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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 11-09859 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Alison O’Connell, Esq., Department Counsel 
For Applicant: Alan V. Edmunds, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines D (Sexual 
Behavior), M (Use of Information Technology Systems), and E (Personal Conduct). 
Eligibility for access to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (SCA) on November 16, 
2010. On June 1, 2012, the Defense of Defense (DOD) sent him a Statement of 
Reasons (SOR), alleging security concerns under Guidelines D, M, 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) implemented by DOD on 
September 1, 2006.  
 
 Applicant received the SOR on June 7, 2012, and answered it on June 29, 2012. 
He did not request a hearing before an administrative judge. He subsequently retained 
counsel and requested a hearing. On January 4, 2013, Department Counsel amended 
 
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the SOR, completely replacing the original SOR, and the case was assigned to an 
administrative judge on January 11, 2013. On March 20, 2013, Applicant answered the 
amended SOR. The Defense Office of Hearings and Appeals (DOHA) issued a notice of 
hearing on March 20, 2013, scheduling the hearing for March 27, 2013.1 The case was 
reassigned to me on March 26, 2013, and I convened the hearing as scheduled. 
Government Exhibits (GX) 1 through 15 were admitted in evidence without objection. 
Applicant testified and submitted Applicant’s Exhibits (AX) A through L, which were 
admitted without objection. DOHA received the transcript (Tr.) on April 3, 2013. 
 
Findings of Fact 
 
 In his answer to the original SOR, Applicant admitted the conduct alleged in SOR 
¶ 1.a and cross-alleged in SOR ¶ 2.a, but denied the frequency of the conduct alleged. 
He denied the remaining allegations. In his answer to the amended SOR, he denied all 
the allegations. His admissions in his answers to the original SOR and at the hearing 
are incorporated in my findings of fact. 
  
 Applicant is a 57-year-old systems engineer employed by a defense contractor 
since April 2010. He previously worked for another defense contractor from August 
1993 to March 2010. He received a security clearance in 1985 and eligibility for access 
to sensitive compartmented information (SCI) in 1987. (Tr. 31; GX 1 at 40.)  
 
 Applicant earned a bachelor’s degree in May 1984 and a master’s degree in May 
1991. Both degrees were in electrical engineering. (Tr. 32.) He married in September 
1987. He and his wife have three children, ages 22, 19, and 16. They separated around 
March 2011, but they see each other at least once a week and are co-parenting their 
children. (Tr. 38, 57.) 
 
 When Applicant submitted an SCA in November 1997, he answered “No” to 
Question 32, asking if he ever had a clearance or access authorization denied, 
suspended, or revoked. (GX 14 at 7.) He did not disclose that another government 
agency (AGA) had denied his application for access to SCI in January 1985. (GX 15.) 
The letter from the AGA, dated January 21, 1985, states that it is in response to two 
letters from Applicant in September 1984, in which he requested “the facts which 
supported the decision to deny [him] access to [AGA] Sensitive Compartmented 
Information (SCI).” At the hearing, he denied intentional falsification. He testified that his 
clearance was under review, and he did not consider it denied or revoked. (Tr. 45.) 
Upon reviewing the AGA’s decision at the hearing, he admitted that his application was 
denied. He testified that he later reapplied for SCI access and it was granted. (Tr. 53.) 
 
 Applicant was interviewed by a security investigator from an AGA on March 6, 
2008, in preparation for a counterintelligence polygraph examination. The investigator’s 
                                                          
1 Applicant, represented by an experienced attorney, agreed to the hearing date, thereby waiving the 15-
day notice requirement in Directive ¶ E3.1.8. The correspondence about scheduling the hearing and 
related matters is attached to the record as Hearing Exhibit I. 
 
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summary of the interview reflects that Applicant admitted that he viewed adult 
pornography during the preceding ten years, using an unclassified computer in his 
office, which was located in a sensitive compartmented information facility (SCIF). He 
admitted that viewing pornography on the company computer in his office violated 
company policy. He also admitted masturbating in his office about one time every two 
weeks, early in the workday before his coworkers arrived. He admitted that he visited 
adult bookstores, viewed pornographic movies, and masturbated while viewing the 
movies. He denied having any sexual contact with other persons at the adult 
bookstores. (GX 3.) He testified that he and his wife had not been sexually intimate for 
about five or six years when he first started viewing pornography. (Tr. 39.) 
 
At the hearing, Applicant admitted that he viewed pornography “on occasion,” but 
that it was “very infrequent.” He denied that the duration of his pornography viewing was 
about ten years. He admitted that he told the interviewer that it was ten years, but he 
explained that the number was “off the top of [his] head.” (Tr. 61-62.) He admitted telling 
the interviewer that he viewed pornography at work every day, but he testified that he 
exaggerated the number to take away his anxieties and enable him to successfully 
complete the polygraph. (Tr. 63-64.) 
 
Applicant denied that he “continued” to view pornography until March 2010, as 
alleged in the amended SOR, but he admitted that he viewed it on one occasion in 
March 2010. He testified that he no longer views pornography. He believes that 
pornography has destroyed his life. He feels guilty about viewing it and does not intend 
to view it in the future. (Tr. 35-37.)  
 
Applicant also admitted telling an investigator that he masturbated in his office 
about once every two weeks, but he denied doing it “regularly” as alleged in the 
amended SOR. He testified that he exaggerated the frequency of his masturbation to 
overcome his feelings of guilt and enable him to successfully complete the counter-
intelligence polygraph. (Tr. 69.)  
 
After the March 2008 interview, Applicant disclosed his viewing of pornography to 
his security officer. He made the disclosure because he wanted his security officer to 
know that he had not successfully completed a polygraph examination. (Tr. 72-74.) 
  
 Applicant underwent a post-polygraph interview on May 19, 2008. The 
investigator’s summary of this interview reflects that Applicant admitted viewing 
pornographic movies at an adult bookstore. He also admitted that he performed oral sex 
on unidentified males about four times at the bookstore and that unknown males 
performed oral sex on him about six times. He told the investigator that the viewing 
rooms at the bookstore had an opening in the wall that enabled occupants of adjoining 
rooms to perform oral sex on each other. (GX 4.) At the hearing, he admitted telling the 
investigator that he engaged in anonymous oral sex, but he denied that it was true. He 
testified that after the investigator asked him several times if he had engaged in oral 
sex, he answered “Yes,” because he thought the investigator wanted to get him past his 
feelings of guilt and anything else unrelated to counterintelligence. (Tr. 74-76.) 
 
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 Based on the interviews in March and May 2008, the AGA suspended Applicant’s 
eligibility for SCI access in June 2008. His eligibility for access to SCI and top secret 
information was revoked in July 2008. (GX 5.) 
 
 On September 11, 2008, Applicant requested a review of the AGA’s decision to 
revoke his SCI eligibility. In his request, he admitted viewing pornography, but he 
recanted his admission that he viewed it daily. He stated that he viewed it “in spurts” 
during the past two years. He stated that he would view adult pornography for several 
days in a row and then regret his actions and abstain for several weeks. He denied that 
he engaged in oral sex at an adult bookstore. He explained that he fantasized about the 
oral sex and admitted engaging in oral sex because he felt guilty about thinking about it 
and thought that admitting it would enable him to successfully complete a polygraph 
test. (GX 6.) The AGA sustained the decision to revoke his SCI eligibility on September 
29, 2008. (GX 7.) 
 
 On December 27, 2008, Applicant sent a letter to the AGA, outlining his progress 
in controlling his “pornography problem.” Applicant stated that he disclosed his problem 
to his wife, a behavioral health counselor, and his priest. He described a “daily ritual” 
that he performs every morning in front of his computer workstation to help him 
overcome the temptation to view pornography, and he stated that his “compulsion to 
view porn has diminished greatly.” (GX 10.)  
 
Applicant received therapy from a behavioral health counselor from November 
17, 2008, to May 9, 2009. (GX 13). His therapist described the treatment as follows: 
 
[Applicant] was coming to treatment for job stress and by the end of 
therapy he had adjusted very well to the demands of the work place. He 
also had a minor marital problem that we examined and this too was 
resolved prior to ending therapy. Because of the infrequent sex that he 
was having with his wife he would on occasion, very infrequently, watch 
pornography at work. This stopped immediately when we focused on how 
to improve the marital relations between him and his wife. 
 
At the hearing, Applicant denied deliberately providing false information to his counselor 
regarding the frequency of his viewing of pornography at work. (Tr. 43.) He has not 
received any further treatment or counseling for his involvement with pornography. (Tr. 
84.) 
 
 On July 8, 2009, Applicant wrote another follow-up letter to the AGA, stating that 
he had continued his sessions with his counselor, that his behavioral health was 
improving, that his relationship with his wife was improving, and that he had been able 
to control his “destructive compulsive behavior of viewing porn.” He asked the AGA to 
reconsider the “suspension” of his clearances. (GX 11.) 
 
 At the hearing, Applicant recanted his references to compulsive behavior in his 
December 2008 and July 2009 letters to the AGA. He testified that he viewed 
 
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pornography “at a moment of weakness,” when he was tired, lonely, and depressed.  
He stated that he did not know what it means to be compulsive. (Tr. 68.) He testified 
that he sought treatment because he was worried that he might have a compulsion 
regarding pornography, but his counselor did not tell him that he had a compulsion. 
Instead, his counselor taught him techniques designed to avoid destructive behavior. 
(Tr. 82-83.) 
 
 In March 2010, Applicant was caught viewing pornography on a company 
computer. He was not disciplined or terminated, but he resigned. He began working for 
his current employer in April 2010. 
 
During a personal subject interview (PSI) in December 2010, Applicant told an 
investigator that he lost his clearance in 2008 because he viewed pornographic 
material. The investigator’s summary recites: “The incident occurred in 08. He can’t 
recall the exact month. He had a [TS/SCI] clearance at the time of the incident.” 
Applicant told the investigator and testified at the hearing that he resigned from his 
previous job because felt he needed a fresh start. (GX 2 at 9; Tr. 88.) Applicant verified 
the accuracy of the PSI summary in response to DOHA interrogatories on February 22, 
2012. (GX 2 at 8.)  
 
The amended SOR alleges that Applicant gave false or misleading answers 
during the PSI by telling the investigator that he viewed pornography only twice, once in 
2008 and once in March 2010. At the hearing, he denied the allegation and testified that 
he tried to be as accurate and truthful as possible during this interview. (Tr. 42, 91-92.) 
 
 Applicant testified that he viewed pornography in March 2010 because he was 
tired and depressed. He stated that he has refrained from viewing pornography since 
March 2010. (Tr. 48.) He admitted that he sometimes exercises poor judgment when he 
is tired and depressed. (Tr. 87.) 
 
 On February 28, 2013, Applicant’s attorney referred him to a licensed 
psychologist for evaluation. (AX J.) The psychologist administered an extensive battery 
of tests as part of his evaluation. The psychologist’s conclusions included the following: 
 
[Applicant’s] range of sexual experiences is above average relative to the 
average male. His overall sexual drive was similar to the average male, 
and he engages in fantasy with similar frequency. With regard to attitudes 
relative to sexuality, [Applicant] demonstrated a healthy range of sexual 
attitudes and behaviors.  
 
*     *     * 
 
[Applicant’s] sexual obsession score . . . reflected average sexual interest, 
motivation, and desires. [Applicant’s] responses indicated that he is 
unlikely to be preoccupied by thoughts of sex and is not prone to engage 
 
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in impulsive, high-risk sexual acts or to be preoccupied with or distracted 
by sexual stimuli. . . . 
 
The psychologist’s diagnosis was as follows:  
 
Axis I (clinical disorders or other conditions that may be a focus of clinical 
attention): No diagnosis.  
 
Axis II (personality disorders or mental retardation): No diagnosis.  
 
Axis III (general medical conditions): None. 
 
Axis IV (psychosocial and environmental problems): Work-related and 
family stressors. 
 
Axis V (global assessment of functioning (GAF)): 70.2 
 
The psychologist’s narrative evaluation included the following comments: 
 
Test findings indicated [Applicant] may have some difficulties with rigidity 
in his thinking and discomfort with novel situations. He is an individual who 
generally maintains stringent control over his emotion and avoids 
displaying psychological weakness. Personality testing indicated that 
[Applicant] is fearful of disapproval and rejection from others, resulting in 
his avoidance of expressing negative emotion. He tends to be self-punitive 
and self-condemning, often experiencing extreme guilt and punishing 
himself as a result. [Applicant] shapes his life in terms of rule, regulations, 
and structure, and tends to become disorganized by novel situations. His 
thoughts relative to sexuality and viewing of pornography are not 
consistent with his image of himself, his strong conscience, and his sense 
of morality. This may result in [Applicant’s] self-infliction of punishment by 
admitting to sexual acts that have not actually occurred; rather, they are 
fantasies and/or thoughts that are guilt-producing and anxiety-provoking. 
Consequently, internalized guilt demands punishment resulting in his 
overstating inappropriate thoughts or actions (that may not have 
occurred). 
 
The psychologist concluded his evaluation with the following comments: 
 
Test findings indicated that [Applicant] tends to be self-condemning and 
guilt-ridden in general, with underlying deep-seated fears of disapproval 
                                                          
2 The parenthetical descriptions of each axis were not included in the psychologist’s report. They have 
been added, using the descriptions in the Diagnostic and Statistical Manual of Mental Disorders (4th 
edition) Text Revision (DSM-IV-TR). DSM-IV-TR defines a GAF score of 70 as reflecting that an individual 
has some mild symptoms or some difficulty in social, occupational, or school functioning, but is generally 
functioning well. 
 
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and rejection. Sexuality, by nature, is often shame and guilt-producing in 
individuals. For [Applicant], engaging in such behaviors is ego-dystonic in 
that it directly violates how he views himself and how he constructs the 
world around him. The guilt and shame it produced for him was of such a 
magnitude that it was too painful to face. In view of his very superior 
intellectual abilities, his level of impulse control, and the fact that his 
diagnostic profile clearly indicates his ability and tendency to be compliant 
with respect to rules and guidelines, consideration for security clearance is 
recommended. 
 
 Applicant has disclosed his viewing of pornography to his wife, his priest, his 
children, and his supervisor. He told his wife that he viewed pornography infrequently. 
He has not disclosed his conduct to coworkers or anyone else. (Tr. 102-03.) 
 
 Four friends and neighbors of Applicant submitted letters attesting to his honesty, 
dependability, and integrity. He is actively involved in his community and volunteered to 
serve as treasurer of a charitable organization. (AX A, C, D, and E.) A coworker, who 
has known Applicant for more than three years, considers him a very capable engineer 
who has become a “go-to” team member. (AX B.) Applicant’s program manager 
describes him as trustworthy, hardworking, dependable, and a leader with sound 
judgment (AX L.) Based on his outstanding duty performance, Applicant received a 
$2,000 award in October 2012 and a $1,000 award in December 2012. (AX I.) 
  
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available and reliable information about the 
person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
 
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classified information. Such decisions entail a certain degree of legally permissible 
extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 
10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline D, Sexual Behavior 
 
 The amended SOR alleges that, between approximately 1998 and at least May 
2008, Applicant deliberately searched for and viewed pornography with varying 
frequency, using an unclassified work computer located in a SCIF, and knew that he 
was violating company policy (SOR ¶ 1.a). It also alleges that, for a period of time until 
at least May 2008, he regularly masturbated in his private office in the SCIF (SOR ¶ 
1.b). It further alleges that he engaged in oral sex with unidentified males at an adult 
bookstore on at least ten occasions (SOR ¶ 1.c). Finally, it alleges that, as a result of 
the conduct alleged in SOR ¶¶ 1.a-1.c, his SCI access was revoked in about August 
2008, and that he continued to view pornography on his work computer until at least 
March 2010 (SOR ¶ 1.d). 
 
 
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 Applicant admitted SOR ¶¶ 1.a and 1.b in his March 2008 interview with an AGA 
investigator and at the hearing, but he testified that he exaggerated the frequency of his 
conduct in the March 2008 interview. He admitted SOR ¶ 1.c in his May 2008 interview 
with an AGA investigator, but he recanted his admission at the hearing. In his 
December 2010 PSI, he admitted viewing pornography on his work computer on one 
occasion in March 2010. At the hearing he denied that he viewed pornography 
continuously after his SCI access was revoked, as SOR ¶ 1.d suggests. 
 
 The following disqualifying conditions under this guideline are potentially 
applicable:  
 
AG ¶ 13(a): sexual behavior of a criminal nature, whether or not the 
individual has been prosecuted; 
 
AG ¶ 13(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; 
 
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 
discretion or judgment. 
 
 AG ¶ 13(a) is not established. Applicant confined his viewing to adult 
pornography. While indecent exposure is a crime in many jurisdictions, Department 
Counsel presented no evidence that his sexual activity in the adult bookstore and his 
masturbation in his office with no one else present violated the law of the jurisdiction 
where it occurred.  
 
 AG ¶ 13(b) is not established. Although Applicant described his behavior as 
compulsive and self-destructive in his appeals of the AGA decision to revoke his SCI 
eligibility, he recanted that description at the hearing, and his recantation is supported 
by the evaluation from his psychologist. Furthermore, he testified that he was able to 
stop his behavior from March 2008 to March 2010 and from March 2010 until his 
hearing in March 2013. 
 
 AG ¶ 13(c) is established. Applicant’s conduct, combined with his strong sense of 
guilt and shame, made him vulnerable to coercion, exploitation, or duress. 
 
 AG ¶ 13(d) is established. Applicant admitted that his conduct constituted bad 
judgment that occurred “at a moment of weakness” when he was tired, lonely, and 
depressed. 
 
  
 
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The following mitigating conditions are potentially relevant: 
 
AG ¶ 14(b): the sexual behavior happened so long ago, so infrequently, or 
under such unusual circumstances, that it is unlike to recur and does not 
cast doubt on the individual’s current reliability, trustworthiness, or good 
judgment; 
 
AG ¶ 14(c): the behavior no long serves as a basis for coercion, 
exploitation, or duress; and  
 
AG ¶ 14(d): the sexual behavior is strictly private, consensual, and 
discreet. 
 
 The first prong of AG ¶ 14(b) (“so long ago”) focuses on whether the conduct was 
recent. There are no Abright line@ rules for determining when conduct is Arecent.@ The 
determination must be based on a careful evaluation of the totality of the evidence. See 
ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows Aa 
significant period of time has passed without any evidence of misconduct,@ then an 
administrative judge must determine whether that period of time demonstrates Achanged 
circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.@ Id.  
 
Applicant has refrained from viewing pornography for about three years, which is 
“a significant period of time.” However, this three-year period must be weighed in the 
context of many years of involvement with pornography and a relapse after a two-year 
period of abstinence. Applicant has been under pressure to have his security clearance 
reinstated for the past three years. He is still separated from his wife. He has not sought 
or received any further therapy. He admitted at the hearing that he is prone to exercise 
bad judgment when he is tired, lonely, and depressed. His demeanor at the hearing was 
that of a depressed, guilt-ridden man. His testimony was vague about the frequency of 
his conduct, and he tried repeatedly to minimize the frequency of his behavior. I have 
doubts about his credibility for the reasons set out in the discussion of Guideline E 
below. I am not satisfied that he will refrain from viewing pornography at work when the 
pressure of obtaining a clearance is lifted. Thus, I conclude that the first prong of AG ¶ 
14(a) is not established.  
 
The second and third prongs of AG ¶ 14(b) are likewise not established, because 
his behavior was frequent and did not occur under unusual circumstances. Thus, I 
conclude that AG ¶ 14(b) is not established. 
 
 AG 14(c) is not established. Applicant has disclosed his behavior to his wife, 
children, priest, a therapist and his supervisor, but he understated the frequency of his 
conduct to his therapist in 2009, and he has not disclosed his behavior to his coworkers 
or anyone else. 
 
 AG ¶ 14(d) is not established. Applicant admitted that he viewed pornography 
and masturbated in his office. While he did so early in the day, before the arrival of his 
 
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coworkers, he risked discovery by coworkers or other authorized personnel in the SCIF. 
His viewing of pornography and masturbation at work was not discreet.  
 
Guideline M, Use of Information Technology Systems 
 
 The amended SOR cross-alleges the conduct alleged in amended SOR ¶¶ 1.a 
and 1.d under this guideline. The concern under this guideline set out in AG ¶ 39:  
 
Noncompliance with rules, procedures, guidelines or regulations 
pertaining to information technology systems may raise security concerns 
about an individual's reliability and trustworthiness, calling into question 
the willingness or ability to properly protect sensitive systems, networks, 
and information.  
 
 The relevant disqualifying condition is AG ¶ 40(e) (“unauthorized use of a 
government or other information technology system”). The reference to “other” 
information systems indicates that this disqualifying condition applies to privately-owed 
systems as well as government systems. This disqualifying condition is established by 
Applicant’s admission that he used his employer’s computer to view pornography, in 
violation of company rules.  
 
 The relevant mitigating condition is AG ¶ 41(a): “so much time has elapsed since 
the 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.” For the reasons set out in the above discussion of AG ¶ 14(b), I 
conclude that this mitigating condition is not established. 
 
Guideline E, Personal Conduct 
 
 A summary of the allegations in the amended SOR under this guideline is as 
follows: 
 
SOR ¶ 3.a: Applicant falsified material facts during his December 2010 
PSI by indicating that the AGA revoked his SCI access because he 
viewed pornography on his work computer on two occasions, once in 
2008 and once in 2010 and failing to disclose that his SCI access was 
revoked due in part to the fact that he viewed pornographic materials on 
his work computer for ten years.  
 
SOR ¶ 3.b: Applicant deliberately misrepresented to a treating 
psychologist between November 2008 and May 2009 that he had viewed 
pornography “on occasion” and “very infrequently,” and deliberately failed 
to disclose the conduct alleged in amended SOR ¶¶ 1.a and 1.d.  
 
SOR ¶ 3.c: Withdrawn. 
 
 
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SOR ¶ 3.d: Applicant deliberately falsified material facts during the March 
2008 interview by an AGA investigator by denying any sexual contact 
while patronizing pornography shops and deliberately failing to disclose 
the conduct alleged in amended SOR ¶ 1.c.  
 
SOR ¶ 3.e: Applicant falsified material facts in an SCA in November 1997 
by answering “No” to the question whether he had ever had a clearance or 
access authorization denied, suspended, or revoked and deliberately 
failed to disclose that he was denied SCI access by an AGA in about 
January 1985.  
 
SOR ¶ 3.f: Cross-alleges the allegations in amended SOR ¶¶ 1 and 2.  
 
 The concern under this guideline is set out in AG ¶ 15 as follows:  
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual’s reliability, trustworthiness and ability to protect 
classified information. Of special interest is any failure to provide truthful 
and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process.   
 The disqualifying condition relevant to the alleged falsification of the November 
1997 SCA is AG ¶ 16(a) (“deliberate omission, concealment, or falsification of relevant 
facts from any personnel security questionnaire . . . .”). The disqualifying condition 
relevant to the alleged falsifications to investigators and the therapist is 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”). It is not clear whether a privately-retained non-
government therapist is a “competent medical authority” within the meaning of AG ¶ 
16(b). However, if an applicant provides false or misleading information to obtain a 
favorable diagnosis or prognosis from a private practitioner and uses it to support a 
security clearance application, the security concerns under this guideline are triggered. 
 
 The disqualifying conditions relevant to the conduct alleged in amended SOR ¶¶ 
1 and 2 that are cross-alleged under this guideline are:  
AG ¶ 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 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; 
 
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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 that 
the person may not properly safeguard protected information. This 
includes but is not limited to consideration of . . . a pattern of dishonesty or 
rule violations; and  
AG ¶ 16(e): personal conduct, or concealment of information about one's 
conduct, that creates a vulnerability to exploitation, manipulation, or 
duress, such as . . . engaging in activities which, if known, may affect the 
person's personal, professional, or community standing.  
 When a falsification allegation is controverted, as in this case, the Government 
has the burden of proving it. An omission, standing alone, does not prove falsification. 
An administrative judge must consider the record evidence as a whole to determine an 
applicant’s state of mind at the time of the omission. See ISCR Case No. 03-09483 at 4 
(App. Bd. Nov. 17, 2004). An applicant’s level of education and business experience are 
relevant to the determination whether a failure to disclose relevant information on a 
security clearance application was deliberate. ISCR Case No. 08-05637 (App. Bd. Sep. 
9, 2010). Applicant is a mature, well-educated adult who has worked for defense 
contractors for many years and held a clearance since 1985. 
 
 The summary of the December 2010 PSI describes a single “incident” in 2008, 
and Applicant verified the accuracy of the summary. Applicant admitted multiple 
instances of viewing of pornography in his AGA appeal. He was vague about the 
frequency of his pornography viewing at the hearing, but he eventually admitted multiple 
incidents. He denied intentional falsification at the hearing, but his only explanation was 
that he tried to be as accurate and truthful as possible. I find his explanation implausible 
and not credible, and I conclude that amended SOR ¶ 3.a is established by substantial 
evidence. 
 
 Applicant’s therapist from November 2008 to May 2009 recited in his report that 
Applicant viewed pornography “on occasion, very infrequently.” Applicant did not 
dispute the accuracy of the therapist’s report, but he denied deliberate falsification. I 
conclude that amended SOR ¶ 3.b is established by substantial evidence. 
 
 Applicant told an AGA investigator in March 2008 that he visited adult 
bookstores, viewed pornographic movies at the bookstores, and masturbated while 
watching the movies. He denied having sexual contact with other persons at the 
bookstores. In May 2008, he told an AGA investigator that he had engaged in oral sex 
with unidentified males on multiple occasions. At the hearing, he admitted that he made 
the statement about oral sex in the May 2008 interview, but he recanted it and said it 
 
14 
 
was false. I find his recantation implausible and not credible. I conclude that amended 
SOR ¶ 3.d is established by substantial evidence. 
 
 Applicant explained his failure to disclose a previous revocation of a clearance in 
his November 1997 SCA by claiming that he thought it was under review. However, he 
admitted that the January 1985 letter from the AGA, which was in response to his 
request for an explanation of the denial of SCI access, unequivocally denied his 
application. He also admitted that he reapplied for SCI access and his application was 
granted. I conclude that amended SOR ¶ 3.e is established by substantial evidence. 
 
 Although not alleged in the SOR or the amended SOR, the evidence establishes 
that Applicant answered “No” to Question 21 on his November 2010 SCA, which asks, 
“In the last 7 years, have you consulted with a health care professional regarding an 
emotional or mental health condition or were you hospitalized for such a condition?” The 
instructions tell applicants to answer “No” to this question if the counseling was for 
“strictly marital, family, or grief not related to violence by you” and was not court-
ordered. (GX 1 at 37.) Applicant did not disclose the counseling he received from 
November 2008 to May 2009. His only explanation at the hearing was, “I thought I 
answered the form correctly.” The report from the therapist reflects that Applicant’s 
marital problems were a significant aspect of the counseling, but that it was not “strictly” 
limited to marital counseling. In his December 2008 letter, Applicant urged the AGA to 
restore his SCI access, relying in part on his counseling about his “pornography 
problem.”  I conclude that he deliberately failed to disclose the counseling he received 
regarding his pornography involvement. 
 
 Conduct not alleged in the SOR may not be an independent basis for denying a 
clearance, but it may be considered to assess an applicant=s credibility; to decide 
whether a particular adjudicative guideline is applicable; to evaluate evidence of 
extenuation, mitigation, or changed circumstances; to consider whether an applicant 
has demonstrated successful rehabilitation; or as part of a whole-person analysis. ISCR 
Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006) (citations omitted). I have considered 
Applicant’s failure to disclose his counseling related to pornography involvement for 
these limited purposes. 
 
 Based on all the evidence, I conclude that Applicant’s falsifications of his SCA 
and false statements to investigators establish the disqualifying conditions in AG ¶¶ 
16(a) and (b). Applicant repeatedly violated the rules for using his employer’s computer, 
gave false and misleading information during the security clearance process, and 
engaged in conduct that, if known, would adversely affect his personal, professional, 
and community standing. Thus, I conclude that the conduct alleged in amended SOR ¶¶ 
1 and 2 and cross-alleged under this guideline establishes the disqualifying conditions 
in AG ¶¶ 16(c), (d), and (e). 
 
 Under AG ¶ 17(a), security concerns raised by false or misleading answers on a 
security clearance application or during a security interview may be mitigated by 
showing that “the individual made prompt, good-faith efforts to correct the omission, 
 
15 
 
concealment, or falsification before being confronted with the facts.” This mitigating 
condition is not established. Applicant recanted some of his admissions, claiming that 
they were false, but he did so only upon further interrogation. He made no effort to 
correct his 1997 SCA. He made no effort to correct his misleading statements during his 
December 2010 PSI. 
 
 Under AG ¶ 17(c), personal conduct concerns may be mitigated if “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.” Applicant’s falsifications 
during the security clearance process were not minor, because they undermined the 
integrity of the process. For this reason and the reasons set out in the above 
discussions of AG ¶¶ 14(b) and 41(a), this mitigating condition is not established. 
 
 Under AG ¶ 17(d), personal conduct concerns may be mitigated if “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.” This mitigating condition is partially established because Applicant 
acknowledged his involvement with pornography and obtained counseling. However, for 
the reasons set out in the above discussion of AG ¶ 14(b), I am not convinced that his 
behavior is unlikely to recur. 
 
 Under AG ¶ 17(e), personal conduct concerns may be mitigated if “the individual 
has taken positive steps to reduce or eliminate vulnerability to exploitation, 
manipulation, or duress.” This mitigating condition is partially established, because 
Applicant has disclosed his involvement with pornography to his wife, children, priest, 
and his supervisor. However, this mitigating condition is not fully established, because 
he admitted that he has not disclosed his conduct to coworkers, and there is no 
evidence that he has disclosed it to neighbors and friends. 
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an administrative judge must evaluate an applicant’s eligibility for a 
security clearance by considering the totality of the applicant’s conduct and all relevant 
circumstances. An 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 
 
16 
 
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 have incorporated my comments under Guideline D, M, and E in my whole-
person analysis. Some of the factors in AG ¶ 2(a) were addressed under those 
guidelines, but some warrant additional comment. 
 
 Applicant is a well-educated and skilled engineer. He has worked for defense 
contractors and held a security clearance for many years. He is a devoted father and 
actively involved in his community. His current supervisor, who is aware of the 
allegations against him, supports his application for a clearance. On the other hand, 
Applicant lived a secret life for many years. His pattern of deception, equivocation, and 
falsification raises grave doubts about his trustworthiness, reliability, and good 
judgment. 
 
 After weighing the disqualifying and mitigating conditions under Guidelines D, M, 
and E, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has not mitigated the security concerns raised by his sexual behavior, use of 
information technology systems, or personal conduct. Accordingly, I conclude he has 
not carried his burden of showing that it is clearly consistent with the national interest to 
grant him eligibility for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the amended SOR: 
 
 Paragraph 1, Guideline D (Sexual Behavior):  AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.d:    Against Applicant 
 
 Paragraph 2, Guideline M (Information Technology): AGAINST APPLICANT 
 
  Subparagraph 2.a:     Against Applicant 
 
 Paragraph 3, Guideline E (Personal Conduct):  AGAINST APPLICANT 
 
  Subparagraphs 3.a-3.b:    Against Applicant 
  Subparagraph 3.c:     Withdrawn 
  Subparagraphs 3.d-3.f:    Against Applicant 
 
 
17 
 
Conclusion 
 
 I conclude that 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. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge