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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)         ISCR Case No. 11-04104
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)
Applicant for Security Clearance )
Appearances
For Government: Tovah A. Minster, Esq., Department Counsel
For Applicant: Pro se
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Decision
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MASON, Paul J., Administrative Judge:
In view of the lack of evidence to rehabilitate Applicant’s sexual and larcenous
behavior, his deliberate omission of information from his two security application forms
in 2004 and 2007, and his deliberate omission of relevant information to a government
investigator in December 2010, Applicant has not mitigated the sexual behavior,
personal conduct, and criminal conduct security concerns. Eligibility for access to
classified information is denied. 
Statement of the Case
Applicant completed and certified an Electronic Questionnaire for Investigations
Processing (e-QIP, Item 4) on May 25, 2007. He provided signed affidavits to an
investigator from the Office of Personnel Management (OPM) on two occasions,
December 21, 2010 (Item 5), and January 21, 2011 (Item 6). In his interrogatory
response dated June 22, 2011, to DOHA’s request for information that he may have
received from another United States government agency (AGA) regarding revocation,
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suspension, or denial of a security clearance or sensitive compartmented information
(SCI) access, Applicant indicated “yes,” and provided his signature that he had received
correspondence from AGA. (Item 7 at 2) He indicated “yes,” and provided his signature
that he mailed the requested information to DOHA. (Item 7 at 3)) His signature on page
3 of the form was not notarized. (Item 7 at 3)
On December 7, 2011, DOHA issued a Statement of Reasons (SOR) detailing
security concerns under sexual behavior (Guideline D), personal conduct (Guideline E),
and criminal conduct (Guideline J). 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), implemented by the Department of Defense on September
1, 2006. 
Applicant furnished his notarized answer (Item 3) to the SOR on January 5,
2012. He requested a decision be made on the record in lieu of a hearing. A copy of the
Government’s File of Relevant Material (FORM), the Government’s evidence in support
of the allegations of the SOR, was sent to Applicant on March 20, 2012. He received the
FORM on June 21, 2012. In an attachment to the FORM, he was advised he could
respond to the information in the FORM by submitting additional information in rebuttal,
explanation, mitigation, or extenuation. His response was due by July 21, 2012. No
response was received. The case file was assigned to me on August 8, 2012. 
Findings of Fact
The SOR contains five allegations under sexual behavior guideline (SOR ¶ 1),
five allegations under the personal conduct guideline (SOR ¶ 2), and one allegation
under the criminal conduct guideline (SOR ¶ 3). Applicant admitted all the allegations
except for SOR ¶¶ 2.a and 2.b. He supplied no explanations for his admissions or
denials. 
Applicant is 32 years old. He has been married since November 2006. He has no
children. He has been employed by a defense contractor since October 2003. He began
his employment as a proposal analyst for almost two years before becoming an
information analyst in June 2005. In November 2009, he was promoted to senior
systems analyst. He received a bachelor’s degree in June 2003. In December 2009, he
was awarded a master’s degree in information technology. 
In 2001, Applicant underwent security processing (including a polygraph
examination) by AGA for sensitive compartmented access (SCI). On December 11,
2001, he was disapproved for program access based on Director of Central Intelligence
Directive, DCID 6/4 issues of personal conduct, criminal conduct, and misuse of
information technology systems. During the 2001 security processing with AGA,
Applicant admitted intentionally viewing child pornography. He submitted a security
clearance application, Standard Form 86, on October 19, 2004. In response to Section
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32, Applicant did not disclose that he had been denied access authorization in
December 2001. (SOR ¶ 2.b) On May 25, 2007, Applicant submitted an electronic
questionnaire for investigations processing (e-QIP). In response to Section 26,
Applicant did not disclose that he had been denied access by AGA in December 2001.
(SOR ¶ 2.a) 
During a security interview with AGA in August 2009 for SCI access, Applicant
stated he was not forthcoming in the 2001 polygraph examination because he feared
prosecution for any issues he talked about during the polygraph. In the August 2009
interview, Applicant initially stated he had three child pornographic images currently
stored on his flash drive. Then, he increased the number of pornographic child images
to 20. He noted his wife would be shocked if she knew he was viewing pornography.
During the August 2009 interview, Applicant recalled taking office supplies and
computer accessories for personal use while working for his current employer. He took
two software programs that he used for his graduate course school work. He
downloaded proprietary information from his current employer to use as an academic
reference. 
While he was taking two polygraph examinations in November 2009, Applicant
admitted masturbating twice between March 2000 and March 2001: once in the stall of
the women’s restroom at his workplace where he was an intern in a law office, and once
in his female supervisor’s office. He also admitted masturbating four times at his current
employment location between 2005 and 2009. He admitted viewing adult pornography,
but denied viewing child pornography while at work. Following his sexual behavior and
theft disclosures during the November 2009 polygraph examinations conducted by
AGA, Applicant’s SCI access was revoked in February 2010, based on guidelines of
personal conduct, criminal conduct, sexual behavior, and misuse of technology
systems. 
On December 21, 2010, Applicant submitted an affidavit to an OPM investigator.
He stated he never concealed or falsified information on any security form used to
determine employment eligibility. 
Character Evidence
Other than his scholastic record and promotion in November 2009, Applicant
provided no other character evidence, e.g., certificates of recognition, cash awards,
regarding his job performance. He provided no character evidence from coworkers or
supervisors. 
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 to be applied to the extent they are
deemed necessary in evaluating an applicant's eligibility for access to classified
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information. The conditions must be evaluated in the context of general factors that
comprise the whole-person concept.
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 for obtaining a favorable security
decision.
Analysis
Sexual Behavior
AG ¶ 12 defines the security concern:
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 the individual’s reliability, trustworthiness
and ability to protect classified information. No adverse inference
concerning standards in this Guideline may be raised solely on the basis
of the sexual orientation of the individual.
AG ¶ 13 describes four conditions that may be potentially disqualifying:
AG ¶ 13(a) sexual behavior of a criminal nature, whether or not the
individual has been prosecuted;
AG ¶ 13(b) a pattern of compulsive behavior, whether or not the individual
has been prosecuted;
AG ¶ 13(c) sexual behavior that causes an individual to be vulnerable to
coercion, exploitation, or duress; and 
AG ¶ 13(d) sexual behavior of a public nature and/or that reflects lack of
judgment.
Applicant’s viewing of child pornography is generally recognized as criminal
conduct under state and federal law, regardless of whether the viewing location is in the
workplace or at home. His viewing, downloading, and retention on a flash drive of
approximately 20 images of underage females, and his pattern of masturbation in public
places between 2001 and 2002, and between 2005 and 2009, demonstrate a lack of
discretion and judgment. His masturbation has independent significance as compulsive
or high risk sexual behavior because of the locations of the behavior. Applicant is
considered vulnerable to coercion, exploitation, and duress because there is no
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indication that he has informed his family or coworkers of his sexual behavior, The
above four disqualifying conditions under the sexual behavior guideline apply. 
AG ¶ 14 describes three conditions that may be potentially mitigating:
AG ¶ 14(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 reliability, trustworthiness or good judgment;
AG ¶ 14(c) the behavior no longer serves as a basis for coercion,
exploitation, or duress; and 
AG ¶ 14(d) the sexual behavior is strictly private, consensual, and
discreet. 
None of the mitigating conditions under AG ¶ 14 apply. Applicant’s sexual
behavior occurred between 2001 and 2009. Though his last admitted viewing of child
pornography was in 2001, his downloading and current retention of 20 images of
underage females on his flash drive does not support the conclusion that the behavior is
unlikely to recur. The continued possession of illegal pornography and pattern of public
sexual behavior raises security concerns about Applicant’s current reliability,
trustworthiness, and judgment. He remains a candidate for coercion and duress
because there is no indication that his wife or his coworkers are aware of his sexual
behavior. Applicant’s viewing and retention of child pornography and his practice of
masturbation in public places is criminal. AG ¶ 14(d) is irrelevant. 
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 four disqualifying conditions that may be applicable: 
AG ¶ 16(a) deliberate omission, concealment or falsification of relevant
facts from any personnel security questionnaire, personal history
statement, or similar form used to conduct investigations, determine
employment qualifications, award benefits or status, determine security
clearance eligibility or trustworthiness, or award fiduciary responsibilities;
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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;
AG ¶ 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 the
person may not properly safeguard protected information. This includes
but is not limited to consideration of: (1) untrustworthy or unreliable
behavior to include breach of client confidentiality, release of proprietary
information, unauthorized release of sensitive corporate or other
government protected information; (2) disruptive, violent, or other behavior
in the workplace; (3) a pattern of dishonesty or rule violations; and (4)
evidence of significant misuse of government or other employer’s time or
resources; and 
AG ¶ 16(e) personal conduct, or concealment of information about one’s
conduct, that creates 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 country or intelligence
service or other group.
The omission of relevant facts from a security clearance form can occur for a
number of unintentional reasons. Those reasons, which include haste, oversight, or
negligence, are not present here. The documents submitted by the Government show
that Applicant was disapproved for access by AGA in December 2001. I conclude that
Applicant deliberately omitted relevant information from his SCA in October 2004 (SOR
¶ 2(b)) and from his e-QIP in May 2007 (SOR ¶ 2(a)). AG ¶ 16(a) applies. 
Even after receiving the correspondence from AGA in March 2010, that informed
him of AGA’s decisions in December 2001 and February 2010, disapproving his SCI
access, Applicant continued to deny to the OPM investigator in December 2010 that he
had ever falsified a security form to determine employment eligibility. AG ¶ 16(b)
applies. 
Applicant’s illegal taking of office supplies, computer accessories, software, and
proprietary information from his current employer, demonstrate a pattern of rule
violations within the scope of AG ¶ 16(d)(1), (3), and (4). His sexual behavior could
serve as a basis for coercion, duress, while affecting his professional and community
standing as set forth in AG ¶ 16(e). 
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There are three mitigating conditions under AG ¶ 17 that are potentially
applicable to the circumstances in this case. Those conditions are: 
AG ¶ 17(a) the individual made prompt, good-faith efforts to correct the
omission, concealment or falsification, before being confronted with the
facts); 
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).
None of the mitigating conditions apply. AG ¶ 17(a) does not apply because
Applicant made no effort to rectify his deliberate omissions before being confronted with
the facts. AG ¶ 17(b) does not apply because Applicant’s sexual behavior is recent and
cannot be considered minor. While he has acknowledged his sexual behavior, Applicant
has furnished no evidence of taking positive steps to reduce the factors that triggered
the behavior. He has taken no corrective measures to reduce his vulnerability to
coercion or duress. 
Criminal Conduct
AG ¶ 30 of the criminal conduct guideline sets forth the security concern related
to criminal conduct:
Criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness. By its very nature, it calls into question a person’s ability
or willingness to comply with laws, rules and regulations.
The two potentially disqualifying conditions under AG ¶ 31 are:
AG ¶ 31(a) a single serious crime or multiple lesser offenses; and
AG ¶ 31(c) allegation or admission of criminal conduct, regardless of
whether the person was formally charged, formally prosecuted or
convicted.
Applicant’s viewing of pornography, and his downloading and retention of 20
images of underage females since 2001 meets the above two disqualifying conditions
under the criminal conduct guideline. 
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There are two mitigating conditions under AG ¶ 32 that may apply:
AG ¶ 32(a) so much time has passed since the criminal behavior
happened, or it happened under such circumstances that it is unlikely to
recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment; and
AG ¶ 32(d) there is evidence of successful rehabilitation; including but not
limited to the passage of time without recurrence of criminal activity,
remorse or restitution, job training or higher education, good employment
record, or constructive community development.
AG ¶ 32(a) is not applicable for same reasons as discussed under the sexual
behavior guideline (AG ¶ 14(b)) and the personal conduct guideline. (AG ¶ 17(c)) AG ¶
32(d) requires evidence of successful rehabilitation. Though Applicant’s scholastic
achievements constitute evidence of higher education, and his promotion in November
2009 is interpreted as a good employment record, there is no evidence of treatment to
relieve the stressors that caused his sexual behavior and other acts of criminal conduct.
Whole-Person Concept 
I have examined the evidence under the disqualifying and mitigating conditions of
the sexual behavior, personal conduct, and criminal conduct guidelines. 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:
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 eligibility for a
security clearance must be a commonsense judgment based on careful consideration of
the guidelines and the whole-person concept.
Applicant is 32 years old and married. It is fair to assume that his good job
performance was rewarded by a promotion he received in November 2009. However,
Applicant has viewed child pornography and still keeps a flash drive containing 20
images of underage females. During his employment with his current employer,
Applicant has engaged in dishonest conduct and rule violations by taking office
supplies, software programs, and proprietary information for personal use. His
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larcenous conduct also exposes him to prosecution under state criminal laws. Lastly,
Applicant deliberately omitted relevant information during the security investigation in
2004, 2007, and December 2010. 
After weighing and balancing the disqualifying conditions with mitigating
conditions, and considering all the evidence under the whole-person concept, Applicant
has not mitigated the security concerns arising under the sexual behavior, personal
conduct, and criminal conduct guidelines. 
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 through 1.e: Against Applicant
Paragraph 2 (Guideline E): AGAINST APPLICANT
Subparagraphs 2.a through 2.e: Against Applicant
Paragraph 3 (Guideline J): AGAINST APPLICANT
Subparagraph 3.a: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is denied. 
                      
Paul J. Mason
Administrative Judge