Initially Applicant requested a decision on the record, but later requested a hearing.      1
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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)      ISCR Case No. 14-02335
)
)
Applicant for Security Clearance
Appearances
For Government: Nicole A. Smith, Esq., Department Counsel
For Applicant: Pro se
                                                                            
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Decision
______________
LYNCH, Noreen, A., Administrative Judge:
On October 2, 2014, the Department of Defense (DOD)  issued a Statement of
Reasons (SOR) alleging security concerns arising under Guideline J (Criminal Conduct)
and Guideline E (Personal Conduct). The action was taken under Executive Order
10865, Safeguarding Classified Information within Industry (February 20, 1960), as
amended; Department of Defense (DOD) Directive 5220.6. Defense Industrial
Personnel Security Clearance Review Program (January 2, 1992), as amended
(Directive); and the Adjudicative Guidelines (AG) implemented in September 2006. 
Applicant timely answered the SOR and requested a hearing before an
administrative judge.  A notice of hearing was sent on May 18, 2015, scheduling the1
hearing for July 10, 2015. The Government submitted three exhibits (GX 1-3), which
were admitted into the record. Applicant submitted five post-hearing exhibits (AX A-E) 
which were admitted into the record without objection. Based on a review of the
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pleadings, submissions, testimony and exhibits, I find Applicant met his burden
regarding the security concerns raised. Security clearance is granted.
Findings of Fact
In his answer to the SOR, Applicant admitted the factual allegations under
Guideline J (Criminal Conduct) and under Guideline E (Personal Conduct) with
explanations. 
Applicant is a 51-year-old senior analyst for a defense contractor. Applicant
obtained his undergraduate degree in 1986. He attended the Naval Postgraduate
School until 1993, receiving a Master’s degree in aeronautical engineering. In 2003,
Applicant obtained a second master’s degree in national security and strategic studies
from the Naval War College. He was a commissioned officer in the Navy from 1986
until 2011. He retired from the Navy as a commander. Applicant is separated from his
wife and has one adult child. Applicant has worked for his current employer since 2011.
He has held a security clearance since 1989. (GX 1)
Criminal Conduct
Applicant was arrested and charged with solicitation of prostitution. In November
2013, he pled guilty and received Probation Before Judgment (PBJ). He was on
unsupervised probation for a period of 18 months, which he successfully completed. He
also completed 24 hours of community service.
Applicant was overcome with several life events, including marital separation,
changing jobs, difficulty with his daughter accepting his pending divorce, and living
alone for the first time. (Tr. 20) One evening, he was searching through Craig’s list for a
kayak and decided to look at the personal section. He saw an ad for meeting single
women. Applicant contacted the woman by email for several days and they decided to
meet. Applicant was given a phone number to call. Applicant explained that the woman
told him when he would call, she would give him a place to meet. After they exchanged
emails and she mentioned to bring “green,” he became aware that he would have to
pay her for sex. When he first saw the ad, he did not have any intention of looking for a
prostitute.  He decided to go anyway after realizing that she expected money. When he
arrived, she asked if he had brought money and to show it to him. As soon as he did,
police came out and arrested him. At that point, he realized that she was an undercover
police officer. (Tr. 37)
Applicant remembers that this event occurred on a Thursday evening. He went
to work the next day with the intention of telling his employer. However, it was a Friday
and everyone had taken a flex day. Over the weekend the incident was publicized on
the local media. His name was noted. This was part of a larger law enforcement “sting”
in the area. By the time that Applicant arrived at work on Monday everyone in his office
already knew about the arrest. (GX 3)
Applicant had never solicited a prostitute before in his entire life. He knew that
this was wrong and realized that this could affect his security clearance. He realizes it
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was stupid. On Monday, Applicant met with his employer and told him what had
happened. His employer expressed his confidence in him and did not question his
ability to continue to hold a security clearance. (Tr. 22)
Applicant credibly explained that this was truly an isolated event. He understands
the serious nature of the event. He has  rehabilitated himself by keeping busy. He
started a small business working outdoors (firewood cutting) to resolve stressors and to
keep physically busy. (Tr. 22) He has had two years to think about this event. He knows
this was a serious lapse of judgment. He did not undertake separate counseling
because he did not have a good experience with grief counseling when two of his
children died. He just did not believe the counseling would help. He has devoted himself
to repairing a relationship with his adult daughter. He understands that the incident is
common knowledge since it was on radio. (GX 2) He takes full responsibility for the
event. He was quite remorseful about the situation, especially since he has an,
otherwise unblemished 29- year career.
Applicant has no other criminal incidents in the record. Applicant submitted a
2015 performance appraisal and letters of recommendation. Applicant has three
Meritorious Service Medals, five Navy Commendation Medals, and he served in Desert
Storm Operation receiving Strike Flight Air Medals. He also noted the personal
commendations that he received while in the Navy. (AX A) 
Applicant’s current manager wrote a letter, dated July 13, 2015, which attested to
the fact that he has known Applicant for four years. He is aware of Applicant’s arrest in
2013. He gives concludes that a single mistake is not indicative of a man’s character
and that a single lapse in judgment may not mean a loss of integrity or personal
responsibility. (AX B)
Applicant’s executive vice-president, in a letter dated July 13, 2015, notes that
the incident that occurred two years ago is indeed an isolated incident, and he does not
see a recurrence. He appreciates the steps Applicant has taken on his own to
demonstrate commitment to ensuring no further lapse in judgment. He notes that
Applicant is an ideal candidate for the special trust and confidence that accompanies a
security clearance. Finally, he believes that Applicant’s experience, training, and
education make him an asset to the nation. (AX C)
Applicant’s 2013 supervisor wrote, in a letter dated July 14, 2015, that he has
continued confidence in Applicant. He has had numerous discussions with Applicant
about the event. He knows that Applicant deeply regrets his indiscretion, has taken
ownership of his actions, and has made positive changes in his life. He does not feel
that Applicant presents a risk to the nation. (AX D)
Personal Conduct
Applicant admitted the information that was raised under the Criminal Conduct
Guideline. The  Personal Conduct allegation in SOR ¶ 2.a duplicates and incorporates
this same conduct. 
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      2
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).      3
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      4
 See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive      5
information), and EO 10865 § 7.
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 Policies
When evaluating an applicant’s suitability for a security clearance, an
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. These guidelines are not inflexible
rules of law. Instead, recognizing the complexities of human behavior, they are applied
in conjunction with the factors listed in the adjudicative process. An administrative
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision.
Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables
known as the “whole-person concept.” An 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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
The Government must present evidence to establish controverted facts alleged
in the SOR. 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. . . .”  The burden of proof is something less than a2
preponderance of evidence.  The ultimate burden of persuasion is on the applicant.  3 4
A person seeking access to classified information enters into a fiduciary
relationship with the Government based on trust and confidence. This relationship
transcends normal duty hours and endures throughout off-duty hours. The Government
reposes a high degree of trust and confidence in individuals to whom it grants access to
classified information. Decisions include, by necessity, consideration of the possible risk
the applicant may deliberately or inadvertently fail to protect classified information. Such
decisions entail a certain degree of legally permissible extrapolation of 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.”  “The clearly consistent standard indicates that security clearance5
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      6
 Id.      7
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determinations should err, if they must, on the side of denials.”  Any reasonable doubt6
about whether an applicant should be allowed access to sensitive information must be
resolved in favor of protecting such information.  The decision to deny an individual a7
security clearance does not necessarily reflect badly on an applicant’s character. It is
merely an indication that the applicant has not met the strict guidelines the President
and the Secretary of Defense established for issuing a clearance.
Analysis
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining to criminal conduct: “Criminal
activity creates doubt about a person'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:
(a) a single serious crime or multiple lesser offenses;
(b) discharge or dismissal from the Armed Forces under dishonorable
conditions;
(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted;
(d) individual is currently on parole or probation; and
(e) violation of parole or probation, or failure to complete a court-
mandated rehabilitation program.
Applicant’s admission and the evidence of arrest in 2013 for prostitution, a
misdemeanor, is sufficient to raise AG ¶¶ 31(a) and (c). 
AG ¶ 32 provides three conditions that are potentially 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;
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(b) the person was pressured or coerced into committing the act and
those pressures are no longer present in the person's life; 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.
After reviewing the mitigating conditions, I find that due to the passage of time
and the absence of any other criminal incidents, AG ¶ 32(a) applies. This was an
isolated incident in his life. He has no criminal conviction because he successfully
completed probation before judgment. It was isolated with respect to his marital
separation. Also, Applicant has produced evidence of rehabilitation, including good
employment. He expressed his remorse and embarrassment about his conduct.  AG ¶
32(d) applies.  I find that he has  mitigated the security concern under criminal conduct. 
 Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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 ¶ 16 describes the following conditions that could raise a security concern and may
be disqualifying:
(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;
(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:
(1) untrustworthy or unreliable behavior to include breach of
client confidentiality, release of proprietary information,
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unauthorized release of sensitive corporate or other
government protected information;
(2) disruptive, violent, or other inappropriate behavior in the
workplace; 
(3) a pattern of dishonesty or rule violations; and
(4) evidence of significant misuse of Government or other
employer's time or resources.
(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,....
Applicant admitted in his answer to the SOR that his conduct reflected
questionable judgment with regard to the incident in August 2013. His conduct
adversely affected his personal, professional, and community standing. AG  He takes
full responsibility for his actions. He has taken positive steps. There is no vulnerability or
possibility of coercion, as the incident was publicized in the local media. Everyone who
knows him knows about the arrest.    
AG ¶ 17 provides conditions that could mitigate security concerns:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was
caused or significantly contributed to by improper or inadequate advice of
authorized personnel or legal counsel advising or instructing the individual
specifically concerning the security clearance process. Upon being made
aware of the requirement to cooperate or provide the information, the
individual cooperated fully and truthfully;
(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;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
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(f) the information was unsubstantiated or from a source of questionable
reliability; and
(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.
Applicant acknowledged his criminal behavior in his answer. This was an isolated
incident.  Under 17(c), 17(d) and 17(e) there is mitigation. As discussed above,
Applicant takes full responsibility for his lapse in judgment. I have no doubts about his
judgment and reliability. After considering the mitigating conditions outlined in AG ¶ 17,
I conclude Applicant has mitigated the security concern under personal conduct. 
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 an 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. As noted above, the
ultimate burden of persuasion is on the applicant seeking a security clearance. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the whole-person factors.
Applicant has rehabilitated himself with respect to the 2013 arrest. This occurred during
a period of stress in his life. He has an outstanding military and professional career. He
has held a security clearance  since 1989 without incident. He presented favorable
reports from his employer. He has no other criminal incidents. This was an isolated
incident. This behavior is unlikely to recur. There is no possibility of manipulation or
coercions due to the media publications of the arrest. He has mitigated the criminal
conduct concerns, as well as the personal conduct security concerns.
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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 J: FOR APPLICANT
Subparagraph 1.a: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant a security clearance.
Clearance is granted. 
                                                     
NOREEN A. LYNCH.
Administrative Judge