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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 11-05586 
  ) 
  )  
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Caroline H. Jeffreys, Esq., Department Counsel 
For Applicant: Brian Musell, Esq. 
 
 
 
______________ 
 
 
Decision 
______________ 
 
 
COACHER, Robert E., Administrative Judge: 
 
Applicant failed to mitigate the Government’s security concerns under Guideline 
D, Sexual Behavior, Guideline J, Criminal Conduct, and Guideline E, Personal Conduct. 
Applicant’s eligibility for a security clearance is denied. 
 
Statement of the Case 
 
On August 3, 2012, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns under Guidelines D, J, and E. 
DOD acted 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 DOD on 
September 1, 2006. 
 
 
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Applicant answered (Answer) the SOR on August 31, 2012, and requested a 
hearing before an administrative judge. The case was assigned to me on October 15, 
2012. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing 
on November 13, 2012, and the hearing was convened as scheduled on December 4, 
2012. The Government offered exhibits (GE) 1 through 8, which were admitted into the 
record without objection. Department Counsel’s exhibit index is marked as Hearing 
Exhibit (HE) I. Applicant testified, called six witnesses, and offered exhibits (AE) A 
through F that were admitted into the record without objection. DOHA received the 
hearing transcript (Tr.) on December 17, 2012.  
 
Findings of Fact 
 
In Applicant’s answer to the SOR, he admitted all the underlying factual 
allegations. The admissions are incorporated as findings of fact. After a thorough and 
careful review of the pleadings, testimony, and exhibits submitted, I make the following 
additional findings of fact. 
 
 Applicant is 66 years old. He has worked for a defense contractor since October 
2005. He was married in 1969. He has one adult son and two young grandchildren. He 
has a bachelor’s degree. He has no military experience and currently holds a security 
clearance.1   
  
 Applicant’s conduct raised in the SOR includes: (1) exposing himself in public, 
specifically when he was 15 years old to a neighbor girl (admitted); (2) exposing himself, 
with the intent to be viewed by young girls, on at least two occasions between 1997 and 
1999 (admitted); and (3) being arrested and charged with indecent exposure on August 
20, 2010, to which he pleaded guilty on December 16, 2010, and for which he was 
sentenced to four years supervised probation, ordered to complete sex offender 
treatment, and required to register as a sex offender on February 16, 2011 (admitted). 
This same conduct is alleged under Guideline D, Guideline J, and Guideline E. 
  
 When Applicant was about 15 years old, he exposed himself to a neighbor girl. 
He thought the girl was about 14 years old at the time. The incident was not reported to 
the police, but the parents of the girl told Applicant’s father about the incident. As a 
result of the incident, Applicant began seeing a counselor. The counseling lasted about 
one year, and then Applicant stopped attending because his father believed he did not 
need to go anymore. Applicant attempted to expose himself when he was 16 years old. 
This exposure occurred after he attended the earlier counseling. He did not report this 
incident to a defense investigator when he was questioned in January 2011. Although 
there are no written records supporting it, he claims he brought up this incident with the 
counselors he was required to see as a result of his December 2010 conviction. He did 
reveal this incident during cross-examination of his hearing testimony.2  
                                                          
1 Tr. at 161; GE 1, 2. 
 
2 Tr. at 135-136, 164; GE 4. 
 
 
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 The next incident occurred during the summer of 1969, when he attempted to 
expose himself. No further information was given. This admission was not disclosed 
until brought out on cross-examination. The next period of time that he exposed himself 
was from 1970 to 1972 when he went to a local mall. He ended up staying in the car 
and masturbating. He did this on four or five occasions. This admission was not 
disclosed until brought out on cross-examination. The next incident occurred in about 
1974 when he again drove to an area and masturbated in his car. He told his wife about 
this single incident and they began seeing a counselor. The counseling dealt more with 
marital issues than it did with his compulsive behavior. There is no information about 
how long he attended counseling at the time. The next time frame that he attempted to 
expose himself in public was about 1997. He would go to a public park wearing very 
tight shorts and attempted to expose himself to some young girls by leaning down to tie 
his shoe which would expose his genitals. His actions did not gain the attention of the 
girls he targeted. He was attracted to high school and college-age girls who wore 
shorts, or what he considered to be revealing clothes.3  
 
 On August 20, 2010, Applicant went to a local shopping mall. While eating in the 
food court area of the mall, he developed an urge to expose himself to two teenage girls 
who were eating there. He was wearing tight shorts and by moving and positioning his 
legs, his genitals became visible. He intended to expose himself to the girls. One of the 
girls saw him, immediately got up, and notified mall security. Applicant got up and left 
the food court area, went to the parking lot and got into his car, but before he could 
leave he was stopped by a police officer. He initially denied exposing himself, but later 
admitted it. He was arrested and charged with indecent exposure, a Class 1 
Misdemeanor. He pleaded guilty to the charge and was sentenced to four years 
supervised probation, mandatory sex offender counseling, and registration as a sex 
offender. Some of the conditions of his probation included, among other things, no 
contact with children under 18 years old, submission to psychological testing, and 
participation in polygraph examinations. He has had no probation violations to date and 
will remain on probation until about February 2015.4  
 
 Applicant began his mandatory group therapy with a sex-offense-specific 
evaluation that was completed in September 2010. He attended eight group or 
individual therapy sessions through December 2010. He then withdrew from this 
treatment program to find one that was closer to his home residence. At the time of his 
withdrawal, his therapist indicated that he had several risk factors that increased his risk 
of recidivism. These factors included “stranger and/or unrelated victim, sexual 
preoccupation, and deviant arousal pattern.” The therapist also noted that because he 
scored on the low range on several sexual prediction instruments, he was viewed as 
having a low risk of re-offending. Finally, the therapist stated that he was still in need of 
                                                          
3 Tr. at 140, 166-168; GE 4. 
 
4 Tr. at 150, 182; GE 4. 
 
 
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offense-specific treatment because he was only in the beginning stages when he 
voluntarily withdrew from treatment.5 
 
 Applicant introduced a letter from the follow-on sexual treatment program that he 
entered in December 2010. He has participated in group and individual counseling 
sessions. He has also taken several polygraph tests, including one that described his 
past sexual history. He passed four of the polygraph tests and had two with inconclusive 
results. No detailed records from this treatment program were included in the record.6 
 
 Applicant also offered the testimony of his treating clinical psychologist (Dr. F). 
He began treating Applicant in August 2010. Applicant is participating in his treatment 
voluntarily and at his own expense. As of November 2012, he had completed 95 
appointments with Dr. F. Dr. F has worked with sex offenders in the past, but that is not 
an area of psychology in which he specializes. Dr. F stated that Applicant is through the 
first stage of disclosure, of which there are three stages. He believes Applicant has 
made progress with his treatment because there have been no relapses. Applicant also 
has been diagnosed with cyclical depression. He is taking medication for this condition. 
Dr. F has not read the Applicant’s treatment records from either of the two sex offender 
programs Applicant has attended, nor has he contacted any of Applicant’s therapists or 
counselors from those programs. Dr. F indicated that since Applicant has exposed 
himself more than four times, he meets the diagnostic criteria for severe exhibitionism. 
The targets for his exhibitionist behavior are teenage or young adult females between 
the ages of 14 to 20. When asked directly why Applicant engaged in this type of 
behavior, Dr. F stated that he is still exploring that question with him. Dr. F believes that 
Applicant is treatable and has available to him all the elements of a successful 
treatment program. He also believes Applicant needs at least one more year of 
treatment with him. He acknowledged that Applicant will have to continue treatment 
through the sex offender program for the duration of his probation. Using the Diagnostic 
and Statistical Manual (DSM) IV-TR, Dr. F diagnosed Applicant under Axis II as having 
“Exhibitionism.”7 
 
 The terms of Applicant’s probation have affected his daily lifestyle in several 
ways. He is required to complete a safety plan for any trip he makes away from his 
house. This plan must be approved by his counselor and his probation officer. He also 
is required to obtain temporary travel permits when he intends to leave town. He is not 
allowed to see his two grandchildren or to view pictures of them.8 
 
 In his hearing testimony, Applicant admitted that he did not disclose the full 
extent of his previous exposure incidents to the defense investigator in January 2011. In 
                                                          
5 GE 6. 
 
6 Tr. at 148-150; AE A. 
 
7 Tr. at 97-129; GE 5. 
 
8 Tr. at 146, 151; GE 5; AE E. 
 
 
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his testimony, he admitted to a possible 40 previous exposure incidents, while only 
admitting to four previous incidents to the investigator. He stated that he knew at the 
time he was minimizing his previous number of exposure incidents. He kept his 
behavior a secret and only divulged the full extent of his actions to his wife after his 
arrest in 2010. When asked about his secretive behavior, he said he kept his actions 
secret to fulfill his own sexual gratification.9 
 
 Applicant presented the testimony of friends, colleagues, and his current 
supervisor who all indicated that he was trustworthy, reliable and an outstanding 
engineer. He also produced several company awards he received for outstanding 
achievement.10  
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are used 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 overarching 
adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 
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 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 ¶ 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. 
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is 
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 
mitigate facts admitted by applicant or proven by Department Counsel, and has the 
ultimate burden of persuasion to obtain 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 
                                                          
9 Tr. at 147, 172, 177-178. 
 
10 Tr. at 30-89; AE B-C. 
 
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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 that an applicant may deliberately or inadvertently fail to 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 
 
Guideline D, Sexual Behavior 
 
 AG ¶ 12 expresses 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 an individual's reliability, trustworthiness 
and ability to protect classified information. No adverse inference 
concerning the standards in this guideline may be raised solely on the 
basis of the sexual orientation of the individual. 
 
I have considered all of the Sexual Behavior disqualifying conditions under AG ¶ 
13 and the following are potentially applicable: 
(a) sexual behavior of a criminal nature, whether or not the individual has 
been prosecuted; 
(b) 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; 
(c) sexual behavior that causes an individual to be vulnerable to coercion, 
exploitation, or duress; and 
(d) sexual behavior of a public nature and/or that reflects lack of discretion 
or judgment. 
 Applicant exposed himself on numerous occasions to young females over the 
past 50 years. He was arrested, convicted, and sentenced in 2011 for exposing himself 
to a teenage girl in a public place in 2010. He has been diagnosed by a psychologist as 
 
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an exhibitionist. He kept his behavior secret thus making him vulnerable to coercion, 
exploitation, or duress. All his actions were criminal, demonstrated a pattern of 
compulsive sexual behavior, were of a public nature that reflected a lack of judgment, 
and caused him to be vulnerable to coercion, exploitation, or duress. All the above listed 
disqualifying conditions apply.   
I have considered all of the Sexual Behavior mitigating conditions under AG ¶ 14 
and the following are potentially applicable: 
 
(a) the behavior occurred prior to or during adolescence and there is no 
evidence of subsequent conduct of a similar nature; 
(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 current reliability, trustworthiness, or good 
judgment;  
(c) the behavior no longer serves as a basis for coercion, exploitation, or 
duress; and  
(d) the sexual behavior is strictly private, consensual, and discreet. 
 
 Although Applicant’s first two exposures occurred when he was an adolescent, 
he continued his exposing behavior beyond adolescence. AG ¶ 14(a) does not apply. 
Applicant’s last exposure occurred in 2010; however, considering that he engaged in 
similar behavior over the course of about 50 years, it cannot be determined at this point 
that the behavior is unlikely to recur. His actions cast doubt on his trustworthiness and 
good judgment. AG ¶ 14(b) does not apply. He finally disclosed his actions to his wife 
and some of his friends and colleagues. Additionally, as part of his sex offender 
counseling, he is required to disclose his sexual history, and have that history 
corroborated by passing a polygraph test. AG ¶ 14(c) applies. His exposure took place 
in public and his victims did not consent to his actions. AG ¶ 14(a) does not apply.   
 
Guideline J, Criminal Conduct  
 
The security concern relating to the guideline for Criminal Conduct is set out in 
AG ¶ 30: 
 
Criminal activity creates doubt about an Applicant’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. 
 
 AG ¶ 31 describes conditions that could raise a security concern and may be 
disqualifying in this case. The following are potentially applicable:  
 
 
 
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(a) a single serious crime or multiple lesser offenses;  
 
(c) allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted; and 
 
(d) individual is currently on probation. 
 
Applicant pled guilty to a Class 1 Misdemeanor for which he was sentenced in 
February 2011 to four years of supervised probation, which he is still serving. He also 
admitted to exposing himself on multiple occasions over the past 50 years. I find that all 
the above disqualifying conditions apply.  
 
 I have also considered all of the mitigating conditions for Criminal Conduct under 
AG ¶ 32 and considered the following relevant: 
 
 (a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances that it is unlikely to recur 
and does not cast doubt on the individual’s reliability, trustworthiness, or 
good judgment; and 
   
 (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 involvement. 
 Applicant’s last known act of exposure occurred in 2010, but it was the most 
recent act in a pattern of behavior that began when Applicant was a teenager, more 
than 50 years ago. Under these circumstances, his last act is not  sufficiently attenuated 
after considering his behavior in its totality. AG ¶ 32(a) does not apply. Although 
Applicant is receiving both group and individualized counseling, he remains on 
probation and is still considered a risk by the state where he resides. He is required to 
complete detailed travel plans before he is allowed to leave his immediate area. Even 
though there is no evidence of a recurrence of his criminal behavior since his arrest, 
Applicant produced insufficient evidence that his reliability, trustworthiness and 
judgment are not in question based upon the nature of his previous conduct. Although it 
appears he is headed down the right track, not enough time has passed to determine 
whether his rehabilitative efforts have succeeded. So, while some aspects of this 
mitigating condition are present, on the whole Applicant has not presented sufficient 
evidence for AG ¶ 32(d) to completely apply. 
Guideline E, Personal Conduct 
AG ¶ 15 expresses the security concern for personal conduct: 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
 
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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 describes conditions that could raise a security concern and may be 
disqualifying in this case. The following disqualifying condition is potentially applicable: 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a 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 security or intelligence 
service or other group.  
Applicant’s conduct of exposing himself to teenage girls in public places made 
him vulnerable to exploitation, manipulation, or duress and affects his professional 
standing in the community. He described his conduct as secretive, keeping it 
undisclosed from his wife and others until after he was arrested. AG ¶ 16(e) applies.  
The guideline also includes conditions that could mitigate security concerns 
arising from personal conduct. I have considered all of the mitigating conditions under 
AG ¶ 17 and the following are potentially applicable: 
 (c) the offense is 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;  
 (d) the individual has acknowledged the behavior and obtained counseling 
to change the behavior or taken other positive steps to alleviate the 
stressors, circumstances, or factors that caused untrustworthy, unreliable, 
or other inappropriate behavior, and such behavior is unlikely to recur, and 
 (e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation or duress. 
 Applicant engaged in unlawful and inappropriate sexual behavior for over 50 
years that calls into question his good judgment. Although the last reported behavior 
was in 2010 and Applicant is receiving counseling to modify his behavior, it is too early 
to determine whether that counseling will have the desired impact. His admission to his 
wife and friends about his past sexual behavior is a positive step in reducing his 
vulnerability to exploitation, manipulation, or duress. AG ¶ 17(c) does not apply. AG ¶ 
17(d) partially applies. AG ¶ 17(e) applies.   
 
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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. The administrative judge should consider the nine 
adjudicative process factors listed at 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 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. 
 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security 
clearance must be an overall commonsense judgment based upon careful consideration 
of the guidelines and the whole-person concept.        
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. I have considered Applicant’s 
current position and his supportive character evidence. I considered his psychologist’s 
testimony that he has not re-offended and has the proper elements available for 
successful rehabilitation. However, I also considered that Applicant’s actions involved 
50 years’ worth of deviant behavior. He remains on probation for the last criminal act he 
committed and will remain so for another two years. Additionally, his treating 
psychologist indicated that at least one more year of therapy is required. He also 
testified that he minimized his behavior in the past. Only during his hearing testimony 
did he admit to having been involved with about 40 past incidents. Although Applicant 
has made positive strides toward his rehabilitation, it is too early to determine whether 
those efforts will ultimately prove successful. Applicant failed to provide sufficient 
evidence to mitigate the security concerns.  
 
Overall the record evidence leaves me with questions and doubts about 
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant failed to mitigate the security concerns arising under Guideline D, 
Sexual Behavior, Guideline J, Criminal Conduct, and Guideline E, Personal Conduct. 
 
 
 
 
 
 
 
 
 
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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 -1.c:   Against Applicant 
 
Paragraph 2, Guideline J:    AGAINST APPLICANT 
 
Subparagraph:  2.a:    Against 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. 
 
 
                                                     
_____________________________ 
Robert E. Coacher 
Administrative Judge