KEYWORD: Guideline E
DIGEST: Clearance Decision Statement by other government agency demonstrated that
Applicant had used countermeasures to influence the outcome of a polygraph exam.  Such
contact constitutes a security concern under Guideline E.  Favorable decision reversed.  
CASE NO: 11-03452.a1
DATE: 06/06/2012
DATE: June 6, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 11-03452
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Alison O’Connell, Esq., Department Counsel
FOR APPLICANT
Mark F. Riley, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 29, 2011, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On February 17, 2012, after the hearing, Administrative Judge John Grattan
Metz, Jr., granted Applicant’s request for a security clearance.  Department Counsel appealed
pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
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Department Counsel raised the following issue on appeal: whether the Judge erred in
concluding that the record did not establish Guideline E security concerns.  Consistent with the
following, we reverse the Judge’s decision.
Facts
The Judge made the following pertinent findings of fact: Applicant works for a Government
contractor.  In 2008, his employer nominated him for access to sensitive compartmented information
(SCI) at another Government agency (AGA).  In order to gain access to SCI, Applicant was required
to pass a polygraph examination.
In October of that year, Applicant took such an examination.  The examiner advised him that
the results were inconclusive and that he would have to take another.    A week prior to the second
polygraph, Applicant spoke with a prospective employee who told him about a website that provided
information about passing a polygraph.  The day before his second examination, Applicant visited
the site and purchased the materials offered therein.  Contrary to his expectations, the site merely
described countermeasures to defeat the polygraph, information which held no interest for him.  
At the second polygraph, the examiner asked Applicant if he had done any research about
polygraphs, and he fully disclosed his exploration of the website discussed above.  Applicant passed
the counterintelligence portion of the examination, but the examiner confronted Applicant about his
breathing and asked him about any countermeasures that he might be taking.  This made Applicant
more nervous.  The examiner repeatedly instructed Applicant to breath normally and relax.  She
became increasingly angry with Applicant, who failed successfully to complete the examination.
Applicant enjoys an excellent reputation for honesty and trustworthiness.  His work
performance is excellent. 
In the Analysis, the Judge concluded that the Government had failed to establish security
concerns under Guideline E.  He found that Applicant had not employed countermeasures, stating
that he was not bound by contrary conclusions in the documents obtained from AGA.  He stated that
these documents are entitled to little weight, but are the examiner’s conclusion, “colored by an
assessment of what the polygraph charts meant.”  Decision at 4.  In any event, the Judge concluded
that, even if Applicant had engaged in the conduct alleged in the SOR, such conduct did not
constitute a security concern under Guideline E.  
Discussion
A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “The
general standard is that a clearance may be granted only when ‘clearly consistent with the interests
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of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  “Any doubt
concerning personnel being considered for access to classified information will be resolved in favor
of the national security.”  Directive, Enclosure 2 ¶ 2(b).  The Appeal Board may reverse the Judge’s
decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law.
Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presents
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors does not turn simply on a finding that one or more of them apply to the
particular facts of a case.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
Department Counsel argues that the Judge’s conclusions are not supported by the record
evidence.  We find her arguments persuasive.
Department Counsel first notes the language from the Judge’s Analysis, quoted above, in
which the Judge opines that the evidence against Applicant was in some way colored by the
examiner’s interpretation of the test data.  She states, correctly, that Applicant was not denied a
clearance because of the results of the polygraph examination but, rather, because he allegedly
sought to employ countermeasures to affect the outcome of the examination.  As we observed in an
earlier decision, there is a critical difference between the results of a polygraph examination per se,
and any statements that a person might make during the course of such an examination.  The
reliability of a polygraph machine and the examiner’s interpretation of the charts are factually and
legally distinct from a subject’s statements made during the course of an examination.  See, e.g,
ISCR Case No. 02-31428 at 4 (App. Bd. Jan. 20, 2006).  
The SOR contains a single allegation:  “Prior to being polygraphed by another government
agency about 2008-2009 you went online to research techniques for influencing polygraph
examination results and employed these techniques during your polygraph examination.”  
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Concluding that the Government’s evidence lacked credibility, the Judge found that
Applicant did not employ countermeasures.  We examine a Judge’s findings to see if they are
supported by substantial record evidence, which is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion in light of all the contrary evidence in the same
record.”  Directive ¶ E3.1.32.2.  See also ISCR Case No. 11-02087 at 3 (App. Bd. Mar. 20, 2012).
The Government’s case depended, in large measure, upon the contents of Government Exhibit (GE)
3, a Clearance Decision Statement issued by AGA in denying Applicant access to SCI.  Applicant
did not object to the admission of this document into evidence (Tr. at 18), and the record provides
no reason to doubt its authenticity.  Clearance Decision Statements are admissible as substantive
evidence in DOHA hearings.  See, e.g., ISCR Case No. 07-18324 at 5 (App. Bd. Mar. 11, 2011).
This document states that, when queried by the examiner about certain perceived discrepancies
between the counterintelligence and suitability portions of the examination, Applicant stated that
he had visited a website that guaranteed successful completion of a polygraph.
On the night prior to this polygraph interview, [Applicant] visited this website and
paid $45 for information regarding the guaranteed successful completion of his
polygraph test.  Although he knew he was not going to lie during the polygraph
interview, he also knew that he needed to successfully complete the test, so he
proceeded to purchase and read the material provided . . . The information obtained
indicated that there were three things a person needed to do in order to successfully
complete a polygraph examination.  First. . . that an individual control breathing
during the examination; second, the site recommended a person squeeze their anal
sphincter at the “controls;” and third, the site recommended a person use their
imagination to put “yourself in a happy place.”  [Applicant] attempted to control his
breathing from the beginning of . . . this interview . . . He controlled his breathing not
because he was lying, but in order to help him successfully complete the polygraph
. . . During the second and third suitability portion [Applicant] began using his
imagination during the test to get to a “happy place.”  When asked why he
manipulated an/or attempted to manipulate the process, [Applicant] advised that he
. . . needed to successfully complete the test, so he manipulated the process in an
attempt to do so.   GE 3 at 1-2.
 Contrary to the Judge’s analysis, this language is not conclusory.  Rather, it purports to
convey facts, i.e., the content of Applicant’s responses to questions about certain anomalous aspects
of his suitability polygraph examination.  This language is detailed and specific, sufficiently so as
to preclude that it reflects a mere misunderstanding of Applicant’s statements.  The record contains
no evidence suggesting a motive for the examiner to have intentionally misrepresented them.
Applicant’s appeal letter to AGA explicitly denies attributing such conduct to her.  GE 7 at 6.  We
note that the denial of Applicant’s SCI  was upheld by two levels of appellate review within AGA.
Federal agencies and their employees are entitled to a presumption of good faith and regularity in
the performance of their responsibilities.  See, e.g., ISCR Case No. 10-11076 at 4 (App. Bd. Feb.
9, 2012).  Moreover, GE 3 is corroborated in significant measure by Applicant’s own testimony and
1Applicant testified that he consulted the website in question, purchasing the video and online electronic book
accompanying it.  He testified that the material he purchased consisted of methods to distort polygraph results.  Tr. at
39.  His testimony corroborated GE 3 as to the specific techniques recommended–breath control, imagining that one is
in a “happy place,” and sphincter control.  Tr. at 40.  He testified that, to relax during the test, he “imagined a beach
scene with water lapping” (Tr. at 50), which is consistent with one of the countermeasures mentioned in the website.
He also stated that the examiner told him that he “was not breathing right” and that “there’s something wrong with [his]
breathing” (Tr. at 47-48), which could suggest to a reasonable mind efforts by Applicant to influence the outcome of the
test in a manner consistent with the website instruction.  GE 8, Answers to DOHA Interrogatories, includes a summary
of Applicant’s clearance interview.  In this interview he acknowledged having read about countermeasures prior to the
polygraph, but he denied having used them.    
2See Federal Rule of Evidence 804(b)(3), which permits the introduction into evidence of a “statement which
was at the time of its making . . . to render invalid a claim by the declarant against another, that a reasonable person in
the declarant’s position would not have made the statement unless believing  it to be true.”   The Federal Rules of
Evidence serve as a guide in DOHA proceedings.  Directive ¶ E3.1.20.  
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evidence.1  The record contains substantial evidence that Applicant admitted to the examiner that
he had employed countermeasures in order to ensure successful completion of the polygraph.  The
statements in question are such that a reasonable person would not be expected to have made them
unless he believed that they were true.2  Accordingly, the record contains substantial evidence of the
SOR allegation at issue in this case.   
The Judge also concluded that, assuming arguendo Applicant had employed such
countermeasures, he was “not convinced that Applicant’s conduct constituted a failure to cooperate
with the security clearance process that normally results in an unfavorable clearance action.”
Decision at 3.  
The security concern under Guideline E is as follows: 
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 cooperate with the security clearance process.
Directive, Enclosure 2 ¶ 15.   
In analyzing cases before them, Judges must be guided by common sense and with a view toward
making a reasoned determination consistent with the interests of national security.  See, e.g., ISCR
Case No. 08-08831 at 5 (App. Bd. Jan. 4, 2011).  
In the case under consideration here, the website in question did not merely explain the
nature of a polygraph and the need for an examinee to cooperate with the examiner and to be truthful
in answering questions.  Rather, it provided guidance on methods for influencing the actual results
of the polygraph.  Applicant himself testified the advice contained in the presentation was “deceptive
and dishonest.”  Tr. at 41.  It is axiomatic that the use of such techniques is inconsistent with the
purposes of the polygraph and diminishes the value of the test in evaluating an applicant’s suitability
for access to classified information.  Indeed, DoD Instruction 5210.91, Polygraph and Credibility
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Assessment (PCA) Procedures, August 12, 2010, at Enclosure 4, paragraph 9, sets forth procedures
for the detection and prevention of countermeasures during polygraphs performed under DoD
auspices.  Applicant’s efforts improperly to influence the results of a DoD polygraph constitute a
failure of cooperation with the security clearance process.  His conduct also evidences questionable
judgement, which is inconsistent with the qualities required for access to national security
information.  Accordingly, Applicant’s conduct sets forth security concerns under Guideline E.
Insofar as Applicant’s presentation at the hearing was based upon his denial of security significant
conduct, there is a paucity of record evidence demonstrating extenuation or mitigation of the security
concerns raised by the Government’s evidence.  The record does not support a conclusion that
Applicant has met his burden of persuasion under Egan, supra.     
Order
The Judge’s favorable security clearance decision is REVERSED.
Signed: Michael Y. Ra’anan            
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: William S. Fields              
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody               
James E. Moody
Administrative Judge
Member, Appeal Board