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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 -------------------- )  ISCR Case No. 09-05484 
 SSN: ----------- ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Fahryn Hoffmann, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines J (Criminal 
Conduct), D (Sexual Behavior), and E (Personal Conduct). Eligibility for access to 
classified information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on November 12, 2008. On 
November 5, 2009, the Defense Office of Hearings and Appeals (DOHA) sent him a 
Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny his 
application, citing security concerns under Guidelines J, D, and E. DOHA acted 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) implemented by the Department of 
Defense on September 1, 2006.  
 
 
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 Applicant answered the SOR on November 25, 2009, but did not state whether 
he requested a hearing. He submitted a second answer on December 15, 2009, and 
requested a determination on the record without a hearing before an administrative 
judge. DOHA received the request on December 24, 2009. Department Counsel 
requested a hearing on January 19, 2010, and was ready to proceed on May 13, 2010. 
The case was assigned to me on May 26, 2010. DOHA issued a notice of hearing on 
June 1, 2010, scheduling the hearing for June 29, 2010. I convened the hearing as 
scheduled. Government Exhibits (GX) 1 through 5 were admitted in evidence without 
objection. Applicant testified and submitted Applicant’s Exhibits (AX) A through K, which 
were admitted without objection. He also submitted copies of two ISCR decisions, which 
were attached to the record as Hearing Exhibits I and II. DOHA received the transcript 
(Tr.) on July 9, 2010. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted all the allegations in the SOR. His 
admissions in his answer and at the hearing are incorporated in my findings of fact.  
 
 Applicant is a 29-year-old senior logistics analyst employed by a defense 
contractor since November 2005. He served on active duty in the U.S. Navy from 
September 1999 to September 2005, and he was released from active duty under 
honorable conditions. (AX A.) He served in the U.S. Navy Reserve from September 
2005 to September 2007. He received a security clearance in October 1999, while on 
active duty, but it was suspended as a result of the conduct alleged in the SOR. (Tr. 8.) 
 
 Applicant’s first performance evaluation from his current employer rated him as 
meeting performance requirements. (AX F.) His next two annual evaluations rated him 
as exceeding performance requirements. (AX G; AX H.) He was promoted in 2008, and 
his two performance evaluations after being promoted rated him as meeting 
requirements. (AX I; AX J.) In January 2010, a supervisor commended him for the high 
quality of his work and his valuable contributions to the team. (AX K.) 
  
 Applicant married in November 2003. He and his spouse separated in July 2008 
and intend to divorce. They have a four-year-old daughter and a one-year-old son. Their 
son was born after they separated. Their children are in the custody of his wife’s cousin. 
(Tr. 45-46.) Applicant and his wife have had virtually no contact since their separation.  
 
 Applicant’s wife was hospitalized on July 3, 2008, after she became depressed 
and suicidal. Applicant’s 13-year-old sister-in-law agreed to stay in his home and take 
care of his daughter while he was at work. On the evening of July 5, 2008, Applicant 
visited his wife in the hospital, went out with friends until about 11:30 p.m., and returned 
home. He and his sister-in-law first talked about his daughter, and then the conversation 
turned to sexual matters. Applicant gave his sister-in-law an alcoholic beverage and 
they both became intoxicated. Applicant asked his sister-in-law to remove her clothing 
and she complied. Applicant also removed his clothing. He touched his sister-in-law’s 
body with his hands and mouth, but she refused to allow him to kiss her on her mouth. 
 
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Applicant stopped short of sexual intercourse when he realized that what he was doing 
was wrong, and he apologized. His sister-in-law slept on the living room sofa and left his 
home on the following day. (GX 2 at 3-4; Tr. 38-39.) 
 
On July 22, 2008, Applicant was arrested and charged with indecent liberties with 
a child by a custodian and aggravated sexual battery. (GX 3.) The record does not 
reflect who notified the police. Applicant notified his supervisor of his arrest. (Tr. 40.) He 
was held in jail for about two and a half weeks. (Tr. 55.) In November 2008, the charge 
of aggravated sexual battery was disposed of by nolle prosequi. In January 2009, he 
was indicted for indecent liberties with a child by a custodian, a felony. He pleaded 
guilty in March 2009. In May 2009, he was sentenced to confinement for 12 months 
(suspended for 12 months) and placed on supervised probation for 10 years. (GX 4.) 
The sentencing order required him to register as a sex offender and to have no contact 
with anyone under the age of 18 without supervision. (GX 5; AX E.) 
 
In August 2008, while awaiting trial, Applicant voluntarily contacted a licensed 
clinical social worker who is a certified sex offender treatment provider. (GX 2 at 4; AX 
C; AX D.) Applicant started individual therapy in September 2008 and group therapy in 
May 2009. He completed his therapy in late November 2009 and participated in an 
aftercare program from December 2009 to May 2010. His diagnosis upon discharge 
from the program was depressive disorder, not otherwise specified; impulse control 
disorder, not otherwise specified; and sexual abuse of a child, offender issues. His level 
of risk of recurrence was assessed as “Low provided he uses what he has learned in 
treatment.” (AX D at 2.)  
 
Applicant’s therapist provided a letter dated May 6, 2010 (AX C), reciting the 
following: 
 
Since my last written update [Applicant] has continued to come to 
sessions on time and well prepared. He has completed assignments 
diligently and has been active in discussing relevant treatment issues in 
group and in individual therapy sessions. He has continued to express 
remorse for his actions and a commitment to learning everything he can in 
the interest of relapse prevention. 
 
[Applicant] has addressed all of these factors and issues known or 
commonly believed in the scientific community to correlate with a 
propensity toward recidivism and has completed all treatment objectives. 
He has completed aftercare and passed his exit polygraph exam. 
 
He understands that he has not been given a cure but that he has 
developed an understanding of those factors leading to his offending, 
skills to ameliorate them and a specific plan for reducing any high risk 
situations which could otherwise lead him to reoffend. He understands that 
he must actively use what he has learned in treatment in order to remain a 
reduced risk for offending. 
 
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 Applicant began attending a synagogue before the incident with his sister-in-law, 
and he has made many friends among the congregation. He formally joined the 
congregation in June 2010, and he has disclosed his conviction to his rabbi and the 
congregation. (AX B; Tr. 41, 48, 52.) 
 
 In his answer to the SOR, Applicant stated that his misconduct with his sister-in-
law occurred while he was under great emotional pressure, dealing with his wife’s 
bipolar disorder, her threats to kill him and their daughter, and her attempts to kill 
herself. At the hearing, he testified he acquired skills during his therapy that help him 
cope with stress. He keeps a journal of stressful situations to make himself more aware 
of stress when it occurs. He has learned to mentally step back from stressful situations 
and to contact a friend or his rabbi for support when he needs it. (Tr. 48-49.)  
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, these guidelines are applied in 
conjunction with an evaluation of the whole person. An administrative judge’s 
overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available, reliable information about the person, 
past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk the applicant may deliberately or inadvertently fail to safeguard classified 
information. Such decisions entail a certain degree of legally permissible extrapolation 
about potential, rather than actual, risk of compromise of classified information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 
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 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it 
is clearly consistent with the national interest to grant or continue his security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity 
clearance determinations should err, if they must, on the side of denials.” Egan, 484 
U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline J, Criminal Conduct 
 
 The SOR alleges that Applicant was arrested in July 2008 for indecent liberties 
with a child by a custodian and aggravated sexual battery; that he pleaded guilty to 
indecent liberties with a child by a custodian; and that he was sentenced to 12 months 
in jail, fined, and placed on supervised probation for ten years (SOR ¶ 1.a). It also 
alleges that he is a registered sex offender (SOR ¶ 1.b). 
 The security concern related to criminal conduct is: “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.” AG ¶ 30. Applicant’s conviction of indecent liberties with a child by a 
custodian, a felony, raises the disqualifying conditions in AG ¶¶ 31(a) (“a single serious 
crime”) and 31(c) (“allegation or admission of criminal conduct, regardless of whether 
the person was formally charged, formally prosecuted, or convicted”). His sentence to 
ten years of supervised probation raises AG 31(d) (“individual is currently on parole or 
probation”). 
 Since the Government produced substantial evidence to raise the disqualifying 
conditions in AG ¶¶ 31(a), (c), and (d), the burden shifted to Applicant to rebut, explain, 
extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of 
proving a mitigating condition, and the burden of disproving it never shifts to the 
Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 
 
 Security concerns raised by criminal conduct may be mitigated if “so much time 
has elapsed since the criminal behavior happened, or it happened under such unusual 
 
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circumstances that it is unlikely to recur and does not cast doubt on the individual's 
reliability, trustworthiness, or good judgment.” AG ¶ 32(a). The first prong of this 
mitigating condition focuses on whether the criminal conduct was recent. There are no 
Abright line@ rules for determining when conduct is Arecent.@ The determination must be 
based on a careful evaluation of the totality of the evidence. See ISCR Case No. 02-
24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows Aa significant period of time 
has passed without any evidence of misconduct,@ then an administrative judge must 
determine whether that period of time demonstrates Achanged circumstances or conduct 
sufficient to warrant a finding of reform or rehabilitation.@ Id.  
 
 Applicant’s criminal conduct was two years ago, but he was not sentenced until 
May 2009, and he did not complete his therapy until May 2010, the month before the 
hearing. He has completed only one year of his ten-year probation. Arguably, the 22 
months between his criminal conduct and the hearing is “a significant period of time,” 
but most of that time elapsed while the criminal proceedings were ongoing and he was 
undergoing therapy. His therapist made it clear that he is not cured, and the risk of 
recurrence depends on his willingness and ability to use the tools he was provided in 
therapy to cope with stress. Under these circumstances, insufficient time has passed to 
demonstrate reform or rehabilitation.  
 
 The second prong (“unusual circumstances”) also is not established. Applicant 
was under considerable stress caused by his bipolar and suicidal spouse, and that 
situation is not likely to recur. However, other stressful situations may well occur in his 
life, and it is too soon to whether he will resort to unlawful stress relievers when they 
occur. I conclude AG ¶ 32(a) is not established. 
Security concerns under this guideline also may be mitigated if “(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.” AG ¶ 
32(d). Applicant expressed remorse for his conduct by apologizing to the victim shortly 
after it happened, in his answer to the SOR, and at the hearing. He has continued to 
perform well at his job. He has become an active member of his synagogue. 
Nevertheless, for the reasons set out in the above discussion of AG ¶ 32(a), insufficient 
time has passed to show successful rehabilitation. 
Applicant’s registration as a sex offender, alleged in SOR ¶ 1.b, is a 
consequence of his criminal conduct in SOR ¶ 1.a and not an independent act raising 
security concerns. As such, SOR ¶ 1.b duplicates SOR ¶ 1.a. When the same conduct 
is alleged twice in the SOR under the same guideline, one of the duplicative allegations 
should be resolved in Applicant=s favor. See ISCR Case No. 03-04704 (App. Bd. Sep. 
21, 2005) at 3 (same debt alleged twice). Accordingly, I will resolve SOR ¶ 1.b in 
Applicant’s favor.  
 
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Guideline D, Sexual Behavior 
 The SOR cross-alleges Applicant’s criminal conduct under this guideline. The 
security concern under this guideline 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. 
Applicant’s conduct raises the following disqualifying conditions: 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”), and AG ¶ 13(c) (“sexual behavior that causes an individual to be vulnerable 
to coercion, exploitation, or duress). AG ¶ 13(a) is raised because Applicant’s conduct 
was a felony. AG ¶ 13(b) is raised because his behavior was compulsive, made him 
vulnerable to criminal prosecution, and was symptomatic of his impulse control disorder. 
AG ¶ 13(c) is raised because his behavior with his 13-year-old sister-in-law made him 
vulnerable to coercion, exploitation, or duress.  
Security concerns raised by sexual behavior may be mitigated if “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” or “the behavior no longer serves as a basis for 
coercion, exploitation, or duress.” AG ¶¶ 14(b) and (c). I conclude that AG ¶ 14(b) is not 
established for the reasons set out in the above discussion of AG ¶ 32(a) under 
Guideline J. However, I conclude that AG ¶ 14(c) is established because Applicant has 
disclosed his conduct to his supervisors, friends, his rabbi, and the members of his 
religious congregation, and his registration as a sex offender is a matter of public 
record. No other enumerated mitigating conditions are relevant. 
Guideline E, Personal Conduct 
 The SOR cross-alleges Applicant’s criminal conduct under this guideline. The 
security concern 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.” 
 Applicant’s criminal conduct raises the following disqualifying conditions under 
this guideline: 
AG ¶ 16(c): credible adverse information in several adjudicative issue 
areas that is not sufficient for an adverse determination under any other 
 
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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 
regulations, or other characteristics indicating that the person may not 
properly safeguard protected information; and 
AG ¶ 16(e): personal conduct, or concealment of information about one's 
conduct, that creates a vulnerability to exploitation, manipulation, or 
duress, such as . . . engaging in activities which, if known, may affect the 
person's personal, professional, or community standing.  
 Security concerns raised by personal conduct may be mitigated if “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.” AG ¶ 17(c). Although 
Applicant committed only one offense, I conclude that this mitigating condition is not 
established for the reasons set out in the above discussions of AG ¶¶ 14(b) and 32(a). 
Security concerns also may be mitigated if “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.” AG ¶ 
17(d). Although Applicant has acknowledged his behavior and obtained counseling, I 
conclude this mitigating condition is not established for the reasons set out in the above 
discussion of AG ¶¶ 14(b) and 32(a). 
Whole-Person Concept 
 
 Under the whole-person concept, an 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. 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 
which participation is voluntary; (6) the presence or absence of 
rehabilitation and other permanent behavioral changes; (7) the motivation 
for the conduct; (8) the potential for pressure, coercion, exploitation, or 
duress; and (9) the likelihood of continuation or recurrence.  
 
 Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a 
security clearance must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole-person concept. I have incorporated my 
comments under Guidelines J, D, and E in my whole-person analysis. Some of the 
 
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factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant 
additional comment. 
 
 Applicant is a mature adult. He served honorably in the U.S. Navy and has held a 
clearance for many years. He was sincere, candid, and remorseful at the hearing. He is 
respected by his supervisors, even though they are aware of his criminal record. On the 
other hand, the diagnosis of his therapist reflects that he suffers from an impulse control 
disorder and that he is not cured. Insufficient time has passed for him to demonstrate 
that he will deal with future stress in an appropriate and lawful manner. 
 
 After weighing the disqualifying and mitigating conditions under Guidelines J, D, 
and E, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has not mitigated the security concerns based on his criminal conduct, sexual 
behavior, and personal conduct. Accordingly, I conclude he has not carried his burden 
of showing that it is clearly consistent with the national interest to continue his eligibility 
for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline J (Criminal Conduct):  AGAINST APPLICANT 
 
  Subparagraph 1.a:     Against Applicant 
  Subparagraph 1.b:     For Applicant 
 
 Paragraph 2, Guideline D (Sexual Behavior):  AGAINST APPLICANT 
 
  Subparagraph 2.a:     Against Applicant 
 
 Paragraph 3, Guideline E (Personal Conduct):  AGAINST APPLICANT 
 
  Subparagraph 3.a:     Against Applicant 
Conclusion 
 
 In light of all of the circumstances, it is not clearly consistent with the national 
interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to 
classified information is denied. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge