KEYWORD: Guideline D; Guideline E
DIGEST: The Judge’s negative credibility assessment conflicts with his conclusion that there is
no reason to doubt Applicant’s reliability and trustworthiness.  The Judge reached conflicting
conclusion under different guidelines.  The Judge erred by relying on Applicant’s current
minimal access to classified information to assess the significance of Applicant’s previous
conduct.  Favorable decision remanded.
CASENO: 09-00306.a1
DATE: 11/19/2010
DATE: November 19, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-00306
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Braden M. Murphy, Esq., Department Counsel
FOR APPLICANT
Andrea Reino, Esq.
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On August 17, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline D (Sexual Behavior) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On August 3, 2010, after the hearing,
Administrative Judge Philip S. Howe granted Applicant’s request for a security clearance.
Department Counsel appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: (a) whether the Judge’s analysis
and conclusions under Guideline D are arbitrary, capricious and contrary to law; (b) whether the
Judge’s analysis under Guideline E is arbitrary, capricious and contrary to law; and (c) whether the
Judge’s analysis under the whole-person concept is arbitrary, capricious and contrary to law.  For
the reasons discussed below, the Board remands the Judge’s favorable decision.
The Judge made the following pertinent findings of fact:  Applicant joined the Navy in April
2005.  He served three years of active duty until being administratively discharged on January 31,
2008, with an honorable discharge.  During his Navy service, Applicant had a security clearance.
No violations of security procedures or regulations were committed by Applicant while he held the
clearance.  Applicant had some personality conflicts with other service people while on active duty.
He attributed the conflicts to judgments people made about his poor economic background and his
bisexual interests.  Applicant was involved in three incidents involving other service people and
alcohol.  These involved assaults.  After one of the incidents, Applicant informed his command that
he was assaulted because he was gay.  Because of this admission, his commander began processing
him for administrative separation.  About two months later, in June 2007, Applicant attended a party
where everyone drank alcohol, and it was Applicant’s impression that everyone was intoxicated.
Applicant drank to excess, claimed he later blacked out, and does not remember making any sexual
or improper advances toward any woman or man during the party.  Applicant asserted that one
friend at the party wanted him to engage in three-way sex with him and the friend’s girlfriend.  The
friend and his girlfriend deny that this request occurred.  While at the party, Applicant was alleged
to have groped his friend’s girlfriend while seeking sex from her, to have put his hands down the
pants of another male party-goer, and to have later performed fellatio on his friend who invited him
to the party.  Thereafter, a Navy investigation occurred that resulted in court-martial charges and an
Article 32 investigation.  Applicant was accused of sodomy, assault, and indecent assault under the
UCMJ.  The charges were withdrawn when Applicant accepted the administrative discharge.
Applicant no longer consumes alcohol.  He works for his defense contractor, attends college classes,
and goes to his synagogue.  Since March 2008, he has attended counseling to help him understand
his life and interests.  Applicant did not disclose on his SF-86 the circumstances under which he left
the Navy.  He did disclose that he left a civilian job in August 2003 by mutual agreement after
allegations of unsatisfactory performance.
The Judge reached the following conclusions: Under Guideline D, Applicant’s sexual acts
in June 2007 at a party with friends were of a criminal nature; showed a pattern of compulsive
sexual acts on that occasion; made him vulnerable to coercion, exploitation, or duress; and showed
a serious lack of discretion and judgment.  Applicant’s actions occurred three years ago while he was
1“[T]he 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[.]”
3
in the Navy.  He studies, works, and generally minds his own business now.  He is not a party-goer.
The unique situation in which Applicant found himself in June 2007 has not been repeated.  He
continues to comply with all security requirements for his clearance.  The changes Applicant made
in his life or were made for him by the administrative discharge do not cast doubt on his current
reliability, trustworthiness, or good judgment.  His behavior in 2007 no longer serves as a basis for
coercion, exploitation or duress.  He is not now in a position, as he was in the Navy working with
classified military information and systems, in which he would be able to compromise classified
information.  There have been no further incidents and Applicant no longer consumes alcohol.
Applicant’s current sexual actions are strictly private and discreet.  His activities at the 2007 party
were not private, but two of the actions occurred in bedrooms with an expectation of privacy.  There
are no other incidents after his discharge, and his record of behavior is clear.  Being abstinent now
helps Applicant exercise  proper judgment.  Under Guideline E, the government alleged the same
conduct as it alleged under Guideline D.  Applicant’s answers about his employment on the SF-86
will be considered only as they relate to his general credibility.  Applicant’s conduct in June 2007,
in the subsequent investigation and administrative discharge, and in his failure to explain specifically
and with clarity the circumstances surrounding those incidents as he applied for a security clearance
make him vulnerable to exploitation, manipulation, or duress because it appears he is attempting to
conceal information about himself.  This attitude diminishes Applicant’s credibility as he attempts
to explain the events of June 2007.  The incidents occurred three years ago, and there is no evidence
of similar conduct.  The behavior occurred when Applicant was drunk at a party, and he has ceased
drinking alcohol.  The actions are unlikely to recur based upon all the changes Applicant has made
in his life since January, 2008.  The incidents do not cast doubt on his current reliability,
trustworthiness, or good judgment.  He has made positive changes to reduce or eliminate any
vulnerability to exploitation, manipulation, or duress.  Regarding the whole-person concept,
Applicant was in a military environment in which he could not function positively.  Applicant was
22 years old at the time and lacked a maturity level that would have allowed him to handle the
stresses of military life.  Following his discharge, he successfully sought counseling and
employment.  There is little likelihood of a recurrence of such incidents because Applicant has
matured through professional counseling.  Applicant mitigated the security concerns arising from
his sexual behavior and personal conduct.
Department Counsel argues that the Judge’s Guideline D mitigation analysis is flawed
because he wrongfully concluded that Applicant’s conduct at the June 2007 party and Applicant’s
“diminished credibility” did not cast doubt on Applicant’s current reliability, trustworthiness, and
judgment under Mitigating Condition ¶ 14(b).1 Department Counsel states that the Judge’s analysis
does not take into account significant record evidence and fails to weigh the seriousness of
Applicant’s conduct at the June 2007 party.  Department Counsel states that the Judge’s assessment
of Applicant’s current reliability, trustworthiness, or good judgment did not reflect the Judge’s own
negative view of Applicant’s credibility, which included the Judge’s conclusion that Applicant had
refused to acknowledge his behavior, notwithstanding the evidence of the misconduct contained in
the statements of the victims.  
2‘[T]he behavior no longer serves as a basis for coercion, exploitation, or duress[.]”
4
Concerning the alleged failure of the Judge to weigh properly or assess the seriousness of
Applicant’s conduct at the party, Department Counsel’s argument is not persuasive.  The argument
lacks detail as to the precise manner in which the Judge erred.  After a review of the Judge’s
decision, the Board concludes that the Judge reasonably characterized the incidents at the June 2007
party as serious, noting at various points in his decision that Applicant’s behavior was criminal,
highly risky, and indicative of a lack of discretion and judgment.  At the same time, for purposes of
evaluating mitigation under ¶ 14(b), the Judge pointed out the unique circumstances surrounding the
conduct at the party, the fact that Applicant has attended counseling, and the fact that Applicant has
made positive changes in his life in support of his conclusion that Applicant’s prior behavior no
longer casts doubt on his current reliability, trustworthiness, or good judgment.  These matters in
mitigation are reasonably supported by the record evidence. 
Under ¶ 14(b),the Judge concluded that Applicant’s credibility was diminished in the context
of his explanation of the events of June 2007 because it appeared that he was attempting to conceal
information about himself.  Department Counsel argues that this negative credibility assessment
conflicts with the Judge’s conclusion that there is no reason to doubt Applicant’s reliability and
trustworthiness under ¶ 14(b).  This argument has merit.  The Judge’s comments about Applicant’s
credibility that were referenced by Department Counsel are actually contained in an analysis under
Guideline E as opposed to Guideline D.  However, the fact that a conflicting conclusion occurred
under a different adjudicative guideline is of no consequence.  The concepts of reliability,
trustworthiness, and good judgment are not malleable to the point where their meaning varies among
the several guidelines.  By analyzing the case in a piecemeal fashion, the Judge  reached conclusions
that are in conflict.  While a negative credibility determination does not mandate a particular result
in a case, its presence in a case is troubling where the Judge ultimately deems Applicant reliable and
trustworthy.
Department Counsel takes issue with the Judge’s conclusion under Guideline D Mitigating
Condition ¶ 14(c)2 that, in his current position, Applicant is not in a position to compromise
classified information.  The conclusion is based on Applicant’s testimony that, as an administrative
assistant, he currently needs a clearance only to have occasional access to classified areas of his
workplace.  Department Counsel rightly argues that the notion that Applicant is not in a position to
compromise classified information is incongruous with the holding of a security clearance.  The
Judge’s conclusion is in error.
Department Counsel also points out that the Judge’s application of  ¶ 14(c) is in conflict with
his later analysis under Guideline E where he stated that Applicant’s failure to explain specifically
and clearly his conduct at the party makes him vulnerable to exploitation, manipulation, or duress.
Thus, again, the Judge has reached conflicting conclusions under two different Adjudicative
3The applicable Guideline E provision is ¶ 16(e), which states in part, “personal conduct, or concealment of
information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress. . .”
4“[T]he sexual behavior is strictly private, consensual, and discreet[.]”
5
Guidelines, one of which is a mitigating condition (under Guideline D) and the other a disqualifying
condition (under Guideline E).3  
Department Counsel also correctly points out that the Judge misapplied Guideline D
Mitigating Condition ¶ 14(d).4 By relying on Applicant’s current sexual actions as a partial basis for
applying the mitigating condition, the Judge erred by (1) referring to facts that are not part of the
record evidence, and (2) by misinterpreting the proper scope of ¶ 14(d).  There is no evidence in the
record, either explicit or discernable by reasonable inference, that would allow the Judge to make
a favorable assessment of Applicant’s current sexual practices.  Also, the sexual behavior anticipated
by the mitigating condition must, of necessity, be sexual behavior that gave rise to the initial security
concerns, i.e., the June 2007 sexual activity alleged in the SOR.  The mitigating condition would
cover current sexual behavior only if the sexual conduct of security concern was ongoing.  Ongoing
sexual behavior of security concern is not present in this case.  The Judge also discusses the 2007
sexual conduct when applying the mitigating condition, and he states that Applicant assumed he was
invited for sexual activity with his friend and the friend’s girlfriend, and two of the sexual incidents
occurred in bedrooms with an expectation of privacy by Applicant.  These factors were presumably
offered by the Judge in support of his conclusion that the June 2007 sexual activity was “strictly
private, consensual, and discreet.”  However, the Judge made other findings of fact that conflict with
those used to justify application of the mitigating factor.  He found that Applicant’s acts were
criminal, compulsive, highly risky, were of a public nature, and demonstrated a lack of discretion
and judgment.  The Judge also found that Applicant’s friends did not consent to Applicant’s
activities and eventually filed criminal complaints.  After a review of the record and the Judge’s
decision, the Board concludes that the Judge erred by invoking mitigating factor ¶ 14(d) because the
facts used to justify its applicability are in conflict with other factual findings of the Judge, and the
reasons offered in support of applying ¶ 14(d) are not sustainable given the substantial contrary
record evidence.
Department Counsel persuasively argues that there are similar problems with the Judge’s
analysis under Guideline E.  Again, the Judge’s negative credibility determination undercuts the
Judge’s application of Guideline E Mitigating Factor ¶ 17(c) with its requirement that the behavior
does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.  As discussed
previously, it is difficult to square the Judge’s conclusion that Applicant appears not to have been
entirely forthright about his involvement in sexual activity in June 2007 with his conclusion that
Applicant is ultimately reliable and trustworthy.  The Judge’s application of Guideline E Mitigating
Factor ¶ 17(d) is also problematic in that one of the requirements stated therein is “the individual
has acknowledged the behavior.”  The record does not contain such an acknowledgment from
Applicant.  Notwithstanding the fact that Applicant’s ingestion of alcohol may have impaired his
ability to remember details concerning his behavior, the Judge’s negative credibility assessment
appears to discount this possibility, and it is improper to apply a mitigating condition where a key
5“[T]he individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation,
or duress[.]”
6
component of the condition is not present in the record evidence.  Regarding Guideline E Mitigating
Condition ¶ 17(e),5 Department Counsel correctly argues that the Judge’s analysis in applying the
condition is contradicted by his specific conclusion that Applicant was vulnerable to exploitation,
manipulation, and duress because it appears he is attempting to conceal information about himself.
Department Counsel acknowledges that many of the same errors in analysis discussed
previously are contained in the Judge’s whole-person analysis.  On remand, the Judge is directed
to conduct his whole-person analysis in a manner consistent with the correction of errors described
herein.  The Board also notes that Department Counsel included as an assignment of error the
Judge’s omission of Guideline E Disqualifying Conditions ¶ 16(c) and ¶ 16(d) from his analysis.
After a consideration of the entire record, the Board concludes that the Judge was not required to
apply those disqualifying conditions as a matter of law.          
On remand, the Judge shall issue a new decision in which: (1) the Judge’s credibility
determination is integrated into his analysis under each of the applicable guidelines and under the
whole-person analysis; (2) the Judge does not consider Applicant’s current exposure, or lack thereof,
to classified information as a factor in determining Applicant’s security eligibility; (3) the Judge
does not speculate about matters not in evidence; and (4) the Judge’s analysis under individual
guidelines or the whole-person does not contradict his analysis under other guidelines. 
Order    
In accordance with the Board’s preceding discussion, the Judge’s decision granting
Applicant a security clearance is REMANDED.
Signed: Michael Y. Ra’anan              
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                   
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
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Signed: Jean E. Smallin                       
Jean E. Smallin
Administrative Judge
Member, Appeal Board