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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 10-00195
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esq., Department Counsel
For Applicant: Joseph Testan, Esq.
August 25, 2011
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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 May 18, 2009. (Government Exhibit 1.) On October 8, 2010, the Defense
Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing
security concerns under Guidelines D (Sexual Behavior) and  E (Personal Conduct).
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)
effective within the Department of Defense on September 1, 2006. 
 
Applicant answered the SOR on October 26, 2010, and requested a hearing.
Department Counsel was prepared to proceed on December 28, 2010. This case was
assigned to another administrative judge on January 4, 2011. It was reassigned to me
on January 18, 2011. DOHA issued notices of hearing on January 4 and January 5,
2011. I convened the hearing as scheduled on January 21, 2011. The Government
Applicant’s counsel objected to the admission of certain parts of Government Exhibit 2. The objection was1
overruled. (Tr at 13-22.)
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offered Government Exhibits 1 through 4, which were admitted into evidence.  Applicant1
testified, called one additional witness, and submitted Applicant Exhibits A through E,
which were admitted without objection. DOHA received the transcript (Tr) of the hearing
on February 8, 2011. Based upon a review of the pleadings, exhibits, and testimony,
eligibility for access to classified information is granted.
Findings of Fact
Applicant is 30 and single. He is employed by a defense contractor and seeks to
retain a security clearance in connection with his employment. 
Paragraph 1 (Guideline D, Sexual Behavior) 
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has engaged in sexual behavior that is illegal, reflects a lack of
judgment or discretion, or may subject Applicant to undue influence or coercion. 
Paragraph 2 (Guideline E, Personal Conduct)
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has engaged in conduct which displays questionable judgment,
dishonesty, or unwillingness to comply with rules and regulations.
The allegations in Paragraphs 1 and 2 of the SOR involve the same conduct.
Accordingly, they will be discussed together. Applicant admitted all of the allegations in
the SOR.
Between the years 1994 and 1997, when Applicant was in high school, he
engaged in acts of voyeurism twice. During the same period, he also twice brushed his
hand against the buttocks of unsuspecting female schoolmates. (Tr at 50-51, 71-74.)
Applicant also was involved in sexual behavior involving women’s underwear.
Applicant described his conduct:
I would go into the laundry facility after seeing a cute girl or a girl I
knew from the apartment complex. Go in there. Walk in there, take her
underwear or bra out of her laundry basket, pick it up, look at it, touch it.
Fantasize about it. Put it back. It was probably less than a minute sitting
there with it. Then I would go back to my apartment and gratify myself to
the mental image of that girl wearing it. I never took the underwear, but
except out of the - - it never left the laundry facility. (Tr at 47.)
Applicant’s counsel objected to my considering these statements. As stated, his objection was overruled, and2
the documents have been examined by me and given the appropriate weight.
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Applicant would also go into his roommates’ bedrooms and look at their
girlfriend’s underwear. (Tr at 49, 64-66, 71.) Applicant was adamant in stating that he
never stole underwear, or took it back to his room, as alleged in Government Exhibit 2.2
This testimony was credible. (Tr at 47-48, 64; Government Exhibit 2 at 6-9, 21-25.)
This conduct occurred about three times before 1999; 12 to 20 times between
1999 and 2003; and five times between 2003 and 2008. The last incident occurred in
about September 2008. (Tr at 48-50.) Applicant testified that he does not have the
desire to engage in this conduct again and his confident that it shall not recur. (Tr at 63,
80.)
Applicant was processed for a clearance by another Government agency
(Agency) in the fall of 2008. Based on the allegations in the SOR, the Agency denied
Applicant access on December 22, 2008. (Government Exhibit 2.) Applicant appealed
that decision and, on March 18, 2009, Applicant was informed that he would “be
afforded the opportunity to continue process for access.” (Government Exhibit 2 at 26.)
(See also Applicant Exhibit B.)
When he received the denial letter from the Agency, Applicant stated, “I realized
that I needed some accountability in my life to be able to rid myself of these unwanted
behaviors.” (Tr at 52.) To do this Applicant states: 
I confessed my sexual addiction to both my best friend and my
pastor, among others. By having my behavior out in the open, I am able to
have accountability in my actions. I can call my friend or pastor anytime I
need to talk and discuss my temptations and how I can overcome them.
They also continually check in with me and ask how I’m doing.
(Government Exhibit 3 at 4.)
Applicant’s pastor, the pastor’s son, and a third member of this “accountability
group” submitted letters on Applicant’s behalf. All three of the parties state that they
have knowledge of Applicant’s conduct, that he is open and honest about his situation,
and that they believe the conduct is a thing of the past. (Government Exhibit 3 at 6;
Applicant Exhibit E at 4, 5; Tr at 52-55, 74.)
Applicant also has been attending a support group at his church for men
struggling with what they describe as “sexual sin.” This group meets weekly and
Applicant has been attending it regularly for two years. (Tr at 56-58, 81-83.) The
community pastor of the support group submitted a letter on Applicant’s behalf. He
states that Applicant, “Maintained a healthy distance from past struggles and continues
to be admired by myself and others who have shared group with him. I believe
[Applicant] to be a trustworthy man in his personal life and I have no doubt that his
personal ethics transfer to his professional career.” (Applicant Exhibit D.)
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Applicant also began individual counseling with a psychologist in January 2011.
The psychologist states, “[Applicant] has accepted responsibility for his past behavior
and has stated that he has a desire to work towards the goal of reaching his
occupational aspirations.” (Applicant Exhibit A.)
Applicant has told many people about his conduct. These include his parents, his
manager, several friends and their spouses, including his pastor, and the members of
his support group. One of the friends testified, and others of both sexes submitted
letters in support of the Applicant, which confirm their knowledge of his activities.
(Applicant Exhibits C, D and E at 2-6; Tr at 25-36.)
Mitigation
Applicant submitted letters of recommendation from work associates, including
his past supervisor. That person, who supervised Applicant for two years, states, “I can
say without reservation that [Applicant] excelled at every task he was assigned,
consistently was rated above his peer group and always showed exuberance for the job
that made selecting him as a team leader a natural choice.” (Applicant Exhibit C.)
A work associate who has known Applicant for eight years also submitted a letter
on Applicant’s behalf. He says, “I believe that [Applicant] has the character, technical
abilities, and work ethic that make him a valuable asset to a classified program, so I
would recommend [Applicant] for a security clearance.” (Applicant Exhibit E at 1.)
As stated earlier, Applicant submitted letters of recommendation from friends,
who he had told about his conduct. His friend, the pastor’s son, states, “He [Applicant] is
never satisfied with mediocrity, and he consistently works to better himself. [Applicant]
has been candid with is strengths and weaknesses. He knows what he is capable of,
and relentlessly pursues his potential.” (Applicant Exhibit E at 4.) The other member of
the accountability group states, “[Applicant] has exhibited a stand-up character and
traits that make me feel blessed to have him as a friend.” (Applicant Exhibit E at 5.)
Policies
Security clearance decisions are not made in a vacuum. When evaluating an
applicant’s suitability for a security clearance, the administrative judge must consider
the adjudicative guidelines. In addition to brief introductory explanations for each
guideline, the adjudicative guidelines list potentially disqualifying conditions and
mitigating conditions, which are to be used as appropriate 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
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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 or her own
common sense, as well as 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, “Any 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 for 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. Security clearance 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.
Finally, as emphasized 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
Paragraph 1 (Guideline D, Sexual Behavior)
The security concern 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,
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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.
The Government has presented enough evidence to meet their burden of proof.
The following disqualifying conditions are applicable based on this finding:
13.a. sexual behavior of a criminal nature, whether or not the individual
has been prosecuted;
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;
13.c. sexual behavior that causes an individual to be vulnerable to
coercion, exploitation or duress; and
13.d. sexual behavior of a public nature and/or that reflects lack of
discretion or judgment.
Under the particular facts of this case, the following mitigating conditions have
application:
14.b. the sexual behavior happened so long ago, so infrequently, or under
such circumstances, that it is unlikely to recur and does not cast doubt on
the individual’s current reliability, trustworthiness, or good judgment; and
14.c. the behavior no longer serves as a basis for coercion, exploitation, or
duress.
Paragraph 2 (Guideline E, Personal Conduct)
The security concern 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 in any failure to provide
truthful and candid answers during the security clearance process or any
other failure to cooperate with the security clearance process.
Regarding all the allegations, the following Disqualifying Conditions are
applicable:
16.c. credible adverse information in several adjudicative 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
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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;
16.d. credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information,
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 
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, or (2) while in
another country, engaging in any activity that is illegal in that country or
that is legal in that country but illegal in the United States and may serve
as a basis for exploitation or pressure by the foreign security or
intelligence service or other group.
Regarding all the allegations, the following Mitigating Conditions are applicable:
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.
Applicant admitted that his sexual conduct showed a lack of discretion and
judgment. His conduct in high school happened at least ten years ago and has minimal
security significance.
Applicant’s conduct with regards to his fondling women’s underwear, occasionally
in public places, and then masturbating in private afterwards showed poor judgment.
However, it is to his benefit that, when he was initially denied access by the Agency due
to this conduct, he engaged in several steps to help him stop from engaging in the
conduct in the future. He has worked with his pastor, with the church as a whole through
a support group, and now with a psychologist. The behavior last occurred more than
two years before the record closed and Applicant has compellingly showed that it will
not recur.
W hile not determinative, it is noted that the Agency, upon appeal, allowed Applicant to resume processing3
for access.
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In addition, Applicant has told many people, including his former supervisor and
some of the women involved, about his conduct. Therefore, he is no longer subject to
coercion about the conduct.3
After reviewing all of the evidence, Applicant has mitigated the security
significance of his conduct. Paragraphs 1 and 2 are found for Applicant.
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 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.      
I considered the potentially disqualifying and mitigating conditions in light of all
the relevant facts and circumstances surrounding this case. I specifically find that the
Applicant has mitigated the Government’s security concerns under the whole-person
concept, independently of Guidelines D and E. 
Applicant did not meet the standard expected of individuals who hold security
clearances when he engaged in the conduct set forth in the SOR. It was, at best,
extremely immature. However, his conduct since September 2008 has been exemplary.
At every step along the way he has been open about the conduct with the Agency, and
with DOHA. He has acknowledged his wrongdoing and promises not to engage in the
conduct again. DOHA proceedings are not designed to punish any particular applicant
for past conduct, but to make a reasoned decision whether, under all the circumstances,
he or she can be trusted with the nation’s secrets. Applicant has shown many
behavioral changes, which show that he is trustworthy. Under the particular facts of this
case, I find that Applicant has shown the presence of rehabilitation and other permanent
behavior changes (AG ¶ 2(a)(6)); there is little to no potential for pressure, coercion,
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exploitation, or duress (AG ¶ 2(a)(8)); and that there is no likelihood of recurrence (AG ¶
2(a)(9)). 
Overall, the record evidence leaves me with no questions or doubts about
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has mitigated the security concerns arising from his alleged Sexual
Behavior and Personal Conduct. On balance, I conclude that Applicant has successfully
overcome the Government's case opposing his request for a security clearance.
Accordingly, the evidence supports granting his request for a security clearance.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline D: FOR APPLICANT
Subparagraph 1.a.: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a.: For Applicant
Conclusion
In light of all of the circumstances presented by the record, it is clearly consistent
with the national interest to grant Applicant eligibility for a security clearance.  Eligibility
for access to classified information is granted.
                                              
WILFORD H. ROSS
Administrative Judge