KEYWORD: Guideline I; Guideline D; Guideline E
DIGEST: The Judge’s finding that Applicant sought out and obtained appropriate, non-sexual
contact with young girls runs counter to the record evidence.  The presumption that the
polygrapher carried out his with good faith and regularity has not been overcome.  The Judge
improperly substituted a favorable credibility determination for record evidence.  Favorable
decision Remanded.
CASENO: 07-17801.a1
DATE: 12/06/2012
DATE: December 5, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-17801
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Kathryn D. MacKinnon, Esq., Deputy Chief Department Counsel
FOR APPLICANT
Joseph Testan, Esq.
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On February 4, 2011, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision—security concerns raised under Guideline I (Psychological
Conditions), Guideline D (Sexual Behavior), and Guideline E (Personal Conduct) of Department
of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
On April 25, 2012, after the hearing, Administrative Judge Richard A. Cefola granted Applicant’s
request for a security clearance.  Department Counsel appealed pursuant to the Directive ¶¶ E3.1.28
and E3.1.30.  In a Remand Order dated August 17, 2012, the Appeal Board remanded the case to
the Judge.  The remand resulted from the Board’s conclusion that the Judge has failed to consider
an important aspect of the case, namely Applicant’s allegedly improper contact with young girls.
On September 10, 2012, the Judge issued a Remand Decision again granting Applicant’s request for
a security clearance.  Department Counsel again appealed pursuant to the Directive ¶¶ E3.1.28 and
E3.1.30.   
Department Counsel raised the following issues on appeal: (a) whether the Judge failed to
discuss critical aspects of the evidentiary record; (b) whether the Judge’s conclusions under
Guideline D are arbitrary and capricious; (c) whether the Judge’s conclusions under Guideline E are
arbitrary and capricious; and (d) whether the Judge’s whole-person analysis is unsustainable.  For
the reasons discussed below, the Board remands the Judge’s favorable Remand Decision.
In his Remand Decision the Judge made the following pertinent findings of fact: Applicant
held a security clearance from 1977 to 1985 and again from 1995 to 2007.  He has never had a
security violation.  His security officer speaks most highly of the Applicant.
 Applicant grew up in what was, in many ways, a dysfunctional family.  In his mother’s eyes
he was “supposed to be a girl,” and she treated him as she would a daughter.  By age five, Applicant
was cross dressing, and by age eight, he began engaging in sadomasochistic acts by injuring himself.
His sadomasochistic behavior ceased in about 2004, and his treating psychiatrist gives Applicant
injections of medication to control his obsessive behavior.  Applicant admits he has sought
appropriate, non-sexual contact with young girls.  However, Applicant denies that he is sexually
attracted to, or has fantasies about inappropriate conduct with, young girls.  He avers that the
Government polygrapher put words in his mouth.  Based on observations of the Applicant, and on
the extensive outpouring of support by those who know Applicant, as evidenced by 14 letters of
support, his denials and testimony are most credible.
From 1980 to 1983 Applicant saw Psychiatrist A for a condition initially diagnosed as
Anxiety Reaction, and later changed to Depressive Neurosis.  He was prescribed medication to treat
his depression.  When Psychiatrist A moved, Applicant saw Psychiatrist B about every two weeks
from 1983 until Psychiatrist B passed away in 1998.  In 1995, Psychiatrist B noted that Applicant
was suffering from depression, anxiety, and obsessive-compulsive behavior.  He found no immoral
or deviant behavior.  Applicant’s prognosis was fair, and the doctor noted that good progress was
made.  The doctor found no impairment in judgment or reliability.  Since 1998, Applicant has seen
Psychiatrist C every two weeks for treatment of Obsessive Compulsive Disorder.  In September
3
2009, this treating psychiatrist noted that he was satisfied with the current state of therapy.  He noted
that Applicant had good control of his behavior and is highly unlikely to be influenced, coerced, or
manipulated because of his fantasies.  In March 2011, Psychiatrist C further noted that Applicant
is truthful and conscientious and would not permit his private fantasies to interfere with his ability
to protect sensitive government information.
In 2007, another government agency denied Applicant access to Sensitive Compartmented
Information (SCI), based on allegations similar to those contained in the SOR.  
In December 2008, Applicant met with a government psychologist for an hour.  Based on
that meeting and a review of unspecified records, the psychologist found a DSM IV diagnosis of
Obsessive Compulsive Disorder, Major Depression, recurrent, Pedophilia, Transvestic Festishism
(sic) and Sexual Masochism and Sadism.  He further found a defect in judgment, and less so in
reliability at that time, and concluded that these manifestations were likely to continue in the future.
In September 2010, the same government psychologist, armed with a review of specified records,
gave a more thorough psychological report.  He reiterated his previous diagnosis, but noted that
Applicant displayed no evidence of a defect in judgment, reliability or trustworthiness at work.  The
psychologist noted that when Applicant had sufficient duties at work to keep him preoccupied, he
felt productive, effective, appropriate, and like a valued contributor.
In February 2012, Psychiatrist C stated that Applicant does not have a medical condition, nor
is he receiving medical treatment that impairs his judgment, reliability, or trustworthiness in
safeguarding classified information
The Judge reached the following conclusions:  A government psychologist saw the Applicant
in December of 2008 and rendered an opinion regarding a condition that caused the psychologist
to question Applicant’s judgment.  This is countered, however, by the opinion of Applicant’s
treating psychiatrist, who has seen Applicant every two weeks for the last 14 years.  Mitigation
applies as there is no indication of a current problem.  Most recently, the treating psychiatrist opined
that Applicant does not have a medical condition, nor is he receiving medical treatment that impairs
his judgment, reliability, or trustworthiness in safeguarding classified national security information.
Disqualifying conditions under the Sexual Behavior Guideline are arguably applicable here.
Applicant has a history of sadomasochistic acts.  However, his last act of sadomasochism occurred
more than seven years ago, and he is administered injections to prevent any future such acts.  The
behavior no longer serves as a basis for coercion, exploitation, or duress.  The Applicant’s security
officer knows of his condition, and the Applicant’s spouse is also aware of it.  Under the Personal
Conduct Guideline, the Applicant was denied access to SCI by another government agency in 2007.
This is countered, however, by the fact that so much time has passed. . . that it is unlikely to recur
and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.  Since
then, his treating psychiatrist has deemed the Applicant to be trustworthy.  Applicant has the
unqualified support of those who know him in the work place and the community.  There are no
questions or doubts as to Applicant’s eligibility and suitability for a security clearance. 
1 This section of the Judge’s Remand Decision also added a brief portion of the testimony of Applicant’s
security officer, wherein the witness stated she was familiar with the evidence against Applicant, and the allegations
against him.  The witness then opined that Applicant could handle classified information appropriately, that he should
have his clearance reinstated, that he was not a pedophile, and that she would trust him alone with her granddaughters.
4
The main thrust of Department Counsel’s arguments on appeal is that, after remand, the
Judge’s consideration and analysis of the issue of Applicant’s thoughts and interactions with young
girls remains both erroneous and inadequate.  Department Counsel argues that the Judge’s failure
to properly address this issue affected his overall analysis of the case under the multiple
Adjudicative Guidelines set forth in the SOR.  The Board agrees.  In our Remand Order, the Board
concluded that the record evidence of Applicant’s encounters with female children was an important
aspect of the case that the Judge’s original Decision did not address.  Despite a slightly expanded
analysis, the Board concludes that the Judge’s Remand Decision suffers from the same basic
infirmity.
There is a large volume of evidence in this case regarding the issue of Applicant and female
children.  The record evidence reveals that this issue has essentially two components: (a) Applicant’s
thoughts and desires concerning young female children, and (b) actual physical contact between
Applicant and young female children.  Applicant also has a history of psychological problems
separate and apart from any interest in young girls.  Any meaningful analysis of the government’s
security concerns must include an overall evaluation of  these components in relation to one another
under all the Adjudicative Guidelines proffered in the SOR.  Applicant’s thoughts about young girls
are directly related to his actions with young girls and vice versa. These issues should also be
evaluated in the context of Applicant’s other psychological manifestations.  The Judge’s Remand
Decision takes a piecemeal approach where some of these issues are discussed under individual
guidelines but others are not addressed at all.  It is instructive to note that the evidence of a diagnosis
of pedophilia, as well as Applicant’s thoughts and interactions regarding young girls– arguably the
most potent evidence of concern in the evidentiary record– is not specifically mentioned or
discussed anywhere in the analysis section of the Judge’s Remand Decision.    
Department Counsel objects to the Judge’s findings regarding Applicant’s issues with young
girls.  She states that the Judge’s fact-finding is clearly erroneous and is contradicted by admissions
made by Applicant.  She states that the Judge essentially substituted a favorable credibility
determination for a critical examination of record facts.  She then asserts that there is no reasonable
basis for the credibility determination made by the Judge.  These arguments have merit.
In the original Decision, the full extent of the Judge’s fact-finding on the issue of Applicant’s
interest in young girls consisted only of the Judge’s notation that Applicant denied the allegations
in the SOR, (fantasies about inappropriate conduct with young girls, non-sexual contact with young
girls) and claimed that a government polygrapher put words in his mouth.  The Judge then stated that
an extensive outpouring of support for Applicant by those who knew him plus his observations of
Applicant supported a finding that Applicant’s denials and his testimony were most credible.  The
findings in the Remand Decision differ only slightly from those in the original, and, practically
speaking, include only one additional sentence.1  In that sentence, the Judge notes that Applicant
The Judge offers no comments about this testimony, other than to find, by way of introduction, that “His Security Officer
speaks most highly of the Applicant.”  The Judge does not relate the colloquy to any other evidence.  Its probative value
is limited in that it provides no specifics as to which thoughts and actions of Applicant toward young girls the witness
was aware of.  The witness also offered a medical opinion that she was not qualified to make.  Therefore, the inclusion
of this package of testimony, though an expansion of the Judge’s original decision, does not satisfy the Board’s Remand
Order instruction to address an important aspect of the case, either considered alone, or in conjunction with the additional
sentence referenced above.     
2Govt. Exhibit 3, Govt. Exhibit 10.
3 Id.
4 Id.
5 Id.
6 Id.
7 Id.
5
admits he has sought appropriate, non-sexual contact with young girls.  The Judge’s earlier notations
about Applicant’s denials of sexual attraction, fantasies about inappropriate conduct, and his
averment that the government polygrapher put words in his mouth were repeated.  As in the original
Decision, the Judge then referenced his observations of Applicant and the indication of support from
others when finding that Applicant’s denials were credible.
The Board concluded in its Remand Order that the Judge’s original finding that Applicant
had not sought out contact with young girls was unsustainable.  Now the Judge has found that
Applicant has sought out and obtained appropriate, non-sexual contact with young girls.  Department
Counsel argues that such a finding runs contrary to the record evidence.  The Board agrees.  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).  In this case the record evidence includes the
following: (a) an admission in 2006 that during the preceding 10 to 15 years, Applicant realized he
was attracted to girls from age three to twelve2; (b) an admission that he had the desire to touch a
young girl in a sexual manner and that he had “. . . lots of desires in my head.”3; (c) an admission
by Applicant that there is something in his head that is “considerably dangerous” and that he worries
about it4; (d) an admission that as long as he only did things to himself, he was reasonably safe, but
there were worse things a person could do, and he was attracted to young girls, and he knew that this
was the most dangerous thing5; (e) an admission that he might masturbate to the memory of contacts
with little girls or might want to wrap his arms around a young girl and masturbate later.6; (f) a
statement admitting a desire to lick a young girl’s genitals7; (g) testimony from Applicant where he
indicated that he approached the polygraph and interviews (the source of the admissions and
evidence listed above) in a manner that was fully cooperative, and that he was “blisteringly honest”
8 Transcript at 64, 65, 79.
9 Applicant’s Exhibit A, 2009 Statement.
10 Government Exhibit 3, Government Exhibit10; Transcript at 85-89, 90-91, 100.
11 Government Exhibit 10. 
12 Transcript at 88-89.
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with the polygraph examiner8; (h) an opinion from Applicant’s treating psychiatrist that he believed
Applicant had been honest with the polygrapher9;  (i) evidence, partly derived from the treatment
notes of Applicant’s treating psychiatrist, of numerous instances of physical contact with young
girls, to include kissing, scratching, rubbing of the back, wrapping of the arms around them, and
having them sit in his lap10; (j) evidence of incidents such as Applicant seeking and engaging in
contact with a young girl in a park which provoked a strong response from the girl’s father,
Applicant kissing four-year-old girls on the head at his son’s preschool which prompted a complaint
from a parent and a warning from the school, and a forty minute encounter with a five-year-old girl
at a library where Applicant sat her on his lap and put his arms around her and later described the
incident as a “courtship”11; and (k) while denying during his testimony at his hearing that there was
any sexual gratification motivation behind his obsession with little girls, he did state that the
physical contact gave him a “warm and protective” feeling.12       
This large body of evidence was barely mentioned by the Judge in his findings of fact, and,
as indicated earlier, it was mentioned only in the context of noting Applicant’s general denial of any
improper or questionable conduct.  The Judge then found Applicant credible, and accepted
Applicant’s denial without making any attempt to analyze the evidence or evaluate it in the context
of other record evidence.  Applicant’s later denials of improper conduct or sexual thoughts or
motivations toward young girls was evidence that the Judge was entitled to consider.  Also, the
expert opinion evidence regarding pedophilia can best be described as mixed.  However, setting
aside the issue of whether or not Applicant’s attraction to and contact with young girls had a sexual
component, given the record evidence cited in the preceding paragraph, the Board concludes that
the record provides no basis for any reasonable person to view Applicant’s interactions with young
girls as appropriate conduct. 
Without a meaningful discussion of the evidence regarding the issue of Applicant and young
girls, little is left in the Judge’s Remand Decision beyond a credibility determination.  The Judge
found Applicant’s denials of sexual or inappropriate conduct credible, notwithstanding the fact that
the denials conflict significantly with numerous previous admissions made by Applicant over an
extended period of time.  The deference owed to a Judge’s credibility determinations does not
immunize them from review, nor does it preclude the Board from concluding that a challenged
credibility determination cannot be sustained.  See, e.g., ISCR Case No. 97-0356 at 3 (App. Bd. Apr.
21, 1998).  The Judge’s credibility determination is flawed inasmuch as it ignores the inconsistencies
in Applicant’s version of events while at the same time insinuating that the government polygrapher
engaged in improper conduct  in interviewing Applicant and recording his responses.  The Board
13 Transcript at 80-82; Applicant’s Answer to the SOR.
7
has long recognized that Federal agencies and their employees, like the polygrapher, are entitled to
a presumption of good faith and regularity in the performance of their responsibilities.  See, e.g.,
ISCR Case No. 11-03452 at 4 (App. Bd. Jun. 6, 2012).  This presumption is not overcome by the
Judge’s reliance solely on the testimony of Applicant without additional objective evidence
corroborating misconduct on the part of the polygrapher or malfeasance in the performance of his
duties.  
Moreover, the Judge proffers Applicant’s averment “that the Government polygrapher put
words in his mouth” as a blanket statement, presumably to discount all evidence of Applicant’s
sexually motivated or inappropriate thoughts and actions involving young girls.  The record does
not support this blanket finding of fact.  The only instance where Applicant offers any evidence at
all about the polygrapher suggesting an answer or forcing him into an answer he did not believe to
be true was the discussion about Applicant’s thoughts concerning licking a young girl’s genitals.13
Even if Applicant’s version of events is accepted in this specific instance, it would not significantly
undercut the numerous other admissions made by Applicant regarding young girls, where Applicant
has made no suggestion that the contents of the polygrapher’s reports of investigation are inaccurate.
The Judge’s credibility determination is also based in large part on the “extensive outpouring
of support by those who know Applicant.”  This, too, was evidence that the Judge was entitled to
consider, and it has some probative value in assessing Applicant’s character and reputation.
However, the probative value of such evidence as a determinant of Applicant’s credibility is
significantly limited by the fact that none of the 14 letters of support indicate any knowledge of the
allegations in the SOR.  The letters are overwhelmingly concerned with Applicant’s professional
skills and reputation.  Those that comment on his honesty (approximately half) do not do so outside
the context of the workplace.  Only two of the letters indicate that the writers knew about
Applicant’s loss of an earlier security clearance.  Only one mentions his personal life.  The Judge
fails to explain how the content of these letters bolsters the believability of Applicant’s denials,
given the countervailing evidence in the record.
To summarize, the Board concludes that the Judge’s favorable credibility determination of
Applicant was improperly used as a substitute for record evidence in this case.  The credibility
determination itself is unsustainable absent a more cogent explanation than currently exists as to
why  Applicant’s current denials are more believable than his extensive earlier admissions.
Department Counsel asserts, accurately, that the record demonstrates that Applicant had a
complex mental health condition that has manifested itself in many ways over his lifetime.  Her
further assertion that the Judge’s Remand Decision does not fully examine the complexity of this
profile is fair criticism.  The failure of the Judge to adequately consider Applicant’s issues with
young girls has already been discussed.  Additionally, the Judge’s analysis under Guideline I does
not discuss the various other components of Applicant’s psychological profile, such as his self-
damaging sadomasochistic behavior or his sexually violent fantasies toward adult women.  The state
of the expert opinion evidence regarding Applicant’s mental condition, which the Judge does
8
mention, is conflicting, and as such does not mandate a particular conclusion.  However, the expert
opinion evidence must be evaluated in the context of Applicant’s psychological history as a whole
as well as Applicant’s behavior.    
Similarly, the Judge’s analysis under Guideline D talks only about the history of
sadomasochistic acts while neglecting to analyze, or at least comment upon, those acts in the context
of Applicant’s fantasies and his contact with young girls.  In light of the Board’s conclusions
concerning the sustainability of the Judge’s findings of fact and his credibility determination, the
issue of whether there was a sexual context involved with Applicant’s attraction to young girls
should be re-evaluated.  
Under Guideline E, the Judge’s Remand Decision mentions only the denial of access to SCI
by another government agency in 2007, without any analysis as to underlying conduct.  Given the
Board’s conclusion that the record evidence establishes that Applicant’s interactions with young
girls were inappropriate, and given the Board’s conclusion that there is significant evidence
indicating that Applicant’s interest in young girls had a sexual orientation, a specific discussion is
needed as to whether this evidences questionable judgment that is of security concern regardless of
the passage of time.
Both Department Counsel and Applicant make various other arguments on appeal.  The
Board will not address these.  In essence, these arguments amount to each side offering its
interpretation of the record evidence.  While each side offers an interpretation that is plausible,
neither establishes that the other interpretation is unsupported by the record evidence.     
In his Remand Decision, the Judge made a slightly modified finding of fact (that the
Applicant sought out and engaged in appropriate conduct with young girls as opposed to a finding
that he had not sought out contact with young girls in his original Decision).  This modified finding
is not sustainable.  The Judge did not correct his earlier failure to engage in a meaningful discussion
of Applicant’s issues with young girls, nor did he relate those issues to other evidence in the case.
The Judge also engaged in a piecemeal analysis of Guidelines I, J and E, and left out important
aspects of the case in his analysis of each.  The Board remands the case to the Judge for correction
of these errors and the others discussed in this Decision.
Order    
In accordance with the Board’s preceding discussion, the Judge’s Remand Decision is
REMANDED.  The Judge shall issue a new Decision consistent with the analysis contained herein.
Signed: Jeffrey D. Billett          
Jeffrey D. Billett
Administrative Judge
9
Member, Appeal Board
Signed: Jean E. Smallin              
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody            
James E. Moody
Administrative Judge
Member, Appeal Board