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    DEPARTMENT OF DEFENSE 
            DEFENSE OFFICE OF HEARINGS AND APPEALS 
          
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 09-05841 
  ) 
Applicant for Security Clearance ) 
  
 
Appearances 
 
For Government: Tovah Minster, Esq., Department Counsel 
For Applicant: Richard P. Arnold, Esq. 
 
 
__________ 
 
Decision 
__________ 
 
 
RIVERA, Juan J., Administrative Judge: 
 
In August 2007, Applicant admitted to sexually molesting his daughter when she 
was between the ages of 7 and 15. In August 2009, he deliberately made a false 
statement to a Government investigator concerning the reasons behind the 2007 denial 
of his access to classified information. His egregious sexual misconduct and falsification 
show lack of judgment, untrustworthiness, unreliability, and lack of candor. Clearance 
denied.  
 
Statement of the Case 
 
Applicant submitted a security clearance application (SCA) on August 4, 2009. 
After reviewing the results of the ensuing background investigation, adjudicators for the 
Defense Office of Hearings and Appeals (DOHA) were unable to make a preliminary 
affirmative finding1 that it is clearly consistent with the national interest to grant 
Applicant’s request for a security clearance.  
 
1 Required by Executive Order 10865, Safeguarding Classified Information Within Industry, dated 
February 20, 1960, as amended; and Department of Defense (DoD) Directive 5220.6, Defense Industrial 
Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as revised. 
 
 
2 
 
 
                                           
On October 19, 2010 and December 9, 2010, DOHA issued Applicant statements 
of reasons (SOR), which specified the basis for its decision – security concerns under 
Guideline D (sexual behavior) and Guideline E (personal conduct) of the adjudicative 
guidelines (AG).2  
 
Applicant responded to the SOR allegations on November 16, 2010 and 
December 29, 2010, and requested a hearing before an administrative judge. The case 
was assigned to me on December 23, 2010, to determine whether a clearance should 
be granted or denied. DOHA issued notices of hearing on January 11, 2011 (convening 
a hearing on February 2, 2011); on February 1, 2011 (convening a hearing on February 
23, 2011), and on March 1, 2011, convening a hearing on March 11, 2011. Applicant 
retained counsel on January 26, 2011, and the following day he requested a 
continuance until February 23, 2011. On February 17, 2011, Applicant requested an 
extension of the continuance until March 11, 2011, because of the unavailability of an 
expert witness.  
 
The hearing was convened as rescheduled on March 11, 2011. At the hearing, 
the Government offered exhibits (GE) 1 through 6, which were admitted without 
objection. Applicant testified, presented two witnesses, and submitted exhibits (AE) 1 
through 3. Department Counsel objected to the admissibility of AE 2 (a Diagnostic 
Summary of Applicant prepared by a licensed psychologist), because the psychologist 
did not testify and the document lacked proper foundation. She also objected to AE 3 
based on foundation grounds. Both exhibits were admitted over the objections. DOHA 
received the transcript of the hearing (Tr.) on March 21, 2011. 
 
Findings of Fact 
 
Applicant denied the factual allegation in SOR ¶ 1.a, with explanations. He 
admitted in part, and denied in part, the allegation in SOR ¶ 1.b. He admitted the 
allegations in SOR ¶¶ 2.a and 2.b. His admissions are incorporated herein as findings of 
fact. After a thorough review of all the evidence, including Applicant’s demeanor and 
testimony, I make the following additional findings of fact. 
 
Applicant is a 52-year-old geographic information systems services manager. He 
completed an associate’s degree in computer science in 1984. Between 1990 and 
1993, he worked for a government contractor and possessed access to classified 
information at the secret level. He has worked for a government contractor since 
December 2008.  
 
Applicant started dating his wife in December 1996, when her daughter was 
approximately six years old. They were married in April 1999, when her daughter was 
nine years old. Applicant adopted his wife’s daughter shortly thereafter. From around 
 
2 Adjudication of this case is controlled by the AGs, implemented by the DoD on September 1, 
2006. 
 
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1997 (when his daughter was seven years old) until 2005 (when his daughter was 15 
years old), Applicant sexually molested his daughter.  
 
Between the ages of 7 and 12, Applicant sexually molested his daughter three to 
four days per week. His daughter would sometimes sleep between him and his wife. He 
would wait until his wife and daughter fall asleep to fondle his daughter’s vagina and 
breasts. Sometimes, he placed his penis between his daughter’s legs and against her 
vaginal area, and inserted his finger in her vagina. After his daughter turned 15, 
Applicant lost the desire to touch his daughter because she was no longer young and 
vulnerable. However, he still would touch her breasts and vaginal area over her clothes 
while she was sleeping. Applicant always masturbated after fondling his daughter. The 
last time he masturbated after touching his daughter was around May 2007. Applicant 
knew that sexually touching his daughter was wrongful and felt guilty about it, but he 
could not stop doing it. 
 
In July 2007, Applicant was sponsored for access to sensitive compartmented 
information (SCI) with another Government agency (Agency). During an August 2007 
interview, Applicant disclosed in detail his sexual molestation of his daughter as 
described in the preceding paragraphs. He also admitted his sexual desire for one of his 
daughter’s girlfriends. When they had slept over at his home, he would take sneak 
peaks at the visiting girls.  
 
Additionally, Applicant admitted to viewing online pornography of females aged 
14 to 28 years old, collecting pornography, and masturbating after watching the 
pornography. He stated that he liked young girls, and he would view Internet 
pornography every one or two days during the last 10 years. The last time he viewed 
Internet pornography and downloaded pictures was two or three months prior to the 
August 2007 interview. Applicant stated that he could be bribed, coerced, or 
blackmailed with this information because he did not want to lose his wife. He also 
believed that this information would destroy his reputation with his friends and at work.  
 
In September 2007, the Agency denied Applicant’s SCI access. He did not 
appeal the denial decision because, at the time, he believed he had sexually molested 
his daughter. He felt really bad and guilty about having touched his daughter as he had 
described during his interview with the Agency investigator. (Tr. 126) 
 
The Agency notified Applicant’s state child protective services (CPS) of his 
admissions. CPS investigated the sexual abuse allegations. When Applicant’s wife was 
informed by CPS of Applicant’s admissions of sexual abuse on her daughter, she 
confronted him. Applicant corroborated his statements to the Agency and admitted to 
his wife that he was sexually molesting their daughter. His wife discussed with her 
daughter the allegations. Applicant’s daughter denied that she was ever sexually 
molested by Applicant. Applicant’s wife and daughter made statements denying that 
Applicant ever sexually molested his daughter. (AE 2) CPS concluded that there was 
insufficient evidence to support a finding of indicated or ruled out child abuse. (GE 6) 
 
 
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In August 2009, Applicant submitted the pending SCA and disclosed that in 
August 2007, he was denied access to SCI because he failed a polygraph test. That 
same month, he was interviewed by a Government investigator about the 
circumstances of the denial of his SCI. Applicant deliberately misrepresented the facts 
and told the investigator that he was denied SCI access because he was not breathing 
properly. He deliberately failed to disclose that he was denied SCI access because he 
admitted to sexually molesting his minor daughter and because of his habit of viewing 
pornography of women between the ages of 14 and 17.  
 
Applicant admitted that he deliberately made a false statement to the 
Government investigator. He explained that he did not want to relive the issue; did not 
want to be questioned again about sexually molesting his daughter; did not want his 
family to go through another criminal investigation; and he was afraid that if he 
disclosed the information he would lose his job. (Tr. 111) 
 
When asked at the hearing whether he sexually molested his daughter, Applicant 
repeatedly stated: “I don’t think so because my wife and daughter said it never 
happened. I really don’t know whether it happened.” (Tr. 102) He stated that his wife 
and daughter convinced him that it never happened. (Tr. 126) He admitted feeling 
aroused by being in close contact with his daughter and feeling guilty about his sexual 
feelings toward his daughter. He explained that he did not know whether he actually 
molested his daughter or if it was just a projected dream. Applicant claimed that he 
“would nightly generate vivid and detailed dreams of (his) fantasies. So graphic and 
persistent were these dreams that soon (he) mistook them for actual events.” (Answer 
to the SOR.) He explained that the polygraph test was so stressful that it forced him to 
reveal his dark secret and all the guilt that he had.  
 
Concerning his habit of viewing online pornography, Applicant testified in March 
2011, that over the years he has become less enamored with pornography. He stated 
that he had not looked or actively sought out pornography on the web for at least the 
past two months or so. (Tr. 111) 
 
Applicant introduced a February 2011 “Diagnostic Summary” prepared by a 
licensed psychologist after a four-hour interview with Applicant and the administration of 
numerous tests. He was reluctant to diagnose Applicant with any sexual deviancy 
personality traits because there was no evidence of previous sexual misconduct and the 
assessment interview revealed low risk factors.  
 
The Diagnostic Summary has limited evidentiary value. Applicant did not provide 
the psychologist with his August 2007 statement concerning his prolonged sexual abuse 
of his daughter. Nor did he disclose his admissions with the psychologist. He also failed 
to disclose that he was aroused by his daughter when she was between the ages of 7 
and 15, his sexual dreams and fantasies about his young daughter, and his sexual 
desires for his daughter’s young girlfriends. Additionally, he failed to disclose his long-
term pornography habit of viewing girls between the ages of 14 and 17. 
 
 
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Applicant presented two character reference statements from supervisors. He is 
considered to be a highly competent and dedicated employee. His supervisors are 
impressed with his demonstrated ethical standards, professionalism, integrity, and 
trustworthiness. Both references recommended Applicant receive access to classified 
information.  
 
Policies 
 
 The President of the United States 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.” Department of the Navy v. 
Egan, 484 U.S. 518, 527 (1988). The President has authorized the Secretary of 
Defense to grant 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. The U.S. 
Supreme Court has recognized the substantial discretion of the Executive Branch in 
regulating access to information pertaining to national security, emphasizing that “no 
one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 
518, 528 (1988). 
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the adjudicative guidelines. These AGs 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 
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 to reach his decision.  
 
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 that 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. Clearance decisions must be “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. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, 
nothing in this Decision should be construed to suggest that I have based this decision, 
in whole or in part, on any express or implied determination as to Applicant’s allegiance, 
loyalty, or patriotism. It is merely an indication that the Applicant has not met the strict 
guidelines the President and the Secretary of Defense have established for issuing a 
clearance. 
 
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 
 
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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. 95-0611 
at 2 (App. Bd. May 2, 1996).      
 
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 or her] security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of 
disproving a mitigating condition never shifts to the Government. See ISCR Case No. 
02-31154 at 5 (App. Bd. Sep. 22, 2005). “[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 D, Sexual Behavior 
 
AG ¶ 12 describes the concern about sexual behavior: 
 
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 in this Guideline may be raised solely on the 
basis of the sexual orientation of the individual. 
 
AG ¶ 13 provides four conditions relating to sexual behavior that could raise a 
security concern and may be disqualifying: 
 
(a) sexual behavior of a criminal nature, whether or not the individual has 
been prosecuted; 
 
(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; 
 
(c) sexual behavior that causes an individual to be vulnerable to coercion, 
exploitation, or duress; and 
 
(d) sexual behavior of a public nature and/or that reflects lack of discretion 
or judgment. 
 
 
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Applicant sexually molested his daughter from approximately 1997, when she 
was 7 years old, until 2007, when she was 17 years old. He also has the habit of 
watching and collecting pornography depicting girls between the ages of 14 and 17. His 
behavior constitutes felony offenses and placed him in a vulnerable position to be 
pressured, coerced, or blackmailed. Although Applicant admitted his repugnant 
behavior to his wife, she chose not to believe him. Notwithstanding, he is still vulnerable 
to coercion because of the egregiousness of his behavior and the adverse effects it 
would have on his reputation if his family, friends, and coworkers become aware of it.  
 
Applicant’s long-term sexual abuse of his daughter establishes a pattern of 
compulsive, self-destructive, high-risk sexual behavior that he was unable to stop and 
may be symptomatic of a personality disorder. It also shows an absolute lack of 
judgment. AG ¶¶ 13(a), 13(b), 13 (c) and 13(d) apply and create a concern.  
 
AG ¶ 14 lists four conditions that could mitigate security concerns: 
 
(a) the behavior occurred prior to or during adolescence and there is no 
evidence of subsequent conduct of a similar nature; 
 
(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;  
 
(c) the behavior no longer serves as a basis for coercion, exploitation, or 
duress; and 
 
(d) the sexual behavior is strictly private, consensual, and discreet. 
 
 After considering all the mitigating conditions, I find that none apply to this case. 
Applicant provided a detailed admission of his long-term sexual molestation of his 
daughter during a 2007 security clearance interview. He corroborated his admissions to 
his wife when she confronted him. At his hearing, he stated he did not appeal the other 
Agency’s denial decision because he felt guilty about his behavior. 
 
 In his answer to the SOR, and at his hearing, Applicant claimed he did not know 
whether he actually molested his daughter. He averred he did not believe he abused his 
daughter because his wife and daughter said it never happened. He explained that he 
admitted to sexually molesting his daughter out of guilt for his vivid dreams and sexual 
fantasies about his daughter. Considering the evidence as a whole, I find Applicant 
lacks credibility and his testimony is disingenuous.  
 
Applicant deliberately misrepresented facts to a Government investigator in 
August 2009 when he stated that he was denied SCI access because he was not 
breathing properly. He deliberately failed to disclose that he was denied SCI access 
 
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because he admitted to sexually molesting his daughter and because of his habit of 
viewing pornography of girls between the ages of 14 and 17.  
 
 Applicant’s false statements to the investigator, and his recantation at his hearing 
of his 2007 admissions, bring to the forefront the security concerns raised by his sexual 
misconduct. It demonstrates Applicant’s behavior is still a basis for coercion and 
exploitation. Furthermore, his behavior and falsifications raise serious doubts about 
Applicant’s reliability, trustworthiness, integrity, and judgment. Guideline D is decided 
against Applicant. 
 
Guideline E, Personal Conduct 
 
AG ¶ 15 explains why personal conduct is a security concern: 
 
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 Government cross-alleged the conduct involved in SOR ¶¶ 1.a and 1.b 
under SOR ¶ 2.a. The analysis and comments contained in the Guideline D (sexual 
behavior) discussions, supra, are incorporated under this subheading.  
 
Applicant’s long-term sexual molestation of his daughter and his false statement 
to a Government investigator trigger the applicability of disqualifying conditions AG ¶ 
16(b): “deliberately providing false or misleading information concerning relevant facts 
to an employer, investigator, security official, competent medical authority, or other 
official government representative;” 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 (1) engaging in activities which, if known, may affect 
the person’s personal, professional, or community standing.” 
 
  AG ¶ 17 lists seven conditions that could mitigate personal conduct security 
concerns:  
 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; 
 
(b) the refusal or failure to cooperate, omission, or concealment was 
caused or significantly contributed to by improper or inadequate advice of 
authorized personnel or legal counsel advising or instructing the individual 
specifically concerning the security clearance process. Upon being made 
aware of the requirement to cooperate or provide the information, the 
individual cooperated fully and truthfully; 
 
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(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; 
 
(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; 
 
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress;  
 
(f) the information was unsubstantiated or from a source of questionable 
reliability; and 
 
(g) association with persons involved in criminal activity has ceased or 
occurs under circumstances that do not cast doubt upon the individual's 
reliability, trustworthiness, judgment, or willingness to comply with rules 
and regulations. 
 
After considering the above mitigating conditions, I find that none apply. 
Applicant’s egregious sexual behavior constitutes felony offenses. Moreover, he made a 
false statement to a Government investigator and made no effort to correct it. To the 
contrary, he continued to minimize his questionable behavior and lied at his hearing 
when he claimed that he did not know whether he sexually molested his daughter. 
There is no evidence Applicant obtained counseling. He has not taken steps to reduce 
his vulnerability to exploitation, manipulation, or duress. Applicant’s false statement is a 
serious, recent offense (felony level).3 His behavior shows questionable judgment, 
untrustworthiness, unreliability, and lack of candor.  
 
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 relevant circumstances. The 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 
 
3 See 18 U.S.C. 1001. 
 
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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.  
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. AG ¶ 2(c).  I have incorporated my comments 
under Guidelines D and E in my whole-person analysis. Some of the factors in AG ¶ 
2(a) were addressed under those guidelines, but some warrant additional comment. 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. Applicant receives credit for being 
truthful and forthcoming during his 2007 security clearance process. He received 
outstanding endorsements from two supervisors for his competence, dedication, and 
professionalism. He is also loved by his wife and daughter.  
 
Notwithstanding, he was less than truthful during his 2009 security clearance 
process and at his hearing. In light of Applicant’s age, education, working experience, 
and behavior, I find that he does not understand what is required for him to establish 
eligibility for a security clearance. Applicant’s eligibility and suitability for a security 
clearance is denied.  
 
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 D:    AGAINST APPLICANT 
 
 Subparagraphs 1.a and 1.b:    Against Applicant 
 
 Paragraph 2, Guideline E:    AGAINST APPLICANT 
 
 Subparagraphs 2.a and 2.b:    Against Applicant 
 
Conclusion 
 
In light of all the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant or continue eligibility for a security 
clearance for Applicant. Eligibility for a security clearance is denied. 
 
 
 
____________________________ 
JUAN J. RIVERA 
Administrative Judge