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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 08-10745
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: 
Melvin A. Howry, Esquire, Department Counsel
Jeff Nagel, Esquire, Department Counsel
For Applicant:
Joseph Testan, Esquire
July 27, 2010
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP), on July 30, 2008. (Government Exhibit 1.) On February 22, 2010, the Defense
Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing
the security concerns under Guidelines J (Criminal Conduct) and D (Sexual Behavior)
concerning Applicant. 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
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 answered the SOR in writing on March 15, 2010, and requested a
hearing before an Administrative Judge. Department Counsel was prepared to proceed
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on April 19, 2010. This case was assigned to me on April 22, 2010.  DOHA issued a
notice of hearing on May 3, 2010, and I convened the hearing as scheduled on June 9,
2010. The Government offered Government Exhibits 1 through 7, which were received
without objection. Applicant testified on his own behalf, called two additional witnesses,
and submitted Applicant Exhibits A through K, which were also received without
objection. DOHA received the transcript of the hearing, and the record closed, on June
29, 2010. Based upon a review of the case file, pleadings, exhibits, and testimony,
eligibility for access to classified information is denied.
Procedural Rulings
Request for Administrative Notice
At the request of both parties, Official Notice was taken of various state criminal
statutes referenced in this case. Copies of the statutes in question are included in the
record as Official Notice Documents I and II. (Transcript at 39-43.)
Amendment to the SOR
On April 22, 2010, the Department Counsel sent a “Notice of Amendment to the
Statement of Reasons” to the Applicant. The Government proposed to amend the SOR
by adding an allegation under Guideline E, Personal Conduct. In a letter dated May 3,
2010, Applicant’s counsel objected to the amendment. 
At the hearing in this matter, both parties were heard. Applicant’s objection was
overruled and the SOR amended to add Paragraph 3 under Guideline E. (Transcript at
54-58.) The impact of this amendment will be discussed under “Findings of Fact” and
“Conclusions,” below.
Findings of Fact
The Applicant is 27 and single.  He is employed by a defense contractor and
seeks to obtain a security clearance in connection with his employment.
Guideline J - Criminal Conduct
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he has engaged in criminal conduct.
Guideline D - Sexual Behavior
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he has engaged in inappropriate or illegal sexual behavior, which is
related to his criminal conduct.
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Guideline E - Personal Conduct
The Government alleges in this paragraph that Applicant is ineligible for
clearance because his criminal conduct, and related sexual behavior, shows poor
judgment, irresponsibility or untrustworthiness.
In late 2007, Applicant became involved in an internet relationship with a person
who turned out to be a 15 year old boy (Boy). The Boy had indicated over the internet
that he was interested in having a sexual relationship with an older man. At that time
Applicant was 24. 
Applicant and the Boy soon began meeting each other in person. Applicant
stated to an investigator from the Office of Personnel Management:
Some time after, exact date is unknown, [the Boy] initiated some
groping. Some time after, exact date is unknown, things progressed, and
[the Boy] and I had oral sex on 2 occasions. On both occasions, [the Boy]
and I performed oral sex on each other. Both sexual encounters occurred
several months apart in my vehicle. (Government Exhibit 3 at 1.)
Applicant was subsequently arrested by the police and charged with 1) Lewd Act
Upon Dependent Adult, 2) Oral Copulation With Person Under 16, and 3) Lewd Act
Against Child 14/15, all felonies.  On December 9, 2008, he plead guilty to an amended
charge of Oral Copulation with a Person Under Age of 18, a misdemeanor. On January
30, 2009, he was sentenced to three years probation, fined, 20 days of community
service, and ordered to complete one year of therapy. (Government Exhibits 4 and 7;
Applicant Exhibit J.)
Applicant made a motion to have his probation terminated early by the court. The
motion was successful, and the probation was terminated on May 27, 2010. (Applicant
Exhibit I.) Applicant also completed the one year of therapy on December 16, 2009.
(Applicant Exhibit A.)
At the recommendation of his primary therapist, Applicant has continued therapy
with a clinical psychologist. As of May 29, 2010, Applicant and the psychologist had 18
sessions together. The psychologist writes:
While [Applicant] had initially taken some responsibility for his
inappropriate sexual acts, he saw himself as the passive recipient of his
underage victim’s sexual advances. He now understands that he was in
the powerful position as a result of his age. [Applicant’s] taking, clear
unequivocal responsibility for his role in this affair is a noteworthy step.
.      .      .
[Applicant] should continue in therapy for an extended period of
time. I believe that with support, greater insight, and attendant social skills
Applicant’s written description, and hearing testimony, frankly describes the course of his relationship with1
the Boy. For purposes of this Decision, while it is unnecessary to describe the relationship in depth, I have
considered all of the evidence in making this Decision.
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training, the chance of a recurrence of his illegal sexual acts is quite low. I
say this with confidence partly because of the advances he has already
made, and partly because his arrest and the potential consequences for
his future life have seriously frightened him. (Applicant’s Exhibit B.) (See
Transcript at 74-75.)
At the hearing, Applicant was asked why he didn’t end his relationship with the
Boy after each sexual contact, when he admitted knowing the contact was illegal. He
said, “It felt good. I enjoyed it. It fulfilled some sort of need with me and I don’t think I
was really thinking about it too much either.” (Transcript at 186.) (See Transcript at 67,
144.)1
Mitigation
Applicant’s father, and a friend, testified for him. Applicant is described as a good
son, who understands the issues of what he did. (Transcript at 12.) His friend describes
Applicant as someone who is “very responsible, very ethical.” (Transcript at 19.)
A letter was also submitted from his step-mother.  She states that he is “reliable
and trustworthy.” (Applicant Exhibit H.) 
Applicant submitted documentary evidence showing that he is a highly respected
employee.  (Applicant Exhibits E and F.) Evidence was also submitted showing that the
Applicant kept his employer fully and promptly informed of the proceedings in this case.
(Government Exhibit 5; Applicant Exhibits D and G.)
Policies
When evaluating an Applicant’s suitability for a security clearance, the
Administrative Judge must consider the 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 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 over-arching
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. In addition, the Administrative Judge may also rely on his own common sense,
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as well as his knowledge of the law, human nature, and the ways of the world, in
making a reasoned 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.
 Finally, as emphasized by President Eisenhower in Section 7 of Executive Order
10865, “Any determination under this order . . . shall be a determination 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 J - Criminal Conduct
Guideline D - Sexual Behavior
Guideline E - Personal Conduct
The security concern relating to the guideline for Criminal Conduct is set out in
AG & 30:      
Criminal activity creates doubts 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.
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The security concern relating to the guideline for Sexual Behavior is set out in AG
¶ 12:
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 of this Guideline may be raised solely
on the basis of the sexual orientation of the individual.
The security concern relating to the guideline for Personal Conduct is set out in
AG & 15:      
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.
The Applicant was involved in criminal, sexual activity with a minor in 2007/2008,
which resulted in the Applicant being arrested, charged with three felonies, and
convicted of a misdemeanor.  AG ¶ 31(a) under Guideline J applies to this case, stating
that a disqualifying condition is “a single serious crime or multiple lesser offenses.”
Two of the mitigating conditions also may apply and have been considered.
They are AG ¶ 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”; 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
involvement.” 
The Applicant’s sexual misconduct occurred just over two years ago. His
probation was just terminated just shortly before the hearing. While the Applicant does
take some responsibility for his acts, his testimony, and the letter from his psychologist,
show a man who has had great difficulty admitting his actions with an underage child
were wrong, and his fault. Not enough time has passed for me to be sure similar
misconduct will not occur in the future. Paragraph 1 is found against the Applicant.
Turning to Guideline D, I find that all of the disqualifying conditions apply to this
case. AG ¶ 13(a), “sexual behavior of a criminal nature, whether or not the individual
has been prosecuted”; AG ¶ 13(b), “a pattern of compulsive, self-destructive, or high
risk sexual behavior that the person is unable to stop or that may be symptomatic of a
personality disorder”; AG ¶ 13(c), “sexual behavior that causes an individual to be
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vulnerable to coercion, exploitation or duress”; and ¶ 13(d), “sexual behavior of a public
nature and/or that reflects a lack of discretion or judgment.”
The evidence shows that Applicant engaged in an inappropriate sexual
relationship with an underaged person. It was criminal, high risk sexual behavior that
was symptomatic of a personality disorder. In addition, by its very nature it subjected the
Applicant to possible coercion, exploitation or duress. Finally, in that the sexual acts
occurred in his automobile they were of a public nature. Finally, the entire relationship
reflects a severe lack of judgment.
I have examined the mitigating conditions and find that only AG ¶ 14(c)
marginally applies, “the behavior no long serves as a basis for coercion, exploitation or
duress.” The Applicant has kept his employer, and through them the Government, fully
informed of the progress in his case.
AG ¶ 14(b) does not apply. That condition states it may be mitigating when “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.” The incidents in this case
occurred slightly over two years ago. As described above, the Applicant’s treating
psychologist states Applicant requires an extensive period of treatment, and only now
has begun to understand his responsibility as a then 24 year old for having sex with a
15 year old. I find that the conduct continues to cast doubt on the Applicant’s reliability,
trustworthiness and good judgment. Paragraph 2 is found against the Applicant.
Finally, concerning the Personal Conduct allegation, Paragraph 3. AG ¶ 16 sets
forth potentially disqualifying conditions, none of which are independently supported by
this record. However, to the extent that Appellant’s sexual misconduct and criminal
offense involved questionable judgment, or unwillingness to comply with rules and
regulations, they can also be considered to support security concerns under AG ¶ 15.
As discussed above, Applicant’s sexual and criminal conduct did involve questionable
judgment and unwillingness to comply with criminal laws.
AG ¶ 17 provides conditions that could mitigate personal conduct security
concerns. For the same reasons that the equivalent mitigating conditions under
Guidelines J and D were not established, as discussed above, Applicant failed to
demonstrate mitigation under any of the Guideline E mitigating conditions, particularly
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”; and ¶ 17(e), “the individual has taken
positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or
duress.”
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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 relevant circumstances. 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. The administrative judge must 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.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant engaged in a criminal,
sexual relationship with an underaged person slightly more than two years ago. Under
AG ¶ 2(a)(3), Applicant’s conduct is recent.  After examining the record, I find the
Applicant lacked maturity at the time of the event, and still shows a significant lack of
maturity today. AG ¶ 2(a)4) applies. Based on the state of the record, and as stated in
depth above, I cannot find that there have been permanent behavioral changes under
AG ¶ 2(a)(6). That is particularly so when his own psychologist indicates that a lengthy,
continued period of treatment is appropriate. Accordingly, at the present time, I find that
there is the potential for pressure, coercion, exploitation, or duress (AG ¶ 2(a)(8)); and
that there is a high likelihood of recurrence (AG ¶ 2(a)(9)). 
Overall, the record evidence leaves me with questions and 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 criminal
conduct, sexual behavior, and personal conduct.
On balance, I conclude that Applicant has not successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a denial of his request for a security clearance. Accordingly,
Paragraphs 1, 2 and 3 are found against the Applicant.
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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, Guideline J: AGAINST THE APPLICANT
Subparagraph 1.a: Against the Applicant
Paragraph 2, Guideline D: AGAINST THE APPLICANT
Subparagraph 2.a: Against the Applicant
Paragraph 3, Guideline E: AGAINST THE APPLICANT
Subparagraph 3.a: Against the 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.
                                              
WILFORD H. ROSS
Administrative Judge