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       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
-------------------- ) ISCR Case No. 17-01680 
) 
Applicant for Security Clearance ) 
Appearances 
 For Government: Andre Gregorian, Esquire, Department Counsel 
     For Applicant: Alan V. Edmunds, Esquire 
______________ 
Decision 
______________ 
MARSHALL, Jr., Arthur E., Administrative Judge: 
    Statement of the Case 
On July 17, 2017, the Department of Defense (DOD) Consolidated Adjudication 
Facility (CAF) issued Applicant a Statement of Reasons (SOR) detailing security 
concerns under Guideline D (Sexual Behavior) and Guideline E Personal Conduct).1 In 
a September 6, 2017, response, Applicant answered the allegations and requested a 
hearing before a Defense Office of Hearings and Appeals (DOHA) administrative judge. 
I was assigned the case on June 12, 2018.  
A June 20, 2018, notice was issued which set the hearing for August 22, 2018. 
The hearing was convened as scheduled. The Government offered five documents, 
accepted into the record without objection as exhibits (Exs.) 1-5. Applicant offered 
testimony and 16 exhibits, accepted without objection as Exs. A-P. The record was held 
open through August 31, 2018, in the event either party wished to submit additional 
materials. The transcript (Tr.) of the proceeding was received on August 30, 2018. On 
August 31, 2018, Applicant offered what was marked as Ex. P. With no objection 
1 The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry 
(February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security 
Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines 
(AG) effective within the DOD on or after June 8, 2017. 
03/29/2019
 
 
 
 
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forthcoming, the item was accepted on September 1, 2018, and the record was closed. 
Based on the testimony, materials, and record as a whole, I find Applicant failed to 
mitigate sexual behavior and personal conduct security concerns. 
 
     Findings of Fact 
 
 Applicant is a 54-year-old reliability engineer who has worked for the same entity 
for nearly six years. He has earned a bachelor of science degree, three master’s 
degrees, and a doctorate degree. In the interim, he accepted a commission in the U.S. 
Army, where he began with his Army Reserves unit in 1987. He was transferred to the 
retired Army Reserves as a lieutenant colonel after 26 years. Most recently, he 
completed seminary school and became a chaplain at the rank of major.  
 
 In 2007, Defense Criminal Investigative Services (DCIS) and Immigration and 
Customs Enforcement (ICE) conducted a national investigation that identified over 
5,000 U.S. individuals, some with DOD affiliations, who subscribed to known child 
pornography websites. In 2007, Applicant returned from a deployment with a compact 
disc (CD) of some military orders and sermons. (Tr. 24, 37) He did not realize the orders 
were sensitive or otherwise protected. (Tr. 41) Applicant also returned suffering from 
Post-Traumatic Stress Disorder (PTSD).  
 
Applicant’s home was searched as part of the DCIS and CID national 
investigation. He admitted viewing adult content of a titillating nature on the Internet. 
Apparently, no images of underage individuals, however, were found and archived that 
were noted as pornographic. (Tr. 34-36) The past military orders, however, were found. 
Applicant claimed that someone had given him permission to have the orders, but he 
was unable to provide a name or documentation reflecting permission was given. A 
written warning for mishandling classified information was issued.   
 
When Applicant came back from his next deployment in 2011, his estranged wife 
told him that two deployments was too much for their marriage, and that she wanted a 
divorce. (Tr. 22) Their five year marriage would end in divorce in 2013. (Tr. 17-18) After 
she moved away, he had difficulty sleeping. As a result, he would spend the nights on 
the computer viewing pornography. (Tr. 19) 
 
In late 2010, DCIS and CID determined that its previous investigational checks 
had left several leads insufficiently examined or deficiently investigated. (Ex. 3 at 2) In 
June 2011, Applicant was again investigated by DCIS/CID for possession of child 
pornography. This entailed reopening the 2007 investigation, during which time the lab, 
which had lost its evidence from 2007, inspected new material. (Tr. 36). Also, a mix-up 
of some sort led to a hard drive that did not belong to Applicant being made part of the 
investigation.  
 
During the interview, Applicant was asked if he had any unauthorized charges to 
his credit card. He answered a charge had been made for a hotel. When specifically 
asked about a particular website he had visited, he chose to end the interview and 
 
 
 
 
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consult an attorney. (EX. 3 at 2) His clearance and access were suspended in August 
2012. (Ex. 2) Later, four to six images were discovered on Applicant’s media, two 
images were identified as containing known child victims identified by the National 
Center for Missing and Exploited Children (NCMEC).2 (Ex. 3 at 3) 
 
In 2012, Applicant returned from another deployment. At the conclusion of the 
investigation, the Assistant U.S. Attorney’s office declined to prosecute due to 
evidentiary deficiencies and statute of limits issues. (Ex. 3) Local prosecutors similarly 
declined to prosecute the matter.3 However, a Memorandum of Reprimand (MOR) was 
issued to Applicant on January 26, 2013. He was given 15 days from receipt of the 
MOR to respond in rebuttal, extenuation, or mitigation. (Ex. 2) A general officer’s letter 
of reprimand dated January 26, 2013, was issued, determining that child pornography 
and unsecured classified material was found at Applicant’s home. (Ex. 2) This fact was 
found to be particularly “reprehensible” and “disturbing” because Applicant is an Army 
chaplain. (Ex. 3 at 4) The reprimand became final in April 2013. Applicant was 
transferred to retired reserve status on May 1, 2013, with the recommendation his 
security clearance be revoked. (Ex. 2)  
 
Applicant disagrees with the assessment of the military that the images at issue 
were child pornography. Applicant has viewed the photos, noting that some were nude, 
while others included scanty clothing. He testified that he had never seen the photos 
before. Throughout the hearing, Applicant stressed the models were not engaged in 
sexual activity and, therefore, could not be deemed child pornography, per se. Applicant 
repeatedly acknowledged that his reputation would be harmed if the issues regarding 
sexual behavior became public knowledge.  
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are used 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 overarching 
adjudicative goal is a fair, impartial, and commonsense decision. According to the AG, 
the entire process is a conscientious scrutiny of a number of variables known as the 
“whole-person concept,” each of which must be fully considered in making a decision. 
                                                          
2 In December 2012, four of the children were determined to be underage by professionals according to 
body habitus and other criteria. (Ex. 3 at 4)  
 
3 It is noted that the lack of criminal charges does not preclude a finding that an applicant engaged in the 
conduct underlying the cited offenses nor does it indicate such offenses are entitled to little weight. See, 
e.g., ISCR Case No. 12-11795. 
 
 
 
 
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The protection of the national security is the paramount consideration. Any doubt 
concerning personnel being considered for national security eligibility and will be 
resolved in favor of the national security. In reaching this decision, I have drawn only 
those conclusions that are reasonable, logical, and based on the record evidence. 
Under the Directive, the Government must present evidence to establish controverted 
facts alleged in the SOR. Under the Directive, 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 and has the ultimate burden of persuasion 
to obtain a favorable security decision.  
 
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. Decisions include consideration of the possible risk an 
applicant may deliberately or inadvertently fail to safeguard classified information. 
Decisions are in terms of the national interest and shall in no sense be a determination 
as to the loyalty of the applicant.   
 
Analysis 
 
Guideline D, Sexual Behavior  
 
AG ¶ 12 sets forth the security concern as follows:  
 
Sexual behavior that involves a criminal offense; reflects a lack of 
judgment or discretion; or may subject the individual to undue influence of 
coercion, exploitation, or duress. These issues, together or individually, 
may raise questions about an individual's judgment, reliability, 
trustworthiness, and ability to protect classified or sensitive information. 
Sexual behavior includes conduct occurring in person or via audio, visual, 
electronic, or written transmission. No adverse inference concerning the 
standards in this Guideline may be raised solely on the basis of the sexual 
orientation of the individual.  
 
Applicant began viewing Internet-derived pornography for entertainment at some 
point in his life prior to 2007. He was identified by DSIC and CID as an individual whose 
credit card had been linked to known child pornography websites. His premises and 
media were inspected in 2007, but the inspection was deemed inadequate in 2010. In 
2011, he was again subject to investigation. He quit complying with investigators when 
asked about a specific website known to offer child pornography. What was deemed to 
be child pornography was found, but the Assistant U.S. Attorney and local authorities 
declined to prosecute due to issues involving the material and the statue of limitations.  
 
The military, however, found the investigative findings and Applicant’s conduct to 
be particularly “reprehensible” and “disturbing” because Applicant is an Army chaplain. 
A formal reprimand was issued and became final in April 2013. As a result, Applicant 
was transferred to retired reserve status on May 1, 2013, with the recommendation his 
 
 
 
 
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security clearance be revoked. His sexual behavior has thus became a concern 
because he is now susceptible to coercion, exploitation, or duress and it could 
adversely affect his reputation, esteem in the community, judgment, and his ability to 
find or keep a job.   
 
AG ¶ 13 provides conditions that could raise a disqualifying condition:  
 
AG ¶ 13 (a):  sexual behavior of a criminal nature . . . ; 
 
AG ¶ 13 (b): pattern of compulsive, self-destructive, or high-risk sexual 
behavior that the individual is unable to stop; 
 
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 or that reflects lack of 
discretion or judgment.  
 
Under these circumstances, AG ¶ 13 (a) and AG ¶ 13 (c) apply. 
 
AG ¶ 14 provides the following possible mitigating conditions:  
 
AG ¶ 14 (a): the behavior occurred prior to or during adolescence and 
there is no evidence of subsequent conduct of similar nature;  
 
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 
judgment; 
 
AG ¶ 14 (c): the behavior no longer serves as a basis for coercion, 
exploitation, or duress; 
 
AG ¶ 14 (d): the sexual behavior is strictly private, consensual, and 
discreet; and  
 
AG ¶ 14 (e): the individual has successfully completed an appropriate 
program of treatment, or is currently enrolled in one, has demonstrated 
ongoing and consistent compliance with the treatment plan, and/or has 
received a favorable prognosis from a qualified mental health professional 
indicating the behavior is readily controllable with treatment.  
 
The behavior at issue occurred in Applicant’s middle years. Applicant’s continued 
protestation that the material at issue was not child pornography, despite the fact this is 
not the forum to appeal previous findings by DCIS and the military, makes it difficult to 
judge whether such behavior could recur. The established facts of record in the 
 
 
 
 
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Government’s exhibits do tend, however, to bring into question Applicant’s judgment 
and current reliability. Two of the children were identified as having been previously 
identified as missing or exploited children, obviating application of AG ¶ 14 (d). 
Applicant is not currently in treatment or a recent graduate of an appropriate program. 
Therefore, I find none of the mitigating conditions apply. 
 
Guideline E, Personal Conduct  
 
 The security concern for personal conduct is set out in AG ¶ 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 or sensitive information. 
 
 AG ¶ 16 describes conditions that could raise a security concern and may be 
disqualifying. The following disqualifying condition is potentially applicable: 
 
AG ¶ 16(e): personal conduct, or concealment of information about one’s 
conduct, that creates a vulnerability to exploitation, or duress by a foreign 
intelligence entity or other individual or group. Such conduct includes: (1) 
engaging in activities which, if known, could affect the person’s personal, 
professional, or community standing. . . .  
 
Here, Applicant was the subject of the aforementioned investigation regarding 
child pornography in 2007 and in 2010. While federal and local prosecutors declined to 
prosecute, the military issued a formal reprimand seriously condemning the behavior 
exhibited, and the disgrace wrought by one of its own chaplains under these 
circumstances. Applicant admits public knowledge of the facts involved would harm his 
reputation. Also, Applicant was found with sensitive or protected information on his 
personal media during the 2007 investigation. Therefore, AG ¶ 16(e) applies.    
 
I have considered these facts in light of the AG ¶ 17 mitigating conditions. I find 
the following potentially applicable: 
 
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 it is unlikely to recur and does not cast doubt on the 
individual’s reliability, trustworthiness, or good judgment; and 
 
AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress.  
 
Here, the offenses at issue are particularly worrisome, as issues both reflecting 
poor judgment and a lack of trustworthiness. Applicant attempted to absolve himself of 
responsibility for the sensitive or protected material by stating he was told he could 
 
 
 
 
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possess the material, but he failed to provide a name or documentary evidence 
supporting this claim. On one hand, Applicant continues to deny having downloaded 
child pornography, on the other hand, he failed to show how the Government’s 
documentary evidence is incorrect. Further, in neither situation of misconduct has he 
raised any mitigating facts that would tend to show some form of similar conduct, be it 
intentional or accidental, will not occur in the future. AG ¶ 17(c) does not apply. 
Moreover, by fearfully keeping the matter private, he failed to give rise to AG ¶ 17(e). 
 
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 relevant circumstances. The administrative judge should consider the 
nine adjudicative process factors listed at AG ¶ 2(d):  
 
(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. I considered the 
potentially disqualifying and mitigating conditions in light of all the facts and 
circumstances surrounding this case. I have incorporated my comments under 
Guideline D and Guideline E in my whole-person analysis. I also considered Applicant’s 
testimony, materials, and references.  
 
 Overall, the record evidence leaves me with notable questions or doubts about 
Applicant’s eligibility and suitability for a security clearance. I conclude sexual behavior 
and personal conduct security concerns remain unmitigated.  
 
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:    AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.b:   Against Applicant 
 
 
 
 
 
 
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Paragraph 2, Guideline E:    AGAINST APPLICANT 
 
  Subparagraphs 2.a-2.b:   Against Applicant 
 
          Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant a security clearance. 
Eligibility for access to classified information is denied. 
 
 
                                                     
_____________________________ 
Arthur E. Marshall, Jr. 
                                                     Administrative Judge