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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 07-17801
)
)
Applicant for Security Clearance )
Appearances
For Government: Kathryn D. MacKinnon, Esquire, Deputy Chief Department Counsel
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Joseph Testan, Esquire
January 10, 2013
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Remand Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Security Clearance Application (SCA) on October
16, 2007.  On February 4, 2011, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
I, D and E for the Applicant.  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 after
September 1, 2006. 
The Applicant acknowledged receipt of the SOR on February 15, 2011.  He
answered the SOR in writing on March 14, 2011, and requested a hearing before an
Administrative Judge.  DOHA received the request on March 17, 2011, and I received
the case assignment on January 24, 2012.  DOHA issued a notice of hearing on
January 26, 2012, and I convened the hearing as scheduled on February 22, 2012.  The
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Government offered Exhibits (GXs) 1 through 10, which were received without
objection.  The Applicant testified on his own behalf, as did his Security Officer, and
submitted Exhibits (AppXs) A through F, which were received without objection.  DOHA
received the transcript of the hearing (TR) on March 7, 2012.  I granted the Applicant’s
requests, one made at his hearing and the other one after his hearing, to keep the
record open until April 10, 2012, to submit additional matters, to include a Closing
Argument.  On March 22, 2012, through Department Counsel, the Applicant’s Counsel
submitted “Applicant’s Closing Argument.”  The record closed on April 10, 2012.  Based
upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified
information was granted, and a Decision was issued on April 25, 2012.  The
Government appealed this Decision.  “Department Counsel raised the following issues
on appeal: whether the Judge failed to consider critical aspects of the record; whether
the Judge erred in his application of the mitigating conditions; and whether the Judge’s
whole-person analysis was erroneous.”  (Appeal Board Decision dated August 17, 2012
(Decision 1) at page 1.)
On August 17, 2012, the DOHA Appeal Board remanded this case, specifically
noting the following:
The Judge’s failure to discuss Applicant’s contact with children impaired
his analysis of the mitigating conditions and the whole-person factors.  We
conclude that the best resolution is to remand the case to the Judge for a
new decision.  The other issues raised by Department Counsel are not
ripe for discussion.  (Decision 1 at page 3.)
On September 10, 2012, I issued a Remand Decision, addressing the Appeal
Board’s above noted concerns, again granting the Applicant access to classified
information.  However, on December 5, 2012, the DOHA Appeal Board remanded this
case (Decision 2), with further instructions.  (Decision 2 at pages 3~8).  The Appeal
Board notes the following:
The main thrust of Department Counsel’s arguments on appeal is that,
after remand, the Judge’s considerations 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 [I, D and E] set forth in the
SOR.  The Board agrees.  (Decision 2 at page 3, emphasis supplied.)
Findings of Fact
In his Answer to the SOR, the Applicant admitted the factual allegations in
Subparagraphs 1.a.~1.e. of the SOR, with explanations.  He denied the factual
allegations in Subparagraphs 1.f.~1.I., 2.a. and 3.a. of the SOR.  He also provided
additional information to support his request for eligibility for a security clearance.
The Appeal Board correctly notes that “[t]he witness . . . offered a medical opinion that she was not qualified to1
make.”  (Decision 2 in Footnote 1 at page 4.)  This is correct, but as she was responding to a question by Department
Counsel, and as Department Counsel did not ask me to disregard that part of her testimony, it is part of the record.  It
is her opinion, but clearly not the opinion of an expert witness.
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Psychological Conditions & Sexual Behavior
The Applicant held a security clearance “from 1977 to 1985,” and again from
1995 to 2007.  (TR at page 60 line 17 to page 67 line 10.)  He has never had a security
violation.  (Id.)  His Security Officer speaks most highly of the Applicant.  (TR at page 41
line 9 to page 52 line 18.)  She has known the Applicant for “[a]pproximately five years.”
(TR at page 43 line 19.)  The following colloquy occurred between her and Applicant’s
Counsel:
Q Okay.  So, you’re familiar with the evidence against him here today?
A Yes, I am.
Q And the allegations against him?
A Yes.
Q Based on what you know of . . . [the Applicant] and your experience in
the Industry and what NSA - - the position they’ve taken - - what’s your
opinion about how he’s been treated?
A I think they have operated on some basis that I just don’t think are(sic)
sound.  I think it’s a shame that he does not have his Clearance.  I think
his Clearance should be reinstated.  Everything that I’ve seen of him says
he can handle safeguarding classified information appropriately and is not
a threat to national security in any way, shape or form.  (TR at page 45
lines 1~21.)
In addition, the following colloquy occurred with Department Counsel:
Q Okay.  You mentioned your daughters who are older now, but assuming
you had granddaughters, would you have any hesitation to allow . . . [the
Applicant] to be alone with your granddaughters?
A Absolutely not.  He is not - - anything that I’ve seen or read, not a
pedophile .  I just think that’s wrong.  It’s a wrong conclusion.1
Q Do you believe that any of his conduct which he has admitted to would
in any way compromise his ability to safeguard classified information?
A Absolutely not.  (TR at page 48 line 23 to page 49 line 11.)
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1.a.~1.i. and 2.a.  The Applicant grew up in what was in many ways a
dysfunctional family.  He was “the youngest of three sons”; but in his mother’s eyes, he
“was supposed to be a girl.”  (TR at page 65 line 5 to page 67 line 10.)  His mother
treated him as she would a daughter.  By age five he was cross-dressing, and by age
eight he began engaging in sadomasochistic acts by injuring himself.  (Id.)  His
sadomasochistic behavior ceased in about 2004, and his treating Psychiatrist gives the
Applicant injections of medication to control his obsessive behavior.  (GX 3 at pages
9~11.)
It is also alleged that the Applicant is sexually attracted to young girls, has
fantasies about inappropriate conduct with young girls, and has sought non-sexual
contact with young girls.  (GX 3 at pages 14~15, 17~19 and 22~23.)  The Applicant
admits he has sought what he avers to be appropriate, non-sexual, conduct with young
girls.  (TR at page 80 line 14 to page 84 line 9, and GX 10 at pages 4~8.)  However, the
Applicant denies that he is sexually attracted to, or has fantasies about inappropriate
conduct with, young girls.  (TR at page 80 line 14 to page 84 line 9.)
The Appeal Board finds that “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 . . . , the Board concludes that the record provides no basis for any reasonable
person to view Applicant’s interactions with young girls as appropriate conduct.”
(Decision 2 at page 6.)  As the Appeal Board ordered that I “issue a new Decision
consistent with the analysis contained herein” (Decision 2 at page 8), I find that the
Applicant’s conduct, delineated at length in the Appeal Board’s Decision (Decision 2 at
pages 5~6), to be inappropriate.
From 1980~1983, the Applicant saw Psychiatrist A for a condition initially
diagnosed as Anxiety Reaction, and later changed to Depressive Neurosis.  (TR at
page 67 line 11 to page 68 line 18, and GX 3 at page 9.)  He was prescribed medication
to treat his Depression.  (Id.)  When Psychiatrist A moved, the Applicant saw
Psychiatrist B, who had purchased Psychiatrist A’s practice.  (TR at page 68 line 19 to
page 72 line 13.)
Psychiatrist B saw the Applicant about every two weeks from 1983 until
Psychiatrist B passed away in 1998.  (Id, and TR at page 72 lines 21~23.)  In October
of 1995, this treating psychiatrist answered a “Medical Information Questionnaire”
regarding the Applicant.  (GX 6.)  In part, Psychiatrist B noted that the Applicant was
suffering from, “Depression, anxiety and obsessive-compulsive behavior.”  (GX 6 at
page 1.)  He found “no immoral or deviant behavior.”  (Id.)  His prognosis was “fair good
progress made.”  (GX 6 at page 2.)  He found “no impairment” in judgement or
reliability.  (Id.)
Since 1998, the Applicant has seen Psychiatrist C every two weeks “for
treatment of Obsessive Compulsive Disorder.”  (TR at page 72 line 14 to page 75 line
11, at page 115 line 1 to page 116 line 14, GX 9, and AppX A at pages 3 and 4.)  In
September of 2009, this treating Psychiatrist noted, in part, the following: “I am satisfied
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with the current state of therapy.  He has good control of his behavior and is highly
unlikely to be influenced, coerced, or manipulated because of his fantasies.”  (AppX A at
page 4.)  In March of 2011, his treating Psychiatrist further noted that the Applicant “is
truthful and conscientious and would not permit his private fantasies to interfere with his
ability to protect sensitive government information.”
However, in December of 2008, the Applicant met with a Government
Psychologist for an hour; and based on that meeting and a review of unspecified
records, he found a “DSM IV diagnosis of Obsessive Compulsive Disorder, Major
Depression, recurrent, Pedophilia, Transvestic Festishism (sic), and Sexual Masochism
and Sadism.”  (GX 7.)  He further found “a defect in judgment, and less so in reliability
at the time, and it is likely to continue in the future.”  (Id.)
In September of 2010, this same Government Psychologist, armed with the
review of specified records, gave a more thorough Psychological Report.  He reiterated
his previous diagnosis, but noted, in part, the following: “There is no evidence of a
defect in judgment, reliability or trustworthiness at work.  When he has sufficient duties
at work to keep him preoccupied, he feels productive, effective, appropriate, and that he
is a valued contributor.”  (GX 8 at page 3.)
Most recently, in February of 2012, his current treating Psychiatrist,
Psychiatrist C, opined the following: “This is to verify that my patient, . . . [the
Applicant], does not have a medical condition nor is he receiving medical treatment that
impairs his judgment, reliability, or trustworthiness in safe-guarding classified national
security information.”  (AppX A at page 1.)
Personal Conduct
3.a.  In February of 2007, another Government Agency denied the Applicant
access to SCI, based on allegations similar to those noted above; i.e., Psychological
Conditions, Sexual Behavior, and Personal Conduct.  (GX 10 at pages 3~12.)
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG).  In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are useful 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 over-arching
adjudicative goal is a fair, impartial and commonsense decision.  According to AG
Paragraph 2(c), the entire process is a conscientious scrutiny of a number of variables
known as the “whole-person concept.”  The administrative judge must consider all
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available, reliable information about the person, past and present, favorable and
unfavorable, in making a decision.
The protection of the national security is the paramount consideration.  AG
Paragraph 2(b) requires that “[a]ny 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 Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph 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 as to 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.  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 potential, rather than actual, risk of compromise of
classified information.
Section 7 of Executive Order 10865 provides that decisions shall be “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
Psychological Conditions
The concern under Paragraph 27 is that, “Certain emotional, mental, and
personality conditions can impair judgment, reliability, or trustworthiness.”  Here, a
Government Psychologist saw the Appellant in December of 2008, and made a
diagnosis.  The disqualifying condition under Paragraph 28(b) is applicable as there
appears to be “an opinion by a duly qualified mental health professional that the
individual has a condition not covered under any other guideline that may impair
judgement, reliability, or trustworthiness.”  That diagnosis called into question the
Applicant’s judgement.
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This is countered, however, by the opinion of his treating Psychiatrist, who has
seen the Applicant every two weeks for the last 14 years.  The mitigating condition
under Paragraph 29(e) clearly applies, as “there is no indication of a current problem.”
Here, most recently, the Applicant’s treating Psychiatrist opined that the Applicant,
“does not have a medical condition nor is he receiving medical treatment that impairs
his judgment, reliability, or trustworthiness in safe-guarding classified national security
information.”
Sexual Behavior
Paragraph 12 sets out the security concern relating to Sexual Behavior.  “Sexual
behavior that involves a criminal offense, indicates a personality or emotional disorder,
reflects lack of judgement or discretion, or which may subject the individual to undue
influence or coercion, exploitation, or duress can raise questions about an individual’s
reliability, trustworthiness and ability to protect classified information.”
The disqualifying conditions described by Subparagraphs 13(b) and 13(c) are
arguably applicable here.  Subparagraph 13(b) proscribes “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.”  The Applicant has a history of sadomasochistic
acts, which involve self harm.  Subparagraph 13(c) proscribes “sexual behavior that
causes an individual to be vulnerable to coercion, exploitation, or duress.”  These
disqualifying conditions are countered, however, by Subparagraphs 14(b) and 14(c).
Subparagraph 14(b) finds it mitigating where “the sexual behavior happened so long
ago, . . . that it is unlikely to recur and does not cast doubt on the individual’s current
reliability, trustworthiness, or good judgment.”  His last act of sadomasochism occurred
more than seven years ago, and he is administered injections to prevent any future
such acts.  Furthermore, under Subparagraph 14(c) “the behavior no longer serves as a
basis for coercion, exploitation, or duress.”  The Applicant’s Security Officer, who
testified at his hearing, knows of his condition, and the Applicant’s spouse, who sat
through his hearing, is also aware of it.  (TR at page 41 line 9 to page 52 line 18, at
page 84 line 24 to page 25 line 5, and at page 85 line 21 to page 86 line 12.)
Personal Conduct
The security concern for Personal Conduct is set out in AG Paragraph 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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(c), “credible adverse information in several adjudicative issue 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
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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.”  Here, the Applicant has engaged in
inappropriate conduct, vis-a-vis young girls, on numerous occasions.  I can find no
countervailing mitigating condition that is applicable, here.
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 circumstances.  Under AG Paragraph 2(c), the ultimate
determination of whether to grant eligibility for a security clearance must be an overall
common sense judgment based upon careful consideration of the guidelines and the
whole-person concept.  The Administrative Judge should also consider the nine
adjudicative process factors listed at AG Paragraph 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 all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Although the Applicant has the unqualified
support of those who know him in the work place and in the community (AppX B), I
cannot ignore his numerous acts of inappropriate conduct.  The record evidence leaves
me with questions and doubts as to Applicant’s eligibility and suitability for a security
clearance.  For all these reasons, I conclude Applicant has not mitigated the security
concerns arising from his Personal Conduct. 
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 I: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
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Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Subparagraph 1.g: For Applicant
Subparagraph 1.h: For Applicant
Subparagraph 1.I: For Applicant
Paragraph 2, Guideline D: FOR APPLICANT
Subparagraph 2.a: For Applicant
Paragraph 3, Guideline E: 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 the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
Richard A. Cefola
Administrative Judge