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                             DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 14-06100
)
)
Applicant for Security Clearance )
Appearances
For Government: Andrew Henderson, Esquire, Department Counsel
For Applicant: Brian Cruz, Esquire
February 3, 2016
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on November 14, 2012.  On May 7, 2015, the Department of Defense (DOD)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
D, J and E for Applicant.  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 within the Department of Defense after
September 1, 2006. 
Applicant acknowledged receipt of the SOR on May 21, 2015.  He answered the
SOR in writing on June 8, 2015, and requested a hearing before an Administrative
Judge.  The Defense Office of Hearings and Appeals (DOHA) received the request
soon thereafter, and I received the case assignment on September 1, 2015.  I granted
Applicant’s request for a delay until November 10, 2015, in order for his counsel to be
available.  DOHA issued a notice of hearing on October 15, 2015, and I convened the
hearing as scheduled on November 10, 2015.  The Government offered Exhibits (GXs)
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1 and 2, which were received without objection.  Applicant testified on his own behalf
and submitted Exhibits (AppXs) A through I, which were received without objection.
DOHA received the transcript of the hearing (TR) on November 18, 2015.  I granted
Applicant’s request to keep the record open until December 10, 2015, to submit
additional matters.  On December 4, 2015, he submitted Exhibit J, which was received
without objection.  The record closed on December 10, 2015.  Based upon a review of
the pleadings, exhibits, and testimony, eligibility for access to classified information is
granted.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Subparagraphs 1.a., 1.b., 3.b., 3.c. and 3.e. of the SOR, with explanations.  He denied
the factual allegations in Subparagraphs 2.a., 3.a. and 3.d. of the SOR.
Applicant is 32 years old, has a Masters degree, and has been employed by his
current employer, a “Federal Contractor,” since February of 2009.  (TR at page 10 line
25 to page 11 line 7, at page 13 line 1 to page 15 line 19, and GX 1 at page 13.)
Guideline D - Sexual Behavior & Guideline J - Criminal Conduct
1.a. 1.b. and 2.a.  In 2006, Applicant inadvertently downloaded child
pornography.  (TR at page 33 line 11 to page 35 line 21, at page 46 line 10 to page 51
line 18, and at page 53 line 25 to page 54 line 12.)  He described the incident in the
following terms: “It was probably in around 06.  Like I didn’t intend to view it.  I was just
looking at regular pornography.  I downloaded like a file and it came up and it was child
pornography.  It was mislabeled.”  (TR at page 33 lines 14~17.)  Once he realized what
it was, he “deleted it immediately.”  (TR at page 34 lines 8~13, see also at page 50 lines
2~8.)  This is the only time he viewed such pornography.
Guideline E - Personal Conduct
3.a.~3.e.  In October of 2006, Applicant took his first polygraph test.  (TR at page
17 line 19 to page 18 line 9.)  The test lasted “probably three to five hours,” and he was
informed he failed the test due to questions related to drugs.  (TR at page 22 line 25 to
page 26 line 8, and at page 54 lines 17~21, see also at page 43 lines 16~22.)  He
denies ever being involved with illegal drugs, and the Government does not allege any
drug involvement.  (Id.)
Applicant was “baffled” by this result; and as such, he “Googled [the] Polygraph
Process.”  (TR at page 26 line 9 to page 28 line 2, see also at page 51 line 22 to page
52 line 20.)  He explained his thought process in the following terms: “They said I
couldn’t get an accurate reading.  So I was trying to see, well, if I could relax myself or
something so they could get an accurate reading.”  (TR at page 27 lines 13~15,
emphasis supplied.)  This inquiry does not constitute an attempted wrongful
manipulation of the polygraph process.  It was merely a legitimate inquiry, in an attempt
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to understand the polygraph process.  Furthermore, those who know Applicant in the
workplace aver that he is a credible individual.  (AppXs A~C.)  
In November of 2006, Applicant took a second polygraph test.  (TR at page 18
lines 10~19, at page 28 line 3 to page 29 line 20, at page 44 line 7 to page 45 line 13,
and at page 54 lines 22~25.)  This test lasted “probably three or four hours,” and he
again failed as “they couldn’t get an accurate reading.”  (TR at page 28 lines 10~17, and
at page 54 lines 22~25.)
In October of 2007, Applicant took a third polygraph test.  (TR at page 18 line 20
to page 19 line 7, at page 29 line 22 to page 33 line 3, at page 36 lines 19~24, and at
page 45 lines 14~18.)  He describes this test in the following terms: “they said I did
better this time; that they were able to get a better reading.  Like they led me to believe
that I passed at the end.  But then I get a letter saying I didn’t pass.”  (TR at page 32
lines 7~10.)  During this polygraph test, as he did during the prior two tests, Applicant
fully admitted his inadvertent viewing of child pornography back in 2006.  (TR at page
32 line 15 to page 33 line 10.)  Due to his three polygraph failures, Applicant was denied
access to Sensitive Compartmental Information (SCI) in November of 2008, not due to
his one-time inadvertent viewing of child pornography two years earlier, as alleged.  (TR
at page 36 line 25 to page 39 line 10.)
Applicant’s retired father held a security clearance for “over 30 years.”  (AppX J.)
He, like his son, “could not pass the polygraph based on inability to get accurate
readings during the test.”  (Id, see also TR at page 11 line 10 to page 12 line 24.)
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG).  In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful in
evaluating an Applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law.  Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process.  The administrative judge’s over-arching
adjudicative goal is a fair, impartial and commonsense decision.  According to AG
Paragraph 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
Paragraph 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
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and based on the evidence contained in the record.  Likewise, I have avoided drawing
inferences grounded on mere speculation or conjecture.
Under Directive Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph E3.1.15,
the Applicant is responsible “to rebut, explain, extenuate, or mitigate facts admitted by
applicant or proven by Department Counsel. . . .”  The Applicant has the ultimate burden
of persuasion as to obtaining 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 protect or
safeguard classified information.  Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.”  See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).
Analysis
Guideline D - Sexual Behavior
The security concern relating to the guideline for Personal Conduct is set out in
Paragraph 12:
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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 13(a), “sexual behavior of a criminal nature, whether or not the individual
has been prosecuted” may be disqualifying.  Applicant inadvertently viewed child
pornography, on one occasion in 2006.  However, this is countered by the mitigating
conditions in Subparagraph 14(b).  Under 14(b) where “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” it may be mitigating.  This one time, inadvertent occurrence happened
nearly ten years ago.  Sexual Behavior is found for Applicant.
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Guideline J - Criminal Conduct
Paragraph 30 of the adjudicative guidelines sets out the security concern relating
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.
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Paragraph 31(c) provides that an “allegation . . . of criminal conduct,
regardless of whether the person was formally charged . . .,” may raise security
concerns.  Applicant inadvertently viewed child pornography.  However, this is clearly
countered by the mitigating condition in Subparagraph 32(a) as “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.”  Even assuming that Applicant’s one time,
inadvertent viewing was criminal, this viewing occurred nearly ten years ago.  I find that
such criminal conduct is unlikely to recur, and that criminal conduct is found for
Applicant.
Guideline E - Personal Conduct
The security concern for Personal Conduct is set out in AG Paragraph 15:
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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(c), “credible adverse information in several adjudicative issue areas
that is not sufficient for an adverse determination under any single guideline, but which,
when considered as a whole, supports a whole-man assessment of questionable
judgment, untrustworthiness, unreliability . . . .”  However, I find the countervailing
mitigating condition under Subparagraph 17(c) applicable here.  Subparagraph 17(c),
requires that “the offense is so minor, or so much time has passed . . . 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.”  There is no showing that
Applicant tried to manipulate the last two polygraph tests he was administered.
Furthermore, the last test was administered more than seven years ago.  Like his father,
it appears he failed all three tests due to his physiology.  Personal Conduct is found for
Applicant.
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Whole-Person Concept
Under the whole-person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances.  Under AG Subparagraph 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.
The Administrative Judge should also consider the nine adjudicative process
factors listed at AG Subparagraph 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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Applicant is highly regarded in the work
place.  (AppXs A~C, H and I.)  The record evidence leaves me without questions or
doubts as to Applicant’s eligibility and suitability for a security clearance.  For all these
reasons, I conclude Applicant has mitigated the security concerns arising from his
alleged Sexual Behavior, Criminal Conduct and Personal Conduct.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline D: FOR APPLICANT
Subparagraphs 1.a. and 1.b.: For Applicant
Paragraph 2, Guideline J: FOR APPLICANT
Subparagraph 2.a: For Applicant
Paragraph 3, Guideline E: FOR APPLICANT
Subparagraphs 3.a.~3.e.: For Applicant
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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 eligibility for a security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge