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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 11-06428
)
Applicant for Security Clearance )
Appearances
For Government: Tovah Minster, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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MASON, Paul J., Administrative Judge:
Applicant exhibited poor judgment in July 2008 when he tried unsuccessfully to
distort the results of a polygraph examination. Given Applicant’s age of 22 at the time he
took the polygraph, the passage of three and one-half years since the incident, and his
favorable credibility and impressive case in mitigation, I find for Applicant under the
personal conduct guideline. Eligibility for access to classified information is granted. 
Statement of the Case
Applicant submitted his Electronic Questionnaire for Investigations Processing (e-
QIP) on February 2, 2011. (GE 1) In an undated Statement of Reasons (SOR), the Defense
Office of Hearings and Appeals (DOHA) detailed security concerns under personal conduct
(Guideline E). The action was taken pursuant to Executive Order 10865, Safeguarding
Classified Information within Industry (February 20, 1960), as amended; Department of
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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. 
Applicant submitted his notarized answer to the SOR on November 30, 2011. DOHA
issued a notice of hearing on January 23, 2012, for a hearing on February 21, 2012. The
hearing was held as scheduled. At the hearing, three Government exhibits (GE 1 through
3) were admitted into evidence without objection. Applicant called two witnesses. He also
testified and offered four exhibits (AE A through AE D) that were admitted into evidence
without objection. The record closed on February 29, 2012.
In his closing statement, Applicant cited a decision of another DOHA administrative
judge should be followed because of the similarity in issues. Hearing-level decisions are
not binding on other administrative judges because the Directive requires that each DOHA
case must be decided on its own merits. (¶ E2.2.2(b))
Findings of Fact
The SOR contains one allegation under the personal conduct guideline. Applicant
admitted the allegation. He explained that during a portion of the July 3, 2008, polygraph
examination, he chuckled to calm his nerves. This chuckling, otherwise known as a type
of a countermeasure, distorted the examination results. Even though he contended he
chuckled to reduce stress, the primary cause of his stress was his fear of being asked
about his sexual orientation. After recognizing his chuckling was not appropriate, he
concluded his answer to the SOR by stating that, “Now that over three years have passed,
I have a grasp on my sexuality and understand that I am a gay man.” (Answer to SOR)
Applicant is 26 years old and single. He received his bachelor’s degree in May 2008
with a 3.9 cumulative average. (Tr. 48-50) He began working for his current employer in
May 2007 on a part-time basis during his senior year in college. He was investigated for
a secret clearance in December 2007. (GE 1 at 31) Applicant’s employer hired him as a
full-time systems analyst II in June 2008. 
In the Spring of 2008 before Applicant began working full-time, he was recruited by
another government agency requiring top secret/sensitive compartmented information
(TS/SCI) access. (GE 2 at 39; Tr. 52) Part of the application process included taking
polygraph examinations in May and July 2008. After learning from friends about the
stressful impact that the polygraph examination had on them, and struggling with his own
sexual identity, Applicant became curious and wanted to gather more information about the
test, particularly whether he could be asked about his sexual orientation. (GE 2 at 39; Tr.
52-53, 80) Before the May 2008 polygraph, he conducted a search on the internet to find
out more about the characteristics of the examination. From his search, he learned about
 The handwritten page numbers are located in the lower right corner of the page.1
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the components of the polygraph. While looking for questions that were asked during the
examination, Applicant found a web site that explained ways to distort polygraph results.
(Tr. 57-61) Applicant saw advertisements for methods (countermeasures) to alter the
polygraphs, but did not open any of the programs to obtain specific information about
countermeasures. (Tr. 62-63, 65) Applicant learned through general knowledge such as
watching television that placing a tack inside one’s shoe before taking a polygraph was a
countermeasure designed to alter the results. (Tr. 67-68)
While taking the second polygraph examination on July 3, 2008, Applicant was
surprised when the polygrapher told him that she intended to change the format of the
questions. Applicant and examiner then collaborated on creating certain “lie questions,”
questions requiring Applicant to furnish false rather than truthful answers. (GE 2 at 14)1
Applicant considered the “lie questions” confusing and his false answers not clear enough,
“so I tried to exaggerate the answers by chuckling.” (Id.) The examiner stopped the test and
asked Applicant why he was chuckling. He admitted he was chuckling to skew the results.
(Tr. 77) Though page 9 of GE 2 indicates that Applicant told the examiner that he wanted
to alter the responses to the “lie questions” so the relevant questions would not look as
significant, Applicant did not recall making the statement about “relevant questions,” and
believed the examiner misunderstood him. (Tr. 77-79) 
On August 1, 2008, Applicant was advised by letter from the other government
agency that his TS/SCI application was denied. (GE 2 at 5) The reason for the denial was
his chuckling on the “lie questions” so the relevant questions would not look as significant.
Applicant appealed the denial and included seven character statements from friends or
neighbors. (Id. at 11, 12) In his appeal, Applicant blamed his chuckling on the confusing
nature of the “lie questions,” rather than an intentional effort to skew the examination
results. (Id. at 13-14)
In his February 2011 e-QIP, at Section 25, Investigations and Clearance Record,
Applicant acknowledged he made a mistake that resulted in the denial of application for
TS/SCI with the other government agency. He stated:
After failing to pass the polygraph, I learned that I had problems with self-
confidence. My nerves got the best of me during the questioning, and I made
a mistake I wish I could take back. Likewise, I lacked the confidence to
defend myself (for example, justifying prior research of the polygraph
questions), resulting in the polygrapher recording a final statement that
wasn’t representative of my true intentions and integrity. After nearly three
years have gone by, I’ve tried learning from my mistake while moving forward
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and improving myself, hoping that this hasn’t served as a permanent stain on
my records that could blacklist me from being cleared. (GE 1 at 32)
Applicant explained in his answer to the SOR that he was struggling with his sexual
identity during the July 2008 polygraph. Though he was apprehensive about the
examination, he was equally concerned about whether he would be questioned about his
sexuality. In the three and one-half year period since 2008, Applicant has been engaged
in a “coming out process” enhanced by the development of a network of friends that have
made him more confident with his sexual orientation. (Tr. 57-59)
Character Evidence
Applicant’s father considers Applicant’s good attendance record at his previous
employers and his perfect church attendance as positive examples of his reliability. (Tr. 20)
In his father’s opinion, over the last three years, Applicant’s trustworthiness and honesty
have never waivered. In that period, Applicant has gained clarity regarding his sexual
identity. (Tr. 26-28) 
As Applicant’s supervisor since December 2008, Mr. B explained that Applicant’s
expertise as an “analyst II” is in window systems administration and computer virtualization.
(Tr. 36-37) Mr. B has participated in three performance evaluations of Applicant. On a
rating scale of 1 to 5, Applicant’s performance has consistently been ranked at level 4,
which Mr. B considered outstanding. (Tr. 35-36; AE B) According to Mr. B, Applicant was
nervous and unsure of himself when he began working full-time in June 2008. He did not
have the confidence then that he has now to make presentations to his team on a continual
basis. (Tr. 39-40) Mr. B commended Applicant’s honesty in never trying to conceal
information by always keeping his supervisor informed. Mr. B recommends Applicant for
a position of trust. (Tr. 38)
Attached to his October 2008 appeal of the other government agency’s denial of his
TS/SCI application are seven character statements from Applicant’s neighbors and friends.
The references praise Applicant’s reputation for honesty and reliability. (GE 2 at 17-25)
Applicant provided four additional character statements from coworkers, friends and
family members. One reference, a coworker and friend, lauds Applicant’s trustworthiness
and courage in disclosing his sexual identity. The other references have found Applicant
to be trustworthy and reliable. (AE A) Applicant received a certificate of recognition in 2009
and three awards for completing certification requirements in December 2010, January
2011, and November 2011. (AE C) Applicant received nine hours of security training in
2009, six and one-half hours in 2010, and five hours in 2011. 
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Policies
When evaluating an applicant's suitability for a security clearance, the administrative
judge must consider the AG. Each guideline lists potentially disqualifying conditions and 
mitigating conditions, which are useful in evaluating an applicant's eligibility for access to
classified information.
The administrative judge's ultimate goal is to reach a fair and impartial decision that
is based on common sense. The decision should also include a careful, thorough
evaluation of a number of variables known as the whole-person concept that brings
together all available, reliable information about the person, past and present, favorable
and unfavorable, in making a decision. 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 the potential, rather than actual, risk of compromise of classified
information.
Under Directive ¶ E3.1.14., the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.l5., 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.
Analysis
Personal Conduct
The security concern for personal conduct is set forth in AG ¶ 15:
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. 
AG ¶ 16 contains two disqualifying conditions that may be applicable: 
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.
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AG ¶ 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
assessment of questionable judgment, untrustworthiness, unreliability, lack
of candor, unwillingness to comply with rules and regulations, or other
characteristics indicating that he may not properly safeguard classified
information.
On July 3, 2008, Applicant was taking a second polygraph examination to determine
his qualifications for TS/SCI access with another government agency. He was nervous and
concerned whether he would be asked about his sexual orientation. Though he was
surprised when the examination changed to a “lie question” format, he acknowledged the
polygrapher alerted him to the change in format. However, his nervousness increased
because he was concerned he would be asked about his sexuality during this portion of the
examination. Applicant chuckled while answering the “lie questions.” After the polygrapher
stopped the polygraph and asked him why he was chuckling, he stated he was attempting
to skew the results of the examination. In his appeal of the denial of his TS/SCI access, he
reiterated his objective to distort the polygraph results, but blamed his actions on confusion.
In his answer to the SOR, he acknowledged his misconduct was a sign of
untrustworthiness. AG ¶ 16(b) applies.
Applicant’s deliberate “chuckling” to distort the examination results also supports a
whole-person assessment of questionable judgment, untrustworthiness, and unreliability
indicating that he may not properly safeguard classified information. AG ¶ 16(c) applies.
Applicant’s inability to remember that he skewed responses to the “lie questions” to make
the relevant questions look less significant does not reduce his poor judgment in trying to
alter the outcome of polygraph examination. 
There are two mitigating conditions under AG ¶ 17 that are potentially applicable to
the circumstances in this case. Those conditions are: 
AG ¶ 17(c) the offense was 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; and 
AG ¶ 17(d) the individual has acknowledged the behavior and obtained
counseling to change the behavior or taken other positive steps to alleviate
stressors, circumstances, or factors that caused untrustworthy, unreliable or
other inappropriate behavior, and such behavior is unlikely to recur.
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To Applicant’s credit, he now comprehends the inappropriateness of his conduct
which occurred over three and one-half years ago. In that period, Applicant has consistently
produced an outstanding job performance, changing from a nervous employee unsure of
himself to a confident performer delivering presentations to his team on a continual basis.
Considering the evidence as a whole, including Applicant’s favorable credibility, I conclude
that AG ¶¶ 17(c) and 17(d) apply. 
Whole-Person Concept 
I have also weighed the circumstances within the context of nine variables known
as the whole-person concept. In evaluating the relevance of an individual's conduct, the
administrative judge should consider the following factors under 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 the participation was 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 a security clearance
must be an overall commonsense judgment based upon consideration of the guidelines
and the whole-person concept.
The character endorsements from Applicant’s neighbors and friends describe a
person who was always reliable and honest during his teenage years. Applicant’s
deliberate misconduct during the polygraph examination in July 2008 was an unsuccessful
attempt to generate misleading examination results. He was 22 years old when he took the
polygraph. Concurrently, he was struggling with his sexual identity and grew increasingly
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nervous about the polygraph because he believed he would be questioned about sexual
issues. As noted in the documented material from the other government agency, Applicant
admitted to the polygrapher what his chuckling was designed to do. 
Over the next three and one-half years, there is persuasive evidence of positive
changes in Applicant’s behavior. In addition to his consistently high quality job performance
in the last three and one-half years, Mr. B has observed profound changes in Applicant’s
confidence. The potential for coercion that existed in 2008 has been eliminated by
Applicant’s realization and disclosure of his sexual identity. Judging by the totality of the
evidence, given Applicant’s compelling character evidence and the critical insight he has
internalized about himself since 2008, I am completely confident that Applicant recognizes
he must be candid during all phases of a security clearance investigation. The personal
conduct guideline is resolved in his favor. 
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 E): FOR APPLICANT
Subparagraph 1.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is clearly
consistent with national interest to grant Applicant access to classified information. Eligibility
for access to classified information is granted.
Paul J. Mason
Administrative Judge