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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 08-09480
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Richard Stevens, Esq., Department Counsel
For Applicant: J. Alexander Atwood, Esq.
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Decision
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MASON, Paul J., Administrative Judge:
Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility
for access to classified information is denied. 
Statement of the Case
On February 8, 2008, Applicant submitted a security clearance questionnaire
(SCA). On April 15, 2008, Applicant was interviewed by an investigator from the Office
of Personnel Management (OPM). On April 9, 2009, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing security
concerns under sexual behavior (Guideline D), personal conduct (Guideline E), and
criminal conduct (Guideline H). 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
made effective within the Department of Defense for SORs issued on or after
September 1, 2006. 
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Applicant answered the SOR on April 23, 2009. DOHA issued a notice of hearing
on June 3, 2009, and the hearing was held on June 23, 2009. At the hearing, four
government exhibits (GE 1 through GE 4) were admitted in evidence. Applicant
objected to a portion of GE 2 (the investigating officer’s affidavit) as hearsay (Tr. 13-15).
That objection was overruled. While the affidavit in GE 2 contains hearsay, it is admitted
in evidence as a business record generated by a police officer in the normal course of
his job duties and sworn to under oath before a state magistrate. It is well settled that
relevant hearsay may be admitted in DOHA administrative proceedings because the
Federal Rules of Evidence (FRE) serve as a guide. I find the affidavit contains relevant
hearsay evidence of the surrounding circumstances of the criminal offense on April 28,
2007, and, along with the remainder of GE 2, is admitted in evidence. 
Applicant and two witnesses testified. Two exhibits (AE A, AE B) were admitted
in evidence without objection to support Applicant’s case. DOHA received a copy of the
hearing transcript on July 7, 2009. 
Administrative Notice
Applicant was prosecuted under a state statute defining the victim as “any child
under the age of 16 years.” The criminal prosecution was dismissed because the victim
was 16 years old when the enticement occurred. I have taken administrative notice of
the existence of another state statute that applies to victims under the age of 18. This
statute, which was enacted in 1992, was in effect in April 2007, when Applicant enticed
his nephew for indecent purposes. For unknown reasons, the state did not indict
Applicant under the correct sexual offense statute.  
Findings of Fact
The SOR contains three allegations under the sexual behavior guideline, one
allegation under the personal conduct guideline, and one allegation under the criminal
conduct guideline. Applicant admitted the factual allegations of SOR ¶ 1, but denied his
conduct constituted sexual behavior as set forth in the guideline. He noted the charge
was dismissed and he was not given a hearing (answer to SOR). He admitted the
factual allegations of paragraph 2 and 3. Applicant’s admissions will be incorporated in
the following factual findings. 
Applicant, 45 years old, has been married to his wife for 14 years. He has three
children, ages 19, 15, and 13. He has been employed as a fleet mechanic by a defense
contractor since October 1988. He has held a security clearance since March 2004. He
seeks reinstatement of his security clearance. 
Sexual Behavior
Applicant’s 16-year-old nephew moved into Applicant’s home in November 2005
after the nephew’s father was incarcerated for murdering the nephew’s mother (Tr. 36).
Applicant’s wife thought their home would be a good location for the nephew (Tr. 38). 
 The State code provides ”a person commits the offense of enticing a child for indecent purposes when he1
solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child
molestation or indecent acts.” 
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On May 10, 2007, an investigator from the county sheriff’s department
interviewed Applicant’s 16-year-old nephew (victim). That interview is contained in an
affidavit attached to the booking report (GE 2). The victim stated that on April 28, 2007,
he was sitting in the living room watching a sexually explicit video involving young
women. Applicant sat down beside the victim and asked about four times if he could
sodomize or have oral sex with the victim (Id.). During the time Applicant was making
these requests (he made two requests while on his knees), he explained to the victim
that males sodomize better on other males than females do on males because males
are more aware of the feeling. The victim became sexually aroused by Applicant’s
stories and displayed his penis, but was concerned about the activity being detected.
Applicant locked all the doors to the home, and repeated his request to sodomize the
victim while he watched the video. The victim did not permit Applicant to sodomize him
(Id.). 
In his interview with the OPM investigator in April 2008, Applicant claimed that he
never solicited the victim for indecent purposes (GE 3, April 15, 2008 interview of
Applicant, at 4). Throughout the interview, Applicant essentially claimed that the criminal
charge resulted from a conversation he had with his nephew where he attempted to
address each sexual issue in a direct manner (Id. at 4-5). 
There is no admission in his April 2008 interview that Applicant admitted he tried
to give oral sex to his nephew. Rather, he stated that he learned through treatment that
because of his own childhood sexual experiences, he had been too direct in discussing
sexual issues with his nephew (GE 3, April 15, 2008, at 4-5), and he found more
appropriate ways of talking about sexual issues (Id.). 
Applicant explained at the hearing that the enticement for oral sex (though he did
not use the words identifying the criminal offense) occurred in an attempt to be as direct
as he could in explaining sexual issues to the victim, including what a ‘blow job’ was (Tr.
42). In addition, Applicant caught the victim masturbating earlier that day (Tr. 43). Until
his therapy (May 2007 to September 2008), Applicant testified he did not believe an
adult’s sexual relationship with a child was wrong because it was an event in life that felt
good (Tr. 44). Applicant never engaged in this kind of behavior with his children (Tr. 44-
45). Applicant appeared to change his position about the enticement for indecent
purposes by testifying that he knew at the time he attempted to engage in the conduct
with the victim in April 2007 that it was wrong (Tr. 48). 
On May 10, 2007 (SOR ¶ 1.a.), Applicant was arrested and charged with enticing
a child for indecent purposes. The charge was dismissed on November 21, 2007
because (1) the state declined to prosecute, and (2) the elements of the offense were
not met (AE A).  At the time of the sexual behavior, the victim was 16 years old, over1
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the age set forth in the statute. Following the second reason for the state’s decision not
to prosecute is the sentence, “Defendant is in treatment” (Id.).
Under SOR ¶ 1.b., Applicant attended individual treatment once a week from
May 2007 to December 2007 (AE 3; Tr. 21). The licensed clinical social worker (LCSW)
advised that group therapy would also benefit Applicant therapeutically. Applicant’s
insurance paid for the first 6 months of treatment, but he used his own funds to pay the
remaining 10 months of treatment as required by his treatment administrators (Tr. 23).
Applicant recalled the LCSW recommended that he attend about four months of group
therapy, but Applicant participated in group therapy for nine months (SOR ¶ 1.c.).
However, in a letter to DOHA describing Applicant’s participation in individual and group
therapy, the LCSW indicated that Applicant agreed to participate in treatment until the
LCSW determined he had completed treatment (GE 4, December 15, 2008, letter from
LSCW to DOHA). In concluding that Applicant did not successfully complete treatment,
the LSCW advised that Applicant’s “ability to participate in power struggles and be
oppositional to authority is definitely an issue he will have to work on. We see this as a
significant deficiency” (Id.).
Once every week for an hour between 3 p.m. and 6 p.m. in the afternoon (Tr.
39), Applicant drove to the individual/group therapy location about 35 miles from his
house and 45 miles from work (Tr. 39-40). He discontinued therapy in September 2008
when his wife needed help in caring for her parents who had been injured in a terrible
car accident (Tr. 21, 23). 
During individual treatment in November 2007, Applicant took the Abel
Assessment Test for Sexual Interest Interpretation  (Abel Sex Test, GE 4; Tr. 26).
The test is designed to assess the sexual interest of the testee based on reaction times
after viewing and rating slides of adults and children in different kinds and stages of
dress, and in different scenarios or situations. At the hearing, Applicant restated most of
the critical findings of the test. The most important finding of the test, as restated by
Applicant, was that he was sexually interested in adult females only (Tr. 27; GE 4).
The objective interpretations of the Abel Sex Test (GE 4) showed that
Applicant’s greatest sexual interest was in adult females and “does not appear to have a
persistent sexual attraction to children or adolescent males/females” (Id. at 4). 
Applicant believed that there were sexual incidents in his early life that led to his
behavior in April 2008 (Tr. 28). When he was 12 or 13 years old, his brother molested
him for about four months (Tr. 29). At age 15, one or two women in their 30s had sexual
relations with him for more than a year (Id.). His LCSW intimated that these earlier
incidents of molestation were misinterpreted by Applicant to be conventional, sexual
encounters during his teenage years (GE 4, Abel Sex Test at 4-5). 
When Applicant filled out the SCA, he answered one or two of the criminal
conduct questions incorrectly (GE 2). The reason for the errors is because of his
reading comprehension difficulties (Tr. 32). 
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Applicant has never had disciplinary problems at work (Tr. 25), and only one
minor arrest in 1983 (Tr. 26). He has never been involved in this kind of sexual behavior
in the past (Tr. 34). He has never had psychiatric or psychological counseling (Tr. 19). 
Character Evidence
Witness 1 is the group lead technician with 23 years of seniority. Applicant began
working at their employer in 1988, and, according to Witness 1, has been a good
employee, although Witness 1 has only seen Applicant sparingly in the last 10 years.
(Tr. 61) Witness 1 did not think there was much substance in the reason why Applicant
was put in jail in May 2007 (Tr. 59). He heard from other people the charges were
dismissed (Tr. 60). 
Witness 2 is the operations manager who has known Applicant for about 20
years. He has supervised Applicant for the last six years (Tr. 65), and they alternatively
invite each other over for occasional cookouts (65-66). Witness 2 is aware that criminal
charges against Applicant were dropped (Tr. 69).
Applicant’s yearly performance evaluations from 1991 through 2008 (AE B)
reflect favorable assessments as a self starter who exceeds requirements and learns
quickly. He demonstrates he is well informed and produces a product that shows good
workmanship (Id.). 
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 commonsense 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
¶ 12 of the AG sets forth sets forth the security concern related to sexual
behavior:
Sexual behavior that involves a criminal offense, indicates a personality or
emotional disorder, reflects a lack of judgement 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 th standards in this Guideline may be raised solely on the
basis of the sexual orientation of the individual. 
The sexual behavior guideline has two disqualifying conditions that apply to this
case:
AG ¶ 13(a) (sexual behavior of a criminal nature, whether or not the
individual has been prosecuted); and
AG ¶ 13(c) (sexual behavior that causes an individual to be vulnerable to
coercion, exploitation, or duress).
Applicant’s enticement of his nephew on April 28, 2007, was sexual behavior of a
criminal nature, even though the state charges were dismissed. Applicant could have
been prosecuted under the childhood sexual abuse statute for enticing a child under
age 18 for indecent purposes. AG ¶ 13(a) applies. 
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By enticing the victim for indecent purposes, Applicant violated his duty of care
and protection for his nephew to satisfy his own sexual desires. GE 2 conclusively
demonstrates Applicant would have accomplished his objective had his nephew
succumbed to Applicant’s constant appeals for sex. Applicant’s minimization of the
seriousness of his behavior, i.e., not admitting his sexual misconduct, continues to leave
him vulnerable to coercion and pressure as defined by in AG ¶ 13(c). 
The sexual behavior guideline lists two mitigating conditions that may be
applicable to this case:
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
AG ¶ 14(c) (the behavior no longer serves as a basis for coercion,
exploitation, or duress).
The enticement occurred in April 2007, less than three years ago. In February
2008, Applicant reported the charge on his SCA. In April 2008, Applicant provided an
interview and referred to the criminal offense as nothing more than a conversation he
had with his nephew where he attempted to explain sexual issues. Applicant even
denied he solicited his nephew. In December 2008, his LCSW wrote that Applicant did
not successfully complete treatment, and explained that he disagreed with Applicant’s
decision to stop treatment as there were power and authority issues he needed to deal
with. 
In his answer to the definition of sexual behavior set forth in SOR ¶ 1, Applicant
unambiguously stated that he did not entice his nephew for indecent purposes. His
denial and minimization of serious misconduct continue to cast doubt on his judgment
and reliability. His denial that the enticement occurred continues to serve as a basis for
exploitation and duress. AG ¶¶ 14(c) and 14(d) do not apply. Applicant’s favorable job
performance since 1991 has been examined along with the positive testimony from
Witnesses 1 and 2. Neither is sufficient to find the sexual behavior guideline in
Applicant’s favor. 
Personal Conduct (PC)
¶ 15 of the AG sets forth the concern of the personal conduct guideline:
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.
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The personal conduct guideline (AG ¶ 16) has one mitigating condition that may
apply: 
AG ¶ 16(e) (personal conduct, or concealment of information about one’s
conduct, that creates 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 U.S. and may serve as the basis for
exploitation or pressure by the foreign country or intelligence service or
group).
Applicant’s poor judgment in enticing his nephew for indecent purposes in April
2007, and then subsequently minimizing the seriousness of the conduct, causes him to
be vulnerable to coercion and duress as outlined in AG 16(e). 
The personal conduct guideline (AG ¶ 17) lists three mitigators that may apply to
the circumstances of this case:
AG ¶ 17(a) (the offense was 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); and
AG ¶ 17(d) (the individual has acknowledged the behavior and obtained
counseling to change the behavior or taken other positive steps to
alleviate stressors, circumstances, or factors that caused untrustworthy,
unreliable or other inappropriate behavior, and such behavior is unlikely to
recur); and 
AG ¶ 17(e) (the individual has taken steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress). 
AG ¶ 17(a) does not apply because the sexual behavior occurred less than three
years ago even though the behavior occurred on only one occasion. Applicant’s
equivocal statements about enticing his nephew in April 2007 continue to cast doubt on
his trustworthiness and judgment. 
AG ¶ 17(d) does not apply. Though Applicant acknowledged in his April 2008
interview that he had a conversation about sex with his nephew, Applicant claimed he
never solicited his nephew, a claim he repeated in his answer to the SOR. Though he
has participated in 16 months of counseling between May 2007 and September 2008,
the documentation from the treatment organization verifies that he did not successfully
complete the counseling. In addition, his LCSW believed he still had power struggles
and authority issues that had not been reconciled when he discontinued group therapy.
AG ¶ 17(d) applies on a limited basis because of his treatment. ¶ 17(e) does not apply.
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With Applicant’s belief he did not entice his nephew, he has not shown that he has
taken the necessary steps to reduce his vulnerability to coercion. AG ¶ 15 is resolved
against Applicant. 
Criminal Conduct (CC)
¶ 30 of the AG sets forth the security concern related to criminal conduct:
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 regulations.
The criminal conduct guideline has two applicable disqualifying conditions:
AG ¶ 31(a) (a single serious crime or multiple lesser offenses); and 
AG ¶ 31(c) (allegation of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted). 
On April 28, 2007, Applicant engaged in criminal conduct when he tried to give
his nephew oral sex. While his nephew may have asked Applicant several questions
about sexual acts, including oral sex, Applicant exhibited extremely poor judgment in
repeatedly trying to show his nephew what oral sex was, even descending to a kneeling
position to achieve his objective. AG ¶¶ 31(a) and 31(c) apply even though the charges
were dismissed. As noted in Administrative Notice, Applicant’s conduct meets the
elements of the state childhood sexual abuse statute applying to victims under the age
of 18. 
The criminal conduct guideline has two mitigating conditions that may apply.
AG ¶ 32(a) (so much time has passed since the criminal behavior
happened, or it happened under such circumstances that it is unlikely to
recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment); and  
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 development). 
Applicant’s enticement of his nephew occurred less than three years ago. His
denial of the full scope of his criminal misconduct sparks continuing concern about his
judgment that has not been lessened by his exculpatory statements during and after his
treatment between May 2007 and September 2008. AG 32(a) does not apply. 
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AG ¶ 32(d) identifies some elements of successful rehabilitation. Successful
rehabilitation hinges on whether the individual fully realizes the consequences of his
actions. Applicant has not demonstrated he is fully cognizant of the seriousness of his
conduct. Applicant’s 16 months of treatment helped him understand the
inappropriateness of his past sexual experiences with his brother and older women,
while discovering more appropriate ways of discussing sexual issues. However, the
LCSW found that Applicant did not successfully complete treatment. Applicant’s
favorable job performance justifies limited application of AG ¶ 32(d), but does not
overcome the adverse evidence under AG ¶¶31(a) and 31(c).
Whole Person Concept 
¶ 2(c) indicates the ultimate determination of whether to grant a security
clearance must be an overall commonsense judgment based upon careful consideration
of the whole person concept. Nine general policy factors under AG ¶ 2(a) define the
Whole Person Concept as follows: 
(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 is voluntary; (6) the presence or absence of
rehabilitation; (7) the motivation for the conduct; (8) the potential for
pressure, coercion, exploitation, or duress; and, (9) the likelihood of
continuation or recurrence.
Applicant’s record of good employment weighs in his favor. The testimony of
Witness 1 and 2 substantiate his good performance evaluations. His favorable evidence
and lack of a criminal record show some evidence of mitigation.
However, Applicant’s criminal, sexual misconduct was serious. His strong belief
he did not solicit or entice his nephew in April 2007 is contradicted by his admission at
the hearing that knew the conduct was wrong. The contrasting statements foster
continuing concern that Applicant does not accept the gravity of his conduct. Given his
failure to successfully complete his treatment, Applicant has provided insufficient
evidence for me to confidently conclude this kind of conduct will not be repeated in the
future. Applicant’s evidence in mitigation does not overcome the adverse evidence
under the sexual behavior, personal conduct, and criminal conduct guidelines. 
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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 Applicant
Subparagraph 1.c. Against Applicant
Paragraph 2 (Personal Conduct, Guideline E): AGAINST APPLICANT
Subparagraph 2.a. Against Applicant
Paragraph 3 (Criminal Conduct, Guideline J) AGAINST APPLICANT
Subparagraph 3a. Against Applicant
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