KEYWORD: Guideline D
DIGEST: Applicant’s statements contain significant inconsistencies regarding the frequency of
his viewing of child pornography and other matters.  The extensive inconsistencies undercut his
case in mitigation.  Favorable decision reversed.
CASENO: 12-00609.a1
DATE: 04/04/2014
DATE: April 4, 2014
In Re:
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Applicant for Security Clearance
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ISCR Case No. 12-00609
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
John Bayard Glendon, Esq., Deputy Chief Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On June
19, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
1The record states that Applicant underwent two tests in 2008, one in May and a later one the following June.
Clearance Decision Letter, dated October 27, 2008, included in Government Exhibit (GE) 3, Answers to Interrogatories.
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decision–security concerns raised under Guideline D (Sexual Behavior) and Guideline E (Personal
Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).
Applicant requested a hearing.  On January 3, 2014, after the hearing, Defense Office of Hearings
and Appeals (DOHA) Administrative Judge John Grattan Metz, Jr., granted Applicant’s request for
a security clearance.  Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.
Department Counsel raised the following issue on appeal: whether the Judge’s favorable
decision was arbitrary, capricious, or contrary to law insofar as it failed to consider important
aspects of the case.  Consistent with the following, we reverse the Judge’s decision.  
The Judge’s Findings of Fact
Applicant is employed by a Defense contractor.  He has held a clearance since approximately
2003.  Between May 2000 and at least June 2008, Applicant intentionally viewed nude images of
underage females.  Most of this activity occurred while Applicant was in college between August
2000 and May 2004.  Applicant’s conduct came to light in October 2008, when he failed a polygraph
examination.
When Applicant’s security significant conduct began, he would view photographs in the
“teen category on the website.”  Decision at 2.  He assumed that the pictures were of teenagers 18
years old or more.  After the 2008 polygraph,1 Applicant realized that some of the teenagers in the
pictures were wearing braces, which he automatically associated with ages 13-14, the ages during
which he himself had worn braces.  Another Government Agency (AGA1) disapproved his
application for upgraded access and revoked his existing access.  
Applicant underwent a periodic reinvestigation in August 2010, and the Defense Industrial
Security Clearance Office (DISCO) granted the requested clearance in November 2010.  A second
Government Agency (AGA 2) administered another polygraph to Applicant in May 2010 and denied
him access in June 2011.  Applicant has not viewed pornography since 2008.  He married in 2009,
and he and his wife are expecting their first child in April 2014.
Applicant enjoys an excellent reputation among his supervisor and co-workers, who find him
honest and trustworthy.  They are all aware of the circumstances leading to the revocation of his
special access in 2008 and the denial of his application for special access in 2011.  Applicant’s
program manager and his wife commend his work ethic and adherence to company policies.
The Judge’s Analysis
2The Judge stated that, insofar as DISCO had favorably adjudicated Applicant’s conduct, it was questionable
as to whether the agency should have revisited its November 2010 decision.  However, the Government is not estopped
from making an adverse clearance decision despite prior favorable adjudications.  “This is especially true when the most
recent adjudication takes into account facts and circumstances that were not necessarily present or as significant at the
time of an earlier investigation.”  ISCR Case No. 01-24504 at 3 (App. Bd. Feb. 11, 2013).  The 2011 denial by AGA 2
was a circumstance not present at the time of the 2010 decision.  Moreover, given Applicant’s cursory statement during
the reinvestigation interview regarding his 2008 access denial (see Interview Summary, included in GE 3, discussed
infra), it is not clear from the record that his reinvestigation fully addressed his security significant conduct.   
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The Judge concluded that Applicant’s conduct raised concerns under both Guidelines cited
in the SOR.2  He stated that Applicant’s conduct was criminal, insofar as at least some of the images
were of underage females.  He also stated that Applicant’s behavior evidenced immaturity and poor
judgment.  In concluding that Applicant had mitigated the concerns raised in the SOR, the Judge
found that the conduct had not been repeated since 2008 and that Applicant had undergone
significant life changes, such as his marriage and the impending birth of his first child.  The Judge
also cited evidence of the high quality of Applicant’s work performance.
Discussion
The standard applicable in security clearance decisions “is that a clearance may be granted
only when ‘clearly consistent with the interests of the national security.’” Department of the Navy
v. Egan, 484 U.S. 518, 528 (1988).  “Any doubt concerning personnel being considered for access
to classified information will be resolved in favor of the national security.”  Directive, Enclosure 2
¶ 2(b).  In deciding whether the Judge's rulings or conclusions are erroneous, we will review the
Judge's decision to determine whether, inter alia, it fails to consider an important aspect of the case.
See ISCR Case No. 03-22861 at 3 (App. Bd. Jun. 2, 2006).
Department Counsel argues that the Judge’s analysis failed to consider contrary record
evidence, in particular significant inconsistent statements by Applicant that undermined his
credibility and, therefore, his efforts to demonstrate rehabilitation.  We find this argument to be
persuasive.
We note record evidence of the various statements and explanations that Applicant provided
regarding his viewing of child pornography:
a.  In conjunction with his 2008 polygraph test, Applicant stated that he had
intentionally viewed child pornography on his home computer “two to three times
per week over the past year and a half.”  Applicant initially denied having done so,
asserting that the photographs in question depicted females 18 years of age or older.
However, he eventually admitted that the images “depicted girls who were 13 to 14
years old engaged in [sexual acts] with adult males. [He] described the girls as
lacking pubic hair and having slight builds, underdeveloped breasts, and braces on
their teeth. [He] reported that he last viewed these images in June 2008, after [his]
first testing session.”  AGA 1 Decision Statement, dated October 27, 2008, included
in GE 3.  
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b.  In January 2010, Applicant was submitted for program access under the
auspices of AGA 2.  During a March 2010 interview, he acknowledged that he had
had a clearance suspended due to his having failed a polygraph.  He advised that he
had never committed a crime and that, although he had looked at pornographic
websites, none involved children.  However, in conjunction with a polygraph the
following May, Applicant stated that he had purposely viewed “sexual images of
underage nude females on approximately six occasions from May 2000 to June 2008.
[He] described the images . . . as nude females, approximately 16 years old, engaged
in sexual acts with adult males. [He] said [he was] confident the females were minors
and that [he was] undoubtedly viewing child pornography based on their physical
appearance . . . [He] said the last time [he] knowingly viewed child pornography was
in June 2008. [He] conceded to the fact that [he] committed a crime by viewing child
pornography.”  AGA 2 Decision Statement, dated June 2, 2011, included in GE 3.
c.  Applicant provided AGA 2 officials with an affidavit addressing the
reasons for his failed polygraphs in 2008 and in 2010.  He stated that, in 2008,
polygraphers advised him that his first test had been inconclusive, necessitating a
second, which he failed.  He stated that he was told that the images he had been
looking at were of 13 to 14 year-old girls.  Applicant’s affidavit stated that he
thought they were over 18.  “The reason that I struggled with this question on the
polygraph was because there were a couple of images . . . in which the girls looked
younger than 18.  The fact that these girls had braces caused me to associate the age
. . . of the girls with the age at which I myself had braces[.]” GE 4, Affidavit, at 1-3.
d.  In March 2010, Applicant submitted a security clearance application
(SCA) for a periodic reinvestigation of his collateral clearance.  When asked if he
had ever had a clearance or access denied, suspended or revoked, Applicant stated
that his clearance had been “denied due to failure of fullscope polygraph.”  GE 1,
SCA, at 50.  
e.  In May and June 2010, Applicant was interviewed in conjunction with the
reinvestigation of his collateral clearance.  The interview summary states the
following: “[Applicant’s] clearance was suspended in October 2008 due to failing
his polygraph.  He failed the polygraph due to his reaction to the felony question.
He could not provide any further information.”  Interview Summary at 2, included
in GE 3.  See note 1, supra.
f.  In his response to the SOR, received by DOHA in July 2013, Applicant
stated the following: “I admit that during [the time in question] . . . I viewed
pornographic images of underage nude females.  It was a lack of judgment on my
part . . . as well as being naive in believing that everything I was viewing would be
of the legal age of 18.  While half of this time period reflects my college years, the
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other half of the eight years reflects four years removed from the college
environment and removal from friends who were viewing the images or showing me
some of the images.”  Later in the response, however, Applicant appeared to back
away from a categorical admission of wrongdoing.  He stated that the only reason
that he believed that the females were underage was that they were wearing braces,
as he himself had done at age 13.  He stated that, upon reflection, he realized that
many people who wear braces are well into their adult years and that he will never
know with 100% accuracy that the images depicted underage females.  He stated
that, at the time of his interviews, he did believe that they were underage. 
g.  During his hearing, Applicant testified that he had observed one picture
of possible child pornography.  “I said the individual picture I was thinking about at
the time may have been under 18 years of age.”  He said that, when pressed to
provide a specific age, “I described the individual as having braces.  At the time I
was trying to make an age determination and I provided the age of 13 to 14 strictly
based upon the individual wearing braces.  I came to that conclusion on my own
because I related back to when myself had braces and that was the age of 13 or 14.”
Tr. at 55-56.  Later on, he testified that the polygraphers had pressed him on the issue
of crime.  He testified that he had never even had a parking ticket, but, given frequent
news stories about child pornography, and because he had been viewing
pornography, he “questioned whether or not there might have been a picture in there.
The one picture that I was thinking of in particular at that [AGA 1] polygraph was
that individual with braces.”  Tr. at 67-68.
Applicant’s statements contain significant inconsistencies, as to the frequency with which
Applicant viewed child pornography, his certainty as to the ages of the females depicted, his
description of their physical appearances–whether they appeared young only because of braces or
because of other characteristics as well, his certainty as to the illegal nature of the images, and the
purposefulness of his conduct.  In addition, in May and June of 2010, Applicant stated to AGA 2
polygraphers that he had examined child pornography on multiple occasions.  During the same
period of time, he told the interviewer for his collateral clearance that he could provide no
information other than that he had failed a polygraph due to his reaction concerning a question about
felonies.  These inconsistencies are so extensive that they are not reasonably attributable to mere
failures of memory or to other honest mistakes.  Indeed, Applicant made little effort at the hearing
or in written matters submitted during the course of his adjudication to explain or reconcile them.
Neither did the Judge address them in his analysis of Applicant’s case, although Department Counsel
argues that his finding that Applicant had viewed multiple images of underage females appears
implicitly to discount Applicant’s testimony of only one such event.  Inconsistent statements can
impugn an applicant’s credibility and, depending upon the facts of a given case, undermine a Judge’s
favorable decision.  See, e.g., ISCR Case No. 07-18324 at 7 (App. Bd. Mar. 11, 2011).  In this case,
Applicant’s inconsistent and/or meretricious statements are of such a magnitude as to suggest to a
reasonable mind an “ongoing pattern of minimizing his actions,” with a view not toward candor but
simply toward maintaining his clearance.  See Department Counsel Appeal Brief at 13.  As
Department Counsel argues, this undercuts the value of Applicant’s mitigation evidence.      
3Applicant testified that, after his first polygraph session, he “was struggling with the question of crime.  I was
searching for something that might be tripping me up in that question at that time[.]”  Tr. at 55
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In addition, the evidence shows that, during interviews with two different agencies in 2008
and again in 2010, Applicant initially claimed never to have examined illegal pornography, only to
admit his misconduct after being pressed by polygraphers.  This undercuts Applicant’s claim that
he has consistently been forthright concerning his security significant conduct and does not support
the Judge’s favorable conclusion that he had demonstrated mitigation. 
Furthermore, the evidence demonstrates that Applicant’s last known incident of viewing
child pornography, in June 2008, occurred after his first fullscope polygraph exam, which had been
inconclusive.3  This exam was sufficient to have placed him on notice of the sort of conduct that
could put his clearance in jeopardy.  A reasonable person could find Applicant’s behavior to have
been reckless and incompatible with his claims of rehabilitation and good judgment.  See, e.g., ISCR
Case No. 11-00391 at 2-3 (App. Bd. Dec. 1, 2011) (A pre-employment drug test should have placed
the applicant on notice that drug use was incompatible with his employment.  The applicant’s use
of marijuana after this test suggests a lack of willingness to follow rules and regulations); see also
ISCR Case No. 07-00852 at 3 (App. Bd. May 27, 2008) (Use of marijuana after having submitted
an SCA undercuts the applicant’s promise to avoid such conduct in the future).  The Judge’s failure
to address this aspect of the case impairs his whole-person analysis.  
Given the record that was before the Judge, the decision failed to consider important aspects
of the case.  The Judge’s favorable decision is not sustainable, in view of the standard set forth in
Egan, supra.
Order
The Decision is REVERSED.  
Signed; Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
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Signed: James E. Moody               
James E. Moody
Administrative Judge
Member, Appeal Board