DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 08-11136 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Ray T. Blank, Jr., Esquire, Department Counsel 
For Applicant: Kenneth R. Young, Jr., Esquire 
 
 
 
______________ 
 
Decision 
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CREAN, Thomas M., Administrative Judge: 
 
Applicant submitted a security clearance application (SF 86) on June 11, 2008. 
The security clearance application was submitted because Applicant had recently 
retired from active military service and was commencing work for a defense contractor. 
On May 19, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a 
Statement of Reasons (SOR) to Applicant detailing security concerns for sexual 
behavior, personal conduct, and criminal conduct under Guidelines D, E, and J, 
respectively. The security concerns arose out of the same two incidents in July 2006. 
The action was taken under Executive Order 10865, Safeguarding Classified 
Information within Industry (February 20, 1960), as amended; Department of Defense 
Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program 
(January 2, 1992), as amended (Directive), and the revised adjudicative guidelines (AG) 
promulgated by the President on December 29, 2005, and effective within the 
Department of Defense for SORs issued after September 1, 2006. Applicant 
acknowledged receipt of the SOR on May 26, 2008. 
  
 Applicant answered the SOR on May 29, 2009. He admitted all factual 
allegations under the three guidelines. He requested a hearing before an administrative 
 
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judge. Department Counsel was prepared to proceed on July 21, 2009, and I was 
assigned the case on July 24, 2009. Applicant's counsel agreed to a hearing date of 
September 2, 2009, and a Notice of Hearing was issued on August 13, 2009. The 
hearing convened as scheduled. Department Counsel offered six exhibits, marked Gov. 
Ex. 1 through 6 which were received without objection. Applicant testified on his own 
behalf and offered ten exhibits, marked App. Ex. A through J, and received without 
objection. The record was left open for Applicant to submit additional documents. 
Applicant timely submitted one document, marked and received as App. Ex. K. DOHA 
received the transcript of the hearing (Tr.) on September 9, 2009. Based on a review of 
the case file, pleadings, exhibits, and testimony, eligibility for access to classified 
information is denied. 
 
Findings of Fact 
 
 After a thorough review of the pleadings, transcript, and exhibits, I make the 
following essential findings of fact. Applicant admitted all of the factual allegations raised 
in the SOR.  
 
Applicant is 44 years old and has been a military analyst for a defense contractor 
for approximately one year. He graduated from high school in 1983, and college with a 
Bachelors of Science degree in 1987. He has a master's degree in aeronautical 
engineering. He participated in the Reserve Officers Training Program (ROTC) in 
college. Upon graduation and commissioning, he entered active duty with the Air Force, 
and served for over 20 years on active duty in the Air Force as an F-16 pilot. He held a 
top secret clearance, a sensitive compartmented information access, and a special 
access security clearance while on active duty. He retired from active duty at the rank of 
lieutenant colonel with an Honorable Discharge in May 2008. He is a command pilot 
with 4,035 flight hours in the F-16. He received the Distinguished Flying Cross, six 
meritorious service medals, two air medals, three aerial achievement medals, and other 
service awards. His first wife was severely injured in an accident in October 2000, and 
passed away in January 2001 leaving Applicant with three young daughters. He 
remarried in 2002. He and his current wife have a five year old son (Tr. 25-28, 37-39, 
45-47, 63-67; Gov. Ex. 1, e-QIP, dated June 11, 2008; Gov. Ex. 5, DD Form 214, dated 
May 31, 2008). 
 
While still on active duty, Applicant's wife asked him to stop at a store and pick-
up some photographs she left for processing. While in the store, Applicant, who was 
wearing his military flight uniform, used the camera on his new cell phone to take a 
picture under the skirt of a female store patron. The female patron felt Applicant's 
presence and challenged him, asking, if he had touched her. Applicant vehemently 
denied any inappropriate action and moved away from the woman to another part of the 
store. The woman followed Applicant around the store and observed him take another 
picture under the skirt of another female patron. She again loudly challenged Applicant, 
and alerted the other female patron. Applicant left the store, and was observed looking 
at and working with his cell phone. Local police were notified, and Applicant was 
 
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identified though examination of the store's surveillance cameras, and the receipt for the 
photographs that he picked up for his wife.  
 
A few weeks later, Applicant was asked to report to the local police station. He 
went to the local police station accompanied by his commander. Applicant was 
apprehended and his cell phone and computer seized at his house by the police 
pursuant to a search warrant. When the police downloaded the camera phone, the 
pictures taken in the store on the cell phone had been erased, but there were pictures 
taken of Applicant's wife while she was in the shower. Applicant's wife did not know of 
the pictures, and did not give Applicant permission to photograph her in the shower. 
Applicant admits he erased the picture taken of the women in the store and admits 
taking the pictures of his wife without her permission after he had taken the pictures in 
the store. At the request of the police, Applicant called the women and apologized for 
his actions (Tr.30-34, 69-76; Gov. Ex. 2, Answers to Interrogatories, dated January 26, 
2009; Gov. Ex. 6, Air Force Office of Special Investigations Report, dated April 16, 
2009). 
 
During the time preceding his apprehension, Applicant stated he was undergoing 
a great deal of stress concerning his career. He had been requested to take a command 
assignment at another base but his wife refused to accompany him. He decided not to 
take the assignment, instead taking an assignment at his local base that would enable 
him to complete his service career. He knew at the time that these decisions would 
mean he had little if any chance of advancing in rank.  
 
His oldest children as well as his wife's family are aware of the July 2006 incident 
and his arrest. He has not told his parents about the July 2006 incident as he sees no 
reason to involve them. Applicant attributed his action to poor judgment. He states he 
made changes since July 2006. He stated he gave the general officers that still mentor 
him and are his supervisors his assurance that it would not happen again (Tr. 27-30; 44-
45, 47-51). 
 
Applicant was indicted by a grand jury for sexual voyeurism. He agreed with the 
local prosecutor to being placed in a pre-trial intervention program. He received a 
counseling assessment that he was eligible to enter the pre-trial intervention program. 
He completed a counseling program as part of the intervention program. His wife also 
participated in the counseling. He was evaluated as stable emotionally, with no basis for 
any psychological diagnosis, and no current or anticipated need for any continued 
psychotherapeutic support. He was further evaluated as fully able to function in his work 
with no basis for concern that he would be subject to any particular level of duress 
related to the incident. The evaluation concluded that there is no clear basis to indicate 
Applicant would be prevented from performing his job in an excellent manner and 
without any external limits. No potential for similar behavior was identified. He 
completed the program, and his record was expunged (Tr. 57-61; App. Ex. B, Letter 
Evaluation, dated August 31, 2009; App. Ex. H, Order, dated December 30, 2008; App. 
Ex. K, Criminal Law, Chapter 22, State statute). 
 
 
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After his arrest, Applicant was barred from Special Access Programs, but he was 
permitted to continue with his access to classified information (App. Ex. I, Letter, dated 
October 4, 2006; App. Ex. J, Memorandum, dated October 4, 2006). He received a 
Letter of Reprimand from his Commanding General. He remained on operational flight 
status until his retirement from the Air Force in May 2008 (Tr. 37-40; App. Ex. G, letter, 
dated June 1, 2009). 
 
An Air Force Lieutenant General wrote that he has known Applicant since 
Applicant joined his squadron in 1989. Applicant distinguished himself and was an 
exceptional officer and pilot. Applicant also served as his wing man. He notes that the 
incident in question was the result of poor judgment and that Applicant took full 
responsibility and corrective positive action. He recommends Applicant be granted 
access to classified information (App. Ex. C, letter, dated August 11, 2009). 
 
Another Air Force officer wrote that he has known Applicant and worked with him 
for many years. He also works with Applicant in his civilian capacity since his retirement. 
He recommends Applicant for any leadership position in industry or businesses that 
contract with the Department of Defense. Applicant has shown leadership, patriotism, 
and unquestioned performance at the highest level. He has complete trust in Applicant 
(App. Ex. D, Letter, dated September 1, 2009). 
 
Applicant's present father-in-law writes that he has known Applicant and his 
family for many years and has been directly associated with Applicant since he married 
his daughter in 2002. He knows Applicant to be hard working, reliable, and respected. 
He does not believe Applicant presents any security risk and recommends him as 
worthy of the highest national security clearance (App. Ex. E, Letter, dated August 4, 
2009). 
 
A former Air Force Brigadier General who is Applicant's supervisor in their civilian 
capacity writes that he has known Applicant for many years. Applicant has a reputation 
for trustworthiness, loyalty, and patriotism. He knows of the July 2006 incident and is 
impressed with how Applicant took responsibility for his actions and positive corrective 
action (App. Ex. F, Letter, dated August 10, 2009). 
 
The Commanding General, who issued Applicant the Letter of Reprimand for the 
July 2006 incident, wrote that he has known Applicant for over 15 years and that the 
incident in July 2006 was an aberration that Applicant has aggressively self-corrected. 
Applicant showed strong moral character to make effective corrections in his actions. 
He strongly recommends that Applicant be granted access to classified information 
(App. Ex. G, Letter, dated June 1, 2009).  
 
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 
 
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potentially disqualifying conditions and mitigating conditions, which are required to 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 “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. 
 
Analysis 
 
 The security concerns raised for Applicant are all from the same incident. 
Security concerns raised for sexual behavior, criminal conduct, and personal conduct 
are the same for each. The security concern involves questions of Applicant's reliability, 
judgment, and trustworthiness. Sexual behavior that involves a criminal offense 
indicates a personality or emotional disorder, reflecting lack of judgment or discretion 
which can raise questions about the individual's reliability, trustworthiness, and ability to 
protect classified information (AG ¶ 12). Criminal activity creates doubt about a person's 
judgment, reliability, and trustworthiness. By its very nature, it calls into question a 
person's ability or willingness to comply with laws, rules, and regulation (AG ¶ 30). 
 
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Personal conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions about an 
individual's reliability, trustworthiness, and ability to protect classified information. Since 
the security concerns are similar, the concerns will be discussed as a group. 
 
 Applicant admits and the information clearly establishes that he committed the 
criminal act of sexual voyeurism under state statute by taking pictures with a cell phone 
camera under the skirts of two females. He also took pictures of his wife in the shower 
without her permission but this act is not alleged as criminal activity. It does show a 
continued course of conduct by Applicant. This criminal offense establishes the Sexual 
Behavior Disqualifying Condition (SB DC) AG ¶ 13(a) (sexual behavior of a criminal 
nature, whether or not the individual has been prosecuted). The criminal act is a felony 
offense for which Applicant was indicted and establishes Criminal Conduct Disqualifying 
Condition (CC DC) ¶ 31(a) (a single serious crime or multiple lesser offenses). The 
incident also establishes Personal Conduct Disqualifying Condition (PC DC) AG ¶ 16(c) 
(credible adverse information in several adjudicative issue areas that is not sufficient for 
an adverse determination under any other single guideline, but which, when considered 
as a whole, supports a whole-person assessment of questionable judgment, 
untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and 
regulation, or other character issues indicating that the person may not properly 
safeguard protected information). 
 
 The government produced substantial evidence by way of court documents, 
investigative reports, and Applicant's admission and statements to establish the 
disqualifying condition in AG ¶¶ 13(a), 31(a), and 16(c). The burden shifts to Applicant 
to produce evidence to rebut, explain, extenuate, or mitigate the security concerns 
under sexual behavior, criminal conduct, and personal conduct. An applicant has the 
burden to refute an established allegation or prove a mitigating condition, and the 
burden to prove or disprove it never shifts to the government. 
 
Each of the alleged security concerns has a similar mitigating condition. These 
mitigating conditions involve the passage of time, the unusual nature of the action 
causing security concerns, the likelihood of recurrence, and whether the actions cast 
doubt on the individual's reliability, trustworthiness, and judgment. I considered Criminal 
Conduct Mitigating Conditions (CC MC) ¶ 32(a) (so much time has elapsed since the 
criminal behavior happened, or it happened under such unusual circumstances that it is 
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, 
or good judgment); Sexual Behavior Mitigating Condition (SB MC) AG ¶ 14(b) (the 
sexual behavior happened so long ago, so infrequently, or under such unusual 
circumstances, that it is unlikely to recur and does not cast doubt on the individual's 
current reliability, trustworthiness, or good judgment); and Personal Conduct Mitigating 
Condition (PC MC) AG ¶ 17(c) (the offense is so minor, or so much time has passed, or 
the behavior is so infrequent, or it happened under such unique circumstances that it is 
unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, 
or good judgment). The incident took place in July 2006, and Applicant was placed in a 
pre-trial intervention program that he successfully completed in December 2008. The 
 
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incident took place only two years ago. Applicant completed the pre-trial intervention 
program only eleven months ago. Even though Applicant has completed the pre-trial 
intervention program and all counseling, two years is not a long time to establish 
successful rehabilitation for a felony offense. While Applicant cites the stress he was 
under in July 2006 because of his career choices and issues at the time, there were no 
unusual circumstances causing Applicant to commit the offense. He was not forced into 
the action and his judgment was not impaired by any substance abuse or other 
circumstances. While Applicant appears on the path to rehabilitation for his sexual 
deviant and criminal conduct, he has not provided sufficient information to establish that 
it would not happen again. After being confronted in the store by the women he 
inappropriately photographed, he went home and took inappropriate photographs of his 
wife without her permission. Accordingly, he has not established these mitigating 
conditions for the security concerns alleged. 
 
Successful rehabilitation is also a factor to consider in mitigating the security 
concerns. There is no rehabilitative mitigating condition for deviant sexual behavior. 
However, I have considered Criminal Conduct Mitigating Condition (CC MC) AG ¶ 32(d) 
(there is evidence of successful rehabilitation, including but not limited to the passage of 
time without recurrence of criminal activity, remorse or restitution, job training or higher 
education, good employment record, or constructive community involvement); and 
Personal Conduct Mitigating Condition (PC MC) AG ¶ 17(d) (the individual has 
acknowledged the behavior and obtained counseling to change the behavior or taken 
other positive steps to alleviate the stressors, circumstances, or factors that caused 
untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely 
to recur). Applicant always acknowledged his behavior to investigative and military 
authorities, and never denied he did something wrong. He has not been involved in any 
conduct that would raise additional security concerns since the incident in July 2006. He 
successfully completed the pre-trial intervention program, and faithfully attended 
counseling. These are signs of successful rehabilitation. However under the 
circumstances that the offense was committed only two years ago and the pre-trial 
intervention was only completed about eleven months ago, it is too soon to determine 
that he has been successfully rehabilitated. Applicant has not presented sufficient 
information to mitigate security concerns for criminal conduct, sexual behavior, and 
personal conduct.   
 
Whole Person Analysis  
 
 Under the whole person concept, the Administrative Judge must evaluate an 
applicant’s security eligibility by considering the totality of the applicant’s conduct and all 
the circumstances. An administrative judge should consider the nine adjudicative 
process factors listed at AG ¶ 2(a):  
 
(1) the nature, extent, and seriousness of the conduct; (2) the 
circumstances surrounding the conduct, to include knowledgeable 
participation; (3) the frequency and recency of the conduct; (4) the 
individual’s age and maturity at the time of the conduct; (5) the extent to 
 
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which participation is voluntary; (6) the presence or absence of 
rehabilitation and other permanent behavioral changes; (7) the motivation 
for the conduct; (8) the potential for pressure, coercion, exploitation, or 
duress; and (9) the likelihood of continuation or recurrence. 
 
Under AG ¶ 2(c), the ultimate determination of whether to grant a security clearance 
must be an overall 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. I considered that Applicant served 
his country as a fighter pilot for over 20 years and had a very successful career. His life 
has had turmoil since his first wife died as the result of an automobile accident in 2002 
leaving him to raise three daughters. However, he married a woman who was a help to 
him with the daughters and gave him a son. He betrayed her trust in him by taking 
inappropriate pictures of her without her permission on his cell phone camera. I 
considered the letters of recommendation from his Air Force colleagues and general 
officers as to his trustworthiness, reliability, and good judgment. I considered his 
reputation for excellent work. I consider that Applicant held a top security clearance 
while on active duty with no security issues or violations.  
 
However, Applicant was a command pilot in the Air Force with 4,035 flight hours 
as an F-16 pilot. As such, he is taught to be deliberate, think through, and consider the 
outcome of his actions. He is taught not to be reckless and not undertake actions 
inadvertently. He is taught to be thoughtful and calculating about his actions. Applicant 
took deliberate actions when taking inappropriate pictures of two women he did not 
know in a store. He continued this inappropriate course of action even after being 
challenged by later taking inappropriate pictures of his wife without her permission. This 
conduct shows lack of judgment and discretion. Such a lack of judgment and discretion 
indicated that he may not be reliable, trustworthy, able to exercise good judgment, 
comply with laws, rules, and regulations, and protect classified information. While there 
are signs of rehabilitation, it is too soon to determine that Applicant has been 
successfully rehabilitated, and that sexual behavior or criminal and personal conduct 
problems will not arise in the future. Under these circumstances it is too soon to 
determine that he can be trusted with access to classified information. Overall, on 
balance the record evidence leaves me with questions or doubts as to Applicant’s 
eligibility and suitability at this time for a security clearance.  For all these reasons, I 
conclude Applicant has not mitigated the security concerns arising from his criminal and 
personal conduct, and sexual behavior. I make this determination knowing that 
Applicant held access to top level classified information while on active duty in the Air 
Force with no security violation incidents. 
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by section E3.1.25 of Enclosure 3 of the Directive, are: 
 
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 Paragraph 1, Guideline J:   AGAINST APPLICANT 
  Subparagraph 1.a:   Against Applicant 
 
 Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 2.a:   Against Applicant 
  Subparagraph 2.b:   Against Applicant 
 
 Paragraph 3, Guideline D:   AGAINST APPLICANT 
 
  Subparagraph 3.a:   Against Applicant  
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with national security to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge