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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------------- )       ISCR Case No. 08-02777
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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MARSHALL, Jr., Arthur E., Administrative Judge:
Applicant completed a security clearance application (SF-86) dated October 4,
2004. On March 11, 2009, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) enumerating security concerns arising under Guideline
D (Sexual Behavior) and Guideline E (Personal Conduct). 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 for SORs issued after September 1, 2006. 
In a response notarized on March 30, 2009, Applicant admitted all four
allegations set forth under Guideline D. He denied one allegation and failed to answer
the second allegation noted under Guideline E. In his response to the SOR, Applicant
requested a determination without a hearing. Consequently, Department Counsel
submitted a File of Relevant Material (FORM), dated August 17, 2009, that included six
attached items. Applicant timely responded to the FORM on September 21, 2009. On
September 30, 2009, the Director, DOHA, forwarded the case for assignment to an
 See SF-86 at 3-4.      1
 The adult website at issue is not limited to chat rooms or pictures in general, but has rooms organized by      2
rating (G, R, and X), including others “labeled as intended for people interested in specific sexual themes,
such as tattoos and piercings, bisexuality, nudism, and bondage.” FORM at 11.
 Response to SOR at 2. Elsewhere, Applicant stated that the government’s insinuation that the web site’s      3
“criminal behavior is pervasive and unavoidable” is flawed. FORM at 10.
 Id.      4
 Id.      5
 FORM at 12. See also FORM at 22, at which Applicant quotes a warning from the web site reminding      6
patrons of a room named “Perverted Old Men” that the “room is about LEGAL girls,” before proceeding to a
puerile, if not sexually vulgar, “jest” of what violators of this warning might face in prison and in the hereafter.
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administrative judge. I received the case on October 9, 2009. Based upon a review of
the case file, submissions, and exhibits, I find Applicant failed to meet his burden
regarding the security concerns raised. Security clearance is denied.
Findings of Fact
Applicant is a 45-year-old researcher who has worked for the same defense
contractor since 2003. He earned degrees at both the bachelor’s and master’s level
from well-regarded colleges. He subsequently served as an officer in the military
reserves for approximately five years, during which time he married.1
In choosing to have an administrative determination without a hearing,
Applicant’s facts and arguments are essentially limited to those put forth in the FORM,
in his answer to the SOR, and in his response to the FORM. Consequently, the relevant
facts of record are scant. 
Applicant admitted to all four allegations arising under Guideline D, Sexual
Behavior.  Specifically, he admitted SOR allegation ¶ 1.a (“You visited an adult chat
room on a website from about 1996 to at least March 2006 where on occasion child
pornography would appear”) and ¶ 1.b (“You viewed child pornography that appeared
on your computer when you visited an adult website from 1996 to at least March
2006").  Applicant explained that “it is untrue to say that [he] knew illegal material would2
appear at the website in question,” but conceded that “[i]n my experience, these were
always rare events and eventually they stopped.”  After his first exposure to illegal3
imagery and with an underage sex chat participant, he sought “to identify by type of
username the sorts of people most likely to post illegal materials” and to avoid on-line
contact with them.  4
Such instances were eventually repeated. Over time, the website instituted
increasingly more rigorous attempts to keep participants and their postings at a legal
level.  By 2004, the web site specifically prohibited “Lolita Pics.”  Applicant admitted he5 6
saw illegal images six or eight times “over the years,” but could only “specifically
 Id. at 3. Elsewhere, Applicant stated the number of times such images were viewed was closer to three      7
or four. Response to FORM at 18.
 Response to the SOR at 3.      8
 Response to FORM at 6.      9
 Id.      10
 Id. at 18. Applicant states he remains “married to the same woman and she has never raised the topic.”      11
Id. at 7. Applicant further noted that he received training with regard to the appropriate procedures for
reporting “encounters with foreign national prostitutes abroad.” Id. at 1. None of the allegations concern
contact with prostitutes, foreign or domestic.
 Id. at 7.      12
 Id. at 7. Applicant further explains the popularity of on-line sex chat rooms and sex-oriented role playing      13
games while depicting the web site at issue, which features an extensive variety of sexual and nonsexual sub-
domains, as “within the mainstream of this cultural phenomenon.” Id.at 7-8.
 Id. at 4. There is similarly no evidence that Applicant has what is termed in the materials as a “reptilian      14
brain.” See, e.g., Id. at 5. 
 FORM at 19. Consequently, Applicant feels Sexual Conduct Mitigating Condition 17(f) applies.      15
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remember two [instances or images],” occurring in 1996 and in “perhaps 1998.”7
Applicant is “unable to recall the last time” he saw “such an image.”  8
In response to SOR allegation ¶ 1.c (“You joined phone sex lines and
masturbated while on-line to at least March 2005"), Applicant admitted he used
telephonic or on-line chat rooms of a sexual nature at various times. In 1996 he
engaged in an on-line sex chat with a minor.  Later, in 1999, he curtailed another on-9
line sexual conversation when he discovered the person with whom he was chatting
identified herself as a minor. Applicant, however, had “no way of verifying” the sex or
age of this person.  Applicant’s “wife, boss, the security officer at [his] company, the10
President and Vice President of [his] company, and to a lesser degree several of [his]
closest friends all know what has happened,” although there is no evidence as to the
extent of their knowledge regarding these activities.  Applicant stated his use of on-line11
sex chat “manifestly would not” affect his personal, professional or community
standing.  He argues that “sex chat” is “well within community standards and has been12
since the World Wide Web began to be popular.”  13
Finally, Applicant admitted SOR allegation ¶ 1.d (“Your personal computer,
laptop, and hard drive were surrendered to an Other Government Agency for inspection
during an investigation pertaining to child pornography in about August 2005").
Applicant noted he voluntarily complied with the investigators’ requests. He also stated
that no illegal materials were found. Applicant does not have a prurient interest in child
pornography.  Applicant argued that his statements to investigators prior to the14
examination of his computers and prior to this process were distorted.  15
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      16
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).      17
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      18
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Policies
When evaluating an applicant’s suitability for a security clearance, an
administrative judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the AG list potentially disqualifying
conditions and mitigating conditions. 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. An administrative
judge’s over-arching adjudicative goal is a fair, impartial and commonsense decision.
Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables
known as the “whole person concept.” An 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.
The United States Government (Government) must present evidence to
establish controverted facts alleged in the SOR. An 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 burden of proof is16
something less than a preponderance of evidence.  The ultimate burden of persuasion17
is on the applicant.  18
A person seeking access to classified information enters into a fiduciary
relationship with the Government based on 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). “The clearly consistent standard
 Id.      19
 Id.      20
 Executive Order 10865 § 7.      21
 AG ¶ 12.      22
 Id.      23
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indicates that security clearance determinations should err, if they must, on the side of
denials.”  Any reasonable doubt about whether an applicant should be allowed access19
to sensitive information must be resolved in favor of protecting such information.  The20
decision to deny an individual a security clearance is not necessarily a determination as
to the loyalty of an applicant,  nor does it reflect badly on that person’s character. It is21
merely an indication that an applicant has not met the strict guidelines the President
and the Secretary of Defense have established for issuing a clearance.
Based upon consideration of the evidence, I find Guideline D (Sexual Behavior)
and Guideline E (Personal Conduct) to be the most pertinent to the case. Conditions
pertaining to these adjudicative guidelines that could raise a security concern and may
be disqualifying, as well as those which would mitigate such concerns, are set forth and
discussed below.
Analysis
Guideline D – Sexual Behavior
Under Guideline D, “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.”  It further states that “no adverse inference concerning the standards in22
this Guideline may be raised on the basis of sexual orientation of the individual.”  The23
Directive sets out several potentially disqualifying conditions under this Guideline. 
For a decade, from 1996 until at least 2006, Applicant frequented a website
featuring a wide variety of sexual components. He regularly visited the website, viewed
its contents, and used it and telephonic technology to conduct sexual “chats.” These
“chats” included a sex “chat” with a minor. He persisted with the “chat” function on the
website and eventually had a second conversation of a sexual nature with an individual
who was apparently underage. Through the website, he also viewed an image of child
pornography. While continuing to use the website, he witnessed similar images. Such
facts give rise to Sexual Behavior Disqualifying Conditions AG ¶ 13(a) (“sexual behavior
of a criminal nature, whether or not the individual has been prosecuted”), ¶ 13(c)
(“sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or
duress”), and ¶ 13(d) (“sexual behavior of a public nature and/or that reflects lack of
discretion or judgment”). 
 Applicant’s Response to the SOR. There is no evidence as to whether he has since resumed this      24
behavior at the website at issue or any other websites.
 Applicant’s Response to the SOR regarding SOR allegation ¶ 1(c).      25
 See, e.g., Response to FORM at 6.      26
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Applicant’s on-line activities with the adult website at issue occurred during his
30s and 40s. Consequently, Sexual Behavior Mitigating Condition (SB MC) AG ¶ 14(a)
(“the behavior occurred prior to or during adolescence and there is no evidence of
subsequent conduct of a similar nature”) does not apply.
Applicant used the adult website from about 1996 until at least 2006.  As well,24
he sought sexual gratification through his use of phone sex lines and the website until
at least 2005.  After he first discovered minors could and would actively use the adult25
website at issue and learned that illegal images were periodically available on the site,
he continued to visit the site. He did so in the knowledge that he could not verify the age
or sex of those with whom he had sex chats or predict when illegal imagery would be
posted for access.  26
The government argues that Applicant returned to the website after he first
discovered “crime was afoot.” Applicant stressed that underage contacts and illegal
imagery were not pervasive and that he tried avoid them, despite the fact he also
acknowledged one could not discern a participant’s true age or gender. Regardless,
both the methods he used to avoid such content and the website’s measures at
censorship were imperfect. As a result, he had a subsequent conversation with a minor
and he viewed more illegal images. While these incidents were intermittent, his initial
experiences gave him sufficient warning that such content was sporadically available
and relatively unavoidable. 
Whether Applicant chooses to properly use adult websites or sex chats for his
own personal entertainment is not the issue. The issue is his voluntary and continued
use of an adult site he knew to be insufficiently censored and which he knew could
intermittently or randomly feature illegal or inappropriate content. As noted above, a
person seeking a security clearance enters into a fiduciary relationship with the
Government based on trust and confidence. This relationship continues after working
hours. It is founded on trust and the expectation that an applicant reliably and
consistently demonstrates sound judgment. In continuing to revisit the website for
nearly 10 years, Applicant did little more than repeatedly throw the dice in the hopes he
could enjoy uncensored sex chat while avoiding illegal contacts. Such behavior
demonstrates unreliable conduct and poor judgment that is not mitigated under 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”).
At this point, Applicant’s wife, professional superiors, and some close friends
know of his adult activities. Now that they know of his use of what he depicts as
 This mitigating condition would not necessarily apply to friends, family, professional colleagues, or other      27
social contacts, past or future, not explicitly enumerated above.
 AG ¶ 15.      28
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“mainstream” entertainment, he feels he is no longer vulnerable to exploitation by
anyone seeking details regarding any classified or sensitive information. To the extent
his wife, his current employers, and some selected friends know of his activities, SB MC
AG ¶ 14(c) (“the behavior no longer serves as a basis for coercion, exploitation, or
duress”) applies in part.  With regard to telephonic or on-line sexual activities or27
content not involving minors, whether solitary or interactive, SB MC AG ¶ 14(d) (“the
sexual behavior is strictly private, consensual, and discreet”) applies.
Guideline E – Personal Conduct
Under Guideline E “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.”  Here, Applicant repeatedly used modern technology to engage in sexual28
“chats” and view sexual images. He engaged in these activities in his pursuit of
entertainment and, at times, for sexual gratification. His activities are now known by a
handful of individuals, including his wife, workplace associates, and “to a lesser degree
several of [his] closest friends.” While these individuals may know of Applicant’s
activities, there are insufficient facts of record from which to discern whether this
information has affected how these individuals view Applicant as an individual,
colleague, or peer. Moreover, the selectivity of this finite circle of intimates is notable
and fails to demonstrate that Applicant is actually comfortable with such knowledge
being possessed by others within his personal, professional, or civic circles.
Consequently, Personal Conduct Disqualifying Condition AG ¶ 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, or (2)
while in another country, engaging in any activity that is illegal in that country or that is
legal in that country but illegal in the United States and may serve as a basis for
exploitation or pressure by the foreign security or intelligence service or other group”)
applies.
Applicant’s conduct continued for close to a decade, lasting through at least
2006. During that time, he was exposed to illegal content or compromising situations on
multiple occasions. Therefore, 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”) does not apply. 
Moreover, while Applicant’s admissions note that he curtailed his use of
telephonic sex lines in 2005 and his visits to the website at issue in 2006, and while
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there is no evidence he preserved illegal content on his computers, there is no
affirmative commitment expressed that he will not again return to that website or to any
similar website on which illegal or compromising materials may be a regular or
randomly intermittent feature. Further, there is no evidence that he has disclosed, or is
either prepared or willing to disclose, the facts of record to other individuals within his
spheres of contact who have not already been informed of his activities. Consequently,
PC MC AG ¶ 17(e) (“the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress”) does not apply. None of the other
mitigating conditions under this guideline apply.
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 an 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. As noted above, the
ultimate burden of persuasion is on the applicant seeking a security clearance. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the “whole person”
factors. Multiple facts speak in Applicant’s favor. Applicant is a mature man with
impressive educational and professional credentials. He devoted a significant period of
his life to being a military reservist. When asked by investigators whether his computers
could be examined, he voluntarily complied. In the end, apparently no illegal materials
were discovered and Applicant was essentially vindicated of maintaining such materials
on his computers. Although he chose an administrative determination in lieu of a
hearing, his submissions demonstrate that he is a capable advocate. In foregoing a
hearing, however, the record consists only of written documents, precluding the
opportunity for inquiry to be made in those areas in which questions remain and
concerns linger. 
Multiple facts also exist which speak against Applicant. While he was fully within
his rights to pursue adult entertainment in the privacy of his home, he chose to
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repeatedly revisit an adult website on which he had engaged in sexual chatter with a
minor and on which he had encountered an illegal image of a pornographic nature.
Rather than avoid that site and move to a better monitored adult service, he regularly
returned to the same website for a decade. During that time, he again encountered a
presumably underage chat partner and more illegal images. While such illegal content
was neither pervasive nor a regular feature on the site, he was aware that censorship of
such material was imperfect and not foolproof. Each time he accessed the site, he
voluntarily assumed the risk that he would again be compromised with similar material
or contact. Trust and confidence, however, are not built on risk-taking. It is built on the
demonstrated exercise of reliability, trustworthiness, and sound judgment. Given the
facts and arguments submitted, such qualities were not sufficiently demonstrated so as
to overcome lingering security concerns. Any reasonable doubt about whether an
applicant should be allowed access to sensitive information must be resolved in favor of
protecting such information. Because Applicant’s sexual behavior and personal conduct
security concerns remain unmitigated, I conclude it is not clearly consistent with
national security to grant Applicant a security clearance. Clearance is denied. 
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, Guideline D: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Paragraph 1, Guideline E: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: For 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 a security clearance.
Clearance is denied.
ARTHUR E. MARSHALL, JR.
Administrative Judge