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.                                                              
                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ICSR Case No. 11-12019 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Candace Le’i Garcia, Esq. Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
______________ 
 
CREAN, Thomas M., Administrative Judge: 
 
 Based on a review of the pleadings and exhibits, eligibility for access to classified 
information is denied. Applicant failed to mitigate security concerns for personal conduct 
and sexual behavior. 
 
Statement of the Case 
 
On June 14, 2010, Applicant submitted an Electronic Questionnaire for 
Investigations Processing (e-QIP) to obtain a security clearance for his employment with 
a defense contractor. (Item 4) An investigation was conducted by the Office of 
Personnel Management (OPM), consisting of a personal subject interview with 
Applicant and an affidavit provided by Applicant. (Item 6 and Item 7) After reviewing the 
results of the background investigation, the Department of Defense (DOD) could not 
make the affirmative findings required to issue a security clearance. DOD issued 
Applicant a Statement of Reasons (SOR), dated August 14, 2013, detailing security 
concerns for personal conduct and sexual behavior. (Item 1) 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 in the DOD on 
September 1, 2006.  
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 Applicant answered the SOR on August 28, 2013. He admitted most of the 
factual allegations concerning personal conduct. He denied some of the facts. He did 
not answer the sexual behavior allegation. Since the allegation re-alleges the personal 
conduct allegations, his response to this allegation will be considered the same as his 
response to the personal conduct allegations. Applicant elected to have the matter 
decided on the written record. (Item 3) Department Counsel submitted the 
Government’s written case on November 18, 2013. Applicant received a complete file of 
relevant material (FORM), and was provided the opportunity to file objections and to 
submit material to refute, extenuate, or mitigate the disqualifying conditions. Applicant 
did not provide additional information in response to the FORM. The case was assigned 
to me on January 31, 2014.  
 
Findings of Fact 
 
 After a thorough review of the pleadings, I make the following essential findings 
of fact.   
 
 Applicant is a 45-year-old software engineer for a defense contractor. He 
received bachelor’s and master’s degrees in computer science and has taken post-
graduate courses. He is not married. (Item 1, e-QIP) 
 
 The SOR alleges that Applicant improperly used his defense contractor 
employer’s computer system and his access to classified information was revoked in 
2008 (SOR 1.a). The SOR also alleges that Applicant downloaded pornography on his 
government computer about 150 times in 1994 (SOR 1.b), and that he had contact with 
U.S. and foreign national prostitutes on numerous occasions from about 1996 until 2011 
(SOR 1.c). The sexual behavior allegation re-alleges the sexual misconduct in SOR 1.b 
and 1.c (SOR 2.a). 
 
 Applicant admitted that his access to classified information was revoked in 2008. 
He misused his company’s computer system by creating a different file while having 
access to secure Government information. He states that there were no written 
guidelines in place at the time, but he was aware of the appropriate procedures to be 
followed. He did not intentionally create the files, but used them as a means of saving 
time. He deleted all of the files as directed by his security manager. He said he usually 
follows rules at work. His co-workers know of his violation. As a result of his actions in 
creating the files in violation of procedures, his company revoked his access to 
classified information and reassigned him to a position not requiring access to classified 
information. (Item 6 at 1-3; Item 7 at 4) 
 
 Applicant also admitted that he downloaded pornography to his unclassified work 
computer about 150 times over a few months in approximately 1994. He signed a 
document admitting that he downloaded pornography to his work computer and to a 
Government computer. In his response to the SOR, he denies downloading 
pornography to a Government computer. He states he only signed the document 
because he felt under duress and was afraid he would lose his job if he did not sign the 
document. He acknowledged violating both the Government and employer policy 
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against such action. He agreed to cease this behavior. No further action was taken by 
his company or the Government. (Item 6 at 3-4; Item 7 at 4)  
 
 Applicant admitted that he had contact and sexual activities with U.S. and foreign 
national prostitutes on numerous occasions from 1996 until at least 2011. He had 
contact with foreign national prostitutes while overseas as well as in the United States. 
He usually contacted the prostitutes either at bars, clubs, through escort services, over 
the internet, or by telephone. He had contact with prostitutes every few months and paid 
approximately $200 for each contact. He had contact with prostitutes because he did 
not have a girlfriend. In 2007, he was notified of a pending polygraph examination for 
his security clearance, so he ceased his contact with prostitutes. He resumed his 
activities with prostitutes in 2008 after his clearance was revoked. He ceased contact 
with foreign national prostitutes in 2009 after realizing that such contact may jeopardize 
a security clearance. He does not know the name, location, or nationality of the foreign 
national prostitutes. Since 2009 he has only had contact with U.S. prostitutes about 
once every four months.  
 
 He was never asked any question about his work or asked to divulge classified 
information. None of the prostitutes were aware he was being considered for a national 
security position. He did not list the contact with foreign national prostitutes on his 
security clearance application because he was ashamed of his actions, afraid they 
would affect his personal and professional reputation, and such actions may cost him 
his job. He has attempted to keep his sexual behavior secret because he is not proud of 
his actions and they could cause him acute embarrassment. (Item 6 at 3-14, Item 7 at 4-
6) 
 
 Applicant now admits his personal conduct even though he feels ashamed, and 
was afraid it would affect his personal and professional reputation. He anticipates it may 
cost him his position as a chief systems engineer. He kept the behavior secret because 
he was not proud of the behavior. He admits that the exposure of his conduct with 
prostitutes may cause acute embarrassment. He believes his conduct could leave him 
vulnerable to legal action. He is not sure if he violated any local or foreign national laws 
by engaging in sexual behavior with U.S. and foreign national prostitutes. He is not 
currently being threatened or coerced because of his behavior. He considered seeking 
treatment for his sexual behavior but he has not done so. No one has ever expressed 
an interest in his position or work. (Item 6 and 10-12; Item 7 at 5-6) 
 
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 must be considered 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 
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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, 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 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 
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 safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation of potential, rather than actual, risk of compromise of classified 
information. 
 
Analysis 
 
Personal Conduct 
 
Personal conduct is a security concern because conduct involving questionable 
judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and 
regulations can raise questions about an individual’s reliability, trustworthiness, and 
ability to protect classified and sensitive information. (AG ¶ 15). Personal conduct is 
always a security concern because it asks whether the person’s past conduct justifies 
confidence the person can be trusted to properly safeguard classified or sensitive 
information.  
 
 Applicant violated Government and company policy by creating different files on 
a secure computer in 2008. His access to classified information was revoked by his 
company in 2008. He downloaded pornography to his Government computer about 150 
times in 1994. He had contact with foreign national and U.S. prostitutes from 1996 until 
2011. These offenses go directly to the question of his reliability, trustworthiness, and 
good judgment. His conduct raises Personal Conduct Disqualifying Conditions:  
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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);  
 
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 indicting that the person may not properly safeguard protected 
information. This includes but is not limited to consideration of: (3) (a pattern of 
dishonesty or rule violations);  
 
AG ¶ 16(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); and  
 
AG ¶ 16(g) (association with persons involved in criminal activity).  
 
 I considered Personal Conduct Mitigating Conditions; 
 
 AG ¶ 17(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 
is unlikely to recur and does not cast doubt on the individual's reliability, 
trustworthiness, or good judgment);  
 
AG ¶17(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);  
 
AG ¶ 17(e) (the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress); and 
 
AG ¶ 17(g) (association with persons involved in criminal activity has ceased or 
occurs under circumstances that do not cast doubt upon the individual’s 
reliability, trustworthiness, judgment, or willingness to comply with rules and 
regulations).  
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These mitigating conditions do not apply.  
 
 Applicant violated company and Government policy by downloading pornography 
to his work and Government computers in 1994. He was told to cease such activity. He 
then violated Government and company procedure by creating different files on a 
secure computer. He continued his personal conduct of security concern by engaging in 
sexual activities with foreign national and U.S. prostitutes from 1996 until 2011. His 
personal conduct of security concern is recent, ongoing, frequent, and likely to recur. 
His conduct was of such concern to his company that the company revoked his access 
to classified information in 2008. There are no indications of any positive steps taken to 
change his behavior and reduce or eliminate his vulnerability to exploitation, 
manipulation, or duress. In fact, he states he has not taken any action to seek help even 
though he believes he must change his ways. His misconduct is not minor since he was 
actively engaged in fraudulent and deceitful conduct. Applicant has failed to present 
sufficient information to mitigate the security concerns based on his personal conduct. 
 
Sexual Behavior 
 
 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. (AG ¶ 12) As noted above, personal 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. (AG ¶ 15) The security concerns are based on 
the same incidents and are similar. 
 
 Applicant candidly admits to sexual encounters with foreign and U.S. prostitutes 
from about 1996 until at least 2011. He admits to downloading pornography in 1994. 
Applicant’s history of risky sexual behavior questions his reliability, judgment, and 
trustworthiness. The incidents have the potential to make Applicant vulnerable to 
coercion, exploitation, and duress. This history of sexual behavior raises Sexual 
Behavior Disqualifying Condition 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; and (AG ¶ 13(c) (sexual 
behavior that causes an individual to be vulnerable to coercion, exploitation, or duress). 
 
 I considered Sexual Behavior Mitigating Conditions AG ¶ 14(b) (the sexual 
behavior happened so long ago, so infrequently, or under such unusual circumstances, 
that it is unlikely to recur and does not cast doubt on the individual's current reliability, 
trustworthiness, or good judgment); and Ag ¶14(c) (the behavior no longer serves as a 
basis for coercion, exploitation, or duress). The downloading of pornography occurred 
about ten years ago, and the last sexual activity with a foreign prostitute as reported by 
Applicant took place about five years ago. His latest encounter with a U.S, prostitute 
was less than three years ago. The incidents with prostitutes were frequent and 
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voluntary. Future encounters with prostitutes, either overseas or in the United States, 
could recur when he has the desire to seek their services. While taken individually, the 
mitigating conditions can explain away his sexual behavior. However, the extent of his 
risky sexual behavior with prostitutes shows a lack of judgment and discretion that 
raises questions about reliability and trustworthiness. His actions with prostitutes can 
serve as a basis of coercion, exploitation or duress. Applicant has not mitigated the 
security concerns for sexual behavior.  
 
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 access to 
sensitive information 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 carefully considered all of the 
circumstances discussed above in regard to disqualifying and mitigating conditions as 
well as the following factors in light of the whole-person concept. The “whole-person 
concept” requires consideration of all available information about Applicant, not a single 
item in isolation, to reach a commonsense determination concerning Applicant’s 
security worthiness.  
 
The adjudicative process is an examination of an individual’s past to determine if 
he will engage in risky conduct in the future and whether that conduct could affect his 
judgment, reliability and trustworthiness. Applicant readily and candidly admitted that he 
engaged in risky sexual behavior over a long period. He had sexual activities with 
foreign prostitutes in foreign countries. He had encounters with U.S. prostitutes less 
than three years ago. Applicant’s past sexual conduct indicates that he will continue 
with such conduct. His pattern of reckless and irresponsible sexual behavior and 
personal conduct shows poor judgment, a lack of discretion, and a failure to control 
impulses, and demonstrates unreliability, and untrustworthiness. This pattern of conduct 
casts doubt on Applicant’s willingness or ability to safeguard classified information. His 
conduct is risky and there is a possibility that in the future he may be vulnerable to 
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manipulation, coercion or exploitation. Any doubts must be resolved in favor of the 
national security. Overall, the record evidence leaves me with questions and doubts 
about Applicant’s eligibility and suitability for access to classified information. For all 
these reasons, I conclude Applicant has not mitigated the sexual behavior and personal 
conduct security concerns. Applicant is denied access to classified information 
 
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 E:   AGAINST APPLICANT 
 
  Subparagraphs 1.a – 1.c:             Against Applicant 
 
         Paragraph 2, Guideline D;              AGAINST APPLICANT 
 
  Subparagraph 2.a:               Against Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with national security to grant Applicant eligibility for access to 
classified information. Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge