images and movies on a 
U.S. Government owned computer. (Ex. 4) He had downloaded more than 500 
pornographic images and approximately 25 pornographic movies. Nothing was stored 
on the computer. Once the movies were watched or the images viewed, they were 
deleted. (Tr. 32) 
 
 Applicant asserted his viewing preference is younger women, not necessarily 
teens, and definitely not underage individuals. Earlier, he had stated his preference was 
for pre-teen, teen, and “barely-legal” females. (Ex. 4) Occasionally, Applicant viewed 
child pornography, but never searched for it. In the search engine he would put in 
“younger, teen, barely legal.” (Tr. 33, 43) Periodically, links would take him to 
inappropriate sites, which he asserts he would close once he discovered the content. 
He asserts he has no interest in child pornography. Since he browses the internet more 
at home than at work, the child pornography would inadvertently come up more often at 
home than at work. (Tr. 46) The last time child pornography inadvertently came up was 
six or seven months ago. (Tr. 50) 
 
 In 2005, some co-workers were caught viewing pornographic material. The 
program manager issued a general warning to all employees that such behavior would 
not be tolerated in the future. (Tr. 32) Applicant states the warning was not directly 
specifically to him. Earlier, around 2000 or 2001, a colleague who noticed Applicant’s 
                                                                                                                                                                                           
promulgated by the President on December 29, 2005, and effective within the Department of Defense for 
SORs issued after September 1, 2006. 
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activity and told Applicant he should discontinue such activity. Applicant denies he 
downloaded pornographic images on his government computer after receiving the 
second warning.  
 
 Applicant no longer views pornographic material at work. Work has instituted 
more measures of monitoring productivity and activity on computers. (Tr. 52) 
Additionally, it is clear that his employer will not tolerate such behavior. 
 
 Applicant acknowledges some of his behavior showed non-compliance with rules 
and regulations at work. In the late 1990s, Applicant masturbated two or three times 
while viewing pornography at work. (Tr. 94) This occurred when Applicant was alone 
during weekend shifts or during an overnight shift. (Tr. 35, 53) Applicant acknowledges 
his conduct showed a severe lack of judgment. He stated he was younger and 
immature and did it when he was on a shift alone.  
 
 Applicant was born in El Salvador and periodically visits family there. (Ex. 1) 
Thirty to forty percent of the time, when he returns to El Salvador, he would frequent 
prostitutes. (Tr. 65) When he goes to adult entertainment clubs with his brothers, he 
does not have sex with prostitutes. (Tr. 66) If he attends with friends, he sometimes 
does. He prefers his brothers not know about his activities with prostitutes out of 
courtesy or respect to his brothers. (Tr. 111) Applicant engaged in sexual relationships 
with prostitutes in El Salvador. He learned after the fact that one of the prostitutes was 
16 years old. (Tr. 61) She had told him she was 18. (Tr. 63) He discovered her age 
because she had told him she had a child when she was 14 and later told him the child 
was two years old. (Tr. 63) Prostitution is legal in El Salvador and brothels do enforce 
an 18-year-age limit on prostitutes. Applicant assumes the woman used false 
documents to get her job.  
 
 Applicant has used his home computer to browse pornographic sites where the 
subjects look underage. He told an investigator that ten percent of the pornography he 
viewed at home contained underage subjects. (Ex. 4) At the hearing, he stated the 
subjects were not underage and that five percent of his viewing was of younger women. 
 
 From 1998 through 2004, Applicant dated a woman. (Tr. 54, 74-75) She lived in 
her parent’s home. When Applicant stayed overnight he would sleep in the same bed as 
his girlfriend, her daughter, and her son. During a six month period in 2003, Applicant 
fondled his former girlfriend’s 11-year-old daughter on four occasions. (Tr. 73) The 
fondling was limited to touching the daughter’s buttocks outside her clothing. He states 
his former girlfriend and her daughter were about the same height. Applicant does not 
fully remember the events as they happened. He says there are “just flashes here and 
there of uncertainty.” (Tr. 110) The number of times it occurred is not based on his 
memory of the events, but on what the girl told her mother. The mother then confronted 
Applicant about his conduct. Applicant stated, “I felt really like guilty about it.” (Tr. 57)  
 
Each time the fondling occurred, Applicant and his girlfriend had been out late at 
night clubs and he was very drunk, exhausted, and disoriented. (Tr. 36, 37) At the 
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hearing Applicant stated, “. . . I still think it’s possible that I erroneously thought it was 
my girlfriend at the time. . .” (Tr. 37) He also said he “. . . was just very ashamed really.” 
At the time the events occurred, Applicant stated he had “drank heavily.” (Tr. 93)  
 
 Eventually, Applicant stopped sleeping in the same bed with his girlfriend and her 
children and started sleeping on the floor. (Tr. 111) His girlfriend moved into her 
parent’s basement where there was more room and then moved to her own home 
where her children had their own room. (Tr. 38)  
 
 In the early 2000s, his girlfriend and parents expressed a concern that Applicant 
was drinking too much. (Tr. 87) From 2000 to March 2006, Applicant suffered from 
blackouts while drinking. (Ex. 4) From 2003 to September 2004, he blacked out every 
other month. From September 2004 to January 2006, he was blacking out every month. 
(Tr. 91) He stated from 1998 until September 2004 he drove under the influence of 
alcohol twice a month. From 2004 until January 2006, he drove under the influence one 
or twice a week. (Tr. 91) At the hearing, he stated if he had one or two beers, he 
considered himself to be under the influence. (Tr. 92)  
 
 In March 2006, Applicant’s access to classified information and his access to 
special compartmented information (SCI) were suspended. (Ex. 4) In March 2008, his 
security clearance was suspended. (Ex. 2) His access was suspended based upon a 
decision by another government agency to deny his access to SCI. (Ex. 2) Applicant 
asked his company security representative for assistance in answering his Electronic 
Questionnaires for National Security Positions (e-QIP). (Ex. 1) He was asked if he had 
ever been “denied” a clearance. The security representative told him to answer “no” 
because his clearance was suspended and not denied. (Tr. 30)  
 
 The majority of the derogatory information was obtained during a voluntary 
polygraph. Applicant was given the opportunity for a top secret clearance with SCI 
access. He did not need this level of clearance to perform his current job. (Tr. 39) At the 
polygraph, Applicant believed he needed to be as forthcoming as possible and divulge 
as much information as was needed. (Tr. 21)  
 
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 must be considered 
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 overarching 
adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), 
the entire process is a conscientious scrutiny of a number of variables known as the 
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“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. 
  
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 D, Sexual Behavior 
 
 Revised Adjudicative Guideline (AG) ¶ 12 articulates the security concerns 
relating to sexual behavior : 
 
The Concern: 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. 
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 On four occasions he fondled his former girlfriend’s 11-year-old daughter by 
grabbing her buttocks. Applicant said he had been drinking and was confused between 
his girlfriend and her daughter who were about the same size. He engaged in sexual 
relations with a 16-year-old prostitute In El Salvador. He continues to view pornographic 
material on his home computer of very young females.  
 
 Applicant states that five percent of the pornography he has viewed at home 
contains underage subjects. He states this was unintentional, inadvertent, and 
accidental viewing. Initially he acknowledged the material was child pornography, but on 
further reflection he asserted he was only seeking “teen” or “younger women” and not 
child pornography.  
 
 Even though he was not prosecuted, AG ¶ 13(a) “sexual behavior of a criminal 
nature, whether or not the individual has been prosecuted” applies to his fondling of the 
11-year-old girl and the viewing of child pornography. He engaged in sexual relations 
with a 16-year-old prostitute in El Salvador. Prostitution is legal in El Salvador and 
Applicant was not aware the prostitute was underage until after they had sexual 
relations. I find AG ¶ 13(a) does not apply to his actions with the prostitute.  
 
Applicant acknowledges some of his behavior showed non-compliance with rules 
and regulations at work. In the late 1990s, Applicant masturbated two or three times 
while viewing pornography at work. This occurred with Applicant was alone during 
weekend shift or during an overnight shift. He continued to view pornographic material 
at work after being warned not to do so.  
 
 AG ¶ 13(d) “sexual behavior of a public nature and/or that which reflects lack of 
discretion or judgment,” applies to his viewing of pornographic material at work and his 
masturbating while watching pornographic material at work.   
 
AG ¶ 14 lists conditions that could mitigate security concerns include: 
 
(a) the behavior occurred during or 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; 
 
(d) the sexual behavior is strictly private, consensual, and discreet.  
 
 None of the mitigating conditions apply. AG ¶ 14(a) does not apply because the 
behavior occurred after adolescence. AG ¶ 14(b) does not apply because the behavior 
did not happen long ago and was not infrequent. He downloaded 500 pornographic 
images and 25 pornographic movies, which is not infrequent. He fondled his former 
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girlfriend’s daughter four times over a six month period, which certainly casts doubt on 
his current reliability, trustworthiness, or good judgment. To have it happen once is 
inexcusable, but to continue sleeping in the same bed with his girlfriend and her children 
after the first time is unforgivable.  
 
 Applicant is likely to continue viewing adult material of very young women on his 
home computer. Initially, Applicant said ten percent of the material on his home 
computer contained underage material. He later reduced his estimate to five percent.  
 
 AG ¶ 14(c) does not apply because Applicant does not want his brothers to know 
he frequents prostitutes while in El Salvador. There is no evidence who, if anyone other 
than the company’s security officials, knows of Applicant’s conduct. AG ¶ 14(d) does not 
apply because the viewing of pornographic material and masturbation at work was not 
strictly private, consensual, or discreet behavior. 
 
 Additionally, Applicant has failed to take responsibility for his actions. His excuse 
for viewing of pre-teen pornography was because the search engines inadvertently took 
him there. He groped his ex-girlfriend’s 11-year-old daughter, because she was about 
the same size as his girlfriend and he had been drinking. His excuse for masturbating at 
work while watching pornographic movies and other pornographic material was 
because there was no one else around and he was bored. A coworker told him he 
should not view pornographic material at work, but Applicant chose to do so anyway. It 
was not until a warning was issued to all personnel that he finally stopped viewing the 
material on the government computer. 
 
The passage of time since the events is a factor to be considered. However, the 
passage of time, in and of itself, is not the controlling factor. The nature and relevant 
circumstances surrounding the conduct must also be considered. It is the intentional 
acts plus Applicant’s failure to take responsibility for his conduct that is controlling. He 
knew his conduct was inappropriate, but he continued to do it anyway. Applicant 
acknowledges his conduct showed a severe lack of judgment.  
 
Guideline E, Personal Conduct  
 
The Directive sets out various factors relevant to an applicant=s personal conduct 
that may be potentially disqualifying. Paragraph 15 of the adjudicative guidelines states 
a concern where there is 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.” 
 
A government agency denied Applicant’s SCI access and his personal security 
clearance granted as a contractor was suspended. He continued to view pornographic 
material on the government computer after having been told to stop. He stopped after a 
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warning was issued to everyone. His viewing of pornographic material at work, 
masturbating at work, and fondling his former girlfriend’s 11-year-old daughter are 
conduct which shows questionable judgment and an unwillingness to comply with rules 
and regulations.  
 
Under the Directive, an applicant may mitigate the security concerns arising from 
questionable personal conduct under certain circumstances. AG ¶17 provides 
conditions that could mitigate personal conduct security concerns. 
 
AG ¶ 17(a) “if a person “provides the individual made prompt, good-faith efforts to 
correct the omission, concealment, or falsification before being confronted with the 
facts,” does not apply because omissions have not been alleged. AG ¶ 17(b) does not 
apply because there was no refusal or failure to cooperate.  
 
 Mitigating factor 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” does not apply. As previously stated, the 
behavior did not happen long ago and was not infrequent. The fondling of an 11-year-
old is not a minor incident. There is no evidence his conduct occurred under such 
unique circumstances that it is unlikely to recur. 
 
 Applicant acknowledged some of his behavior was inappropriate, but there has 
been no counseling and there is no evidence of positive steps to alleviate the stressors 
or evidence the behavior is unlikely to recur. Mitigating factor 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” does not apply. 
 
There is no evidence of what steps, if any, Applicant has taken to reduce or 
eliminate vulnerability to exploitation, manipulation, or duress. Even Applicant’s brother 
are unaware he frequents prostitutes. Mitigating factor AG ¶ 17(e) “the individual has 
taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or 
duress” does not apply.  
 
Applicant=s inappropriate conduct is substantiated by his admissions and 
government exhibits. The information was pertinent to a determination of his judgment, 
trustworthiness, and reliability. AG ¶ 17(f) provides mitigation where “the information 
was unsubstantiated or from a source of questionable reliability.” This mitigating factor 
does not apply. There was no allegation of association with other persons involved in 
criminal activity other than frequenting prostitutes. The prostitution was legal where it 
occurred. Mitigating factor AG ¶ 17(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” does not apply.  
8 
 
GUIDELINE M, Misuse of Information Technology Systems  
 
 Revised Adjudicative Guideline (AG) ¶ 39 articulates the security concerns 
relating to misuse of information technology systems : 
 
The Concern. Noncompliance with rules, procedures, guidelines or 
regulations pertaining to information technology systems may raise 
security concerns about an individual's reliability and trustworthiness, 
calling into question the willingness or ability to properly protect sensitive 
systems, networks, and information. Information Technology Systems 
include all related computer hardware, software, firmware, and data 
used for the communication, transmission, processing, manipulation, 
storage, and protection of information.  
 
 Between 2000 and October 2005, Applicant viewed and downloaded 
pornographic images and pornographic movies onto a government owned computer. A 
co-worker warned Applicant to discontinue such activity. Applicant did not do so until co-
workers were caught viewing pornographic material and the program manager issued a 
general warning to all employees that such behavior would not be tolerated in the 
future. AG ¶ 40(e) “unauthorized use of a government or other information technology 
system” applies.  
 
AG ¶ 41 lists conditions that could mitigate security concerns include:  
 
(a) so much time has elapsed since the behavior happened, or it 
happened under such unusual circumstances, that it is unlikely to recur 
and does not cast doubt on the individual=s reliability, trustworthiness, or 
good judgment;  
 
(b) the misuse was minor and done only in the interest of organizational 
efficiency and effectiveness, such as letting another person use one=s 
password or computer when no other timely alternative was readily 
available; and  
 
(c) the conduct was unintentional or inadvertent and was followed by a 
prompt, good-faith effort to correct the situation and by notification of 
supervisor.  
 
AG ¶ 41(a) applies only partially. It has been less than four years since the last 
behavior at work. Applicant no longer views pornographic material at work because of 
the warning and because work has instituted more measures of monitoring productivity 
and activity on computers. He is unlikely to view pornography at work again. However, 
the serious nature of the misconduct raises a security concern. 
 
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AG ¶ 41(b) and AG ¶ 41(c) do not apply because the misuse was not minor nor 
was the conduct unintentional or inadvertent. The conduct was not followed by a 
prompt, good-faith effort to correct the situation. Even after being warned he continued 
to view pornography until the program manager gave a warning to all personnel.  
 
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) 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 eligibility for a 
security clearance must be an overall commonsense 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 acknowledges some of his behavior showed non-compliance with rules 
and regulations at work and his conduct shows a severe lack of judgment. However, he 
does not accept the inappropriate nature of his conduct and instead offers excuses. 
 
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 sexual behavior, 
personal conduct, and misuse of information technology systems. 
 
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:  AGAINST APPLICANT 
 
  Subparagraph 1.a—1.d:  Against Applicant 
  Subparagraph 1.e:   For Applicant     
  Subparagraph 1.f—1.g:  Against Applicant  
10 
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 Paragraph 2, Personal Conduct:   AGAINST APPLICANT 
 
  Subparagraph 2.a—2c:  Against Applicant 
 
 Paragraph 3, Information Technology: 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 the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied.  
 
 
_______________________ 
CLAUDE R. HEINY II 
Administrative Judge