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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
)
[Redacted] ) ISCR Case No. 17-04312 
)
Applicant for Security Clearance ) 
Appearances 
For Government: Daniel F. Crowley, Esq., Department Counsel 
For Applicant: Troy L. Nussbaum, Esq. 
______________ 
Decision 
______________ 
FOREMAN, LeRoy F., Administrative Judge: 
This case involves security concerns raised under Guidelines D (Sexual 
Behavior) and E (Personal Conduct). Eligibility for access to classified information is 
granted. 
Statement of the Case 
Applicant submitted a security clearance application (SCA) on November 17, 
2015. On January 10, 2018, the Department of Defense Consolidated Adjudications 
Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns 
under Guidelines D and E. The DOD CAF acted under Executive Order (Exec. Or.) 
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) promulgated in Security Executive Agent Directive 4, National Security 
Adjudicative Guidelines (December 10, 2016), for all adjudicative decisions on or after 
June 8, 2017. 
03/13/2019
 
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 Applicant answered the SOR on March 19, 2018, and requested a hearing before 
an administrative judge. Department Counsel was ready to proceed on May 11, 2018, 
and the case was assigned to an administrative judge on May 16, 2018. It was 
reassigned to me on November 15, 2018. On December 21, 2018, the Defense Office 
of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for 
February 5, 2019. I convened the hearing as scheduled. Government Exhibits (GX) 1 
through 3 were admitted in evidence without objection. GX 4 and 5 were not admitted. 
Applicant testified, presented the testimony of one witness, and submitted Applicant’s 
Exhibits (AX) A through E, which were admitted without objection. I kept the record 
open until February 19, 2019, to enable Applicant to submit additional documentary 
evidence. He timely submitted AX F, which was admitted without objection. DOHA 
received the transcript (Tr.) on February 21, 2019. 
 
Findings of Fact1 
 
 In Applicant’s answer to the SOR, he admitted all the allegations. His admissions 
in his answer and at the hearing are incorporated in my findings of fact. His answer to 
the SOR included eight exhibits (SOR Exhibits A through H). 
 
 Applicant is a 55-year-old self-employed owner and president of a federal 
contractor that provides recovery, screening, and sanitizing of discarded information-
technology (IT) materials. He has owned and operated the company since September 
2009. He was a self-employed truck driver from March 2007 to September 2009 and a 
driver for a landscaping company from April 2005 to March 2007.  
 
 Applicant married in February 1986, divorced in February 1999, and married his 
current spouse in February 2000. He graduated from high school and completed one 
semester of college. He has four adult children and two adult stepchildren. His son, a 
Navy veteran, is a co-owner of his business and its facility security officer. (SOR Exhibit 
H at 1.) 
 
Applicant received a security clearance in October 2013. He submitted his most 
recent SCA to obtain eligibility for access to sensitive compartmented information (SCI). 
His application was denied in October 2015. (GX 2.) 
 
 At the hearing, Applicant testified that, for several years before 2006, he and his 
wife were focused on parenting and “really weren’t much of a couple.” In 2006, he 
seriously injured his neck and back while in heavy surf at the beach. His wife had urged 
him not to go into the water, but he did not comply with her urging. He spent about three 
months wearing a “halo,” which immobilized his head and neck, followed by a cervical 
collar for about four weeks. (SOR Exhibit C.) During his recovery period after he was 
injured, his wife informed him that there would be no more sexual intimacy between 
them. Neither spouse wanted a divorce, because it would tear apart the family. At the 
                                                          
1 Applicant’s personal information is extracted from his security clearance application (GX 1) unless 
otherwise indicated by a parenthetical citation to the record. 
 
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time, Applicant’s children were 21, 20, 17, and 13 years old. (Tr. 50-55.) He told a 
clinical psychologist that his choices were “leave the marriage and break up the family, 
or go without sex, or find sex elsewhere.” (AX C at 7.) 
 
Near the end of 2006, Applicant was driving a truck far from home and 
experiencing persistent neck and back pain. He stopped at a massage parlor, and at the 
end of the massage he unexpectedly received a “happy ending,” by having his genitals 
massaged to the point of orgasm. He repeated his experience about every two months. 
His genitals were usually massaged manually and sometimes orally. He had sexual 
intercourse on two occasions. He did not feel that oral or manual stimulation was wrong, 
but he was uncomfortable with intercourse, and he did not return to the places where 
intercourse occurred. In each case, when he received sexual services, he had not 
specifically requested them but did not stop them. (Tr. 63.) He recognized that the 
experience was illegal in some of the places he visited. (Tr. 56-57.)  
 
In the late 1990s Applicant began shoplifting food items at highway rest stops. 
He believed that food items were “ludicrously overpriced,” and he felt that he was ‘being 
ripped off.” To compensate for the overpricing, he would take two food items but pay for 
only one. During the years he was shoplifting, he estimated that the total value of items 
taken was less than $100. (Tr. 59-61.) 
 
Applicant testified that in October 2014, during the interviews involved in the 
adjudication of his SCI application, he suddenly realized the seriousness and gravity of 
his conduct. (Tr. 66.) When he went home after the interviews in which he disclosed his 
behavior, he disclosed everything to his wife. He testified, “I recognized that as painful 
of a conversation as that would be, there’d be no way that I could hold a position of trust 
if I didn’t do that.” (Tr. 67.) His wife has forgiven him and they have become very close, 
to the extent that they communicate several times a day, even when they are 
geographically separated. He disclosed his conduct to a close business associate and 
his former director of security. (Tr. 70.) 
 
Applicant has not disclosed his conduct to his children, because he and his wife 
have agreed to keep the matter as private as possible. He testified that if someone 
threatened to disclose his conduct to his children, he would immediately notify the 
appropriate authorities, and then gather the family and fully disclose what he had done. 
He recognizes that the children would be hurt and might not speak to him. He testified, 
“My children love me, and I love them. We would get through that without any real 
tearing the family apart, so to speak.” (Tr. 85-86.)  
 
After the unfavorable adjudication of his application for SCI eligibility, Applicant 
changed his lifestyle. He had been grossly overweight, and he lost 100 pounds. He, 
stopped smoking after 37 years, and became involved in community activities. Most 
importantly, he and his wife resumed the close and affectionate relationship that they 
enjoyed when they first married. (Tr. 71-72.) Applicant’s wife submitted a statement 
affirming that she and Applicant are still in love and moving forward with their lives. She 
stated that Applicant is “doing everything in his power to atone for his prior sins.” She 
 
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and Applicant agreed that her personal testimony would be emotionally “far too hard.” 
She explained, “We have gone through the darkest of our times together and made it 
out to the light, but it still hurts to have to speak publicly about our dark times, and 
writing this letter is by far easier.” (AX B.) 
 
Applicant obtained outpatient psychotherapy from a licensed clinical psychologist 
(LCSW) three or four times a month from August 2015 to June 2017. He was diagnosed 
with Attention Deficit Hyperactivity Disorder (ADHD), and his treatment focused on 
managing his hyperactivity. (SOR Exhibit E at 1.) He has been treated two or three 
times a month by another LCSW from July 2017 to the present. The focus is still on 
managing his impulsivity. The second LCSW states that Applicant “has made 
considerable progress in his ability to regulate his impulses, and as long as he 
continues to maintain this progress, his prognosis is good.” (SOR Exhibit E at 2.) A 
psychological evaluation conducted in April 2018 by a third LCSW found Applicant free 
from major psychological difficulties and histrionic personality traits. This LCSW’s 
observations and comments included the following: 
 
The testing suggests that [Applicant] has periods of anxiety and that he 
may be somewhat intolerant of other’s shortcomings or failings. He reports 
feeling strong aggressive and sexual drives and he is highly sensitive to 
rejection. . . . He may feel slighted if he is not receiving what he wants 
from a relationship. . . .  
 
He has periods where he feels self-remorse and low self-esteem 
characterized by not feeling that he is “as good” as others. He may try to 
protect himself in relationships by detaching himself, which fits with his 
reported history of difficulty with emotional and physical intimacy. This also 
helps explain how he sought gratification through anonymous 
relationships that do not require emotions or commitment. These 
tendencies are not likely to impact on employment matters but affect his 
interpersonal relationships and his private life. These issues are also not 
inflexible and can be moderated, particularly since he is involved in 
counseling and aware of them. . . .  
 
Individuals with these personality tendencies may have some struggle with 
their closest relationships and intimacy but are inclined to excel 
professionally in their occupational setting where they are able to fulfil their 
affiliative needs and find positive reinforcement for their behavior. They 
are often found to be hard working, reliable, dedicated and highly 
productive individuals due to these factors. . . . 
 
[Applicant’s] focal behavioral lapses of the past appear to be anomalies 
based on unusual circumstances that are not likely to happen again and 
that do not represent his normal behavior. These issues are now well 
understood and have ceased. There is no indication that this illicit 
 
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behavior will ever reoccur, and he appears to be capable of holding a 
position of trust as he has successfully done for years prior. 
 
(AX C; AX D.) 
 
Applicant began neurofeedback treatment in June 2017 to help him control his 
impulsivity. (Tr. 73.) His neurofeedback counselor submitted the following comments: 
 
In my experience with [Applicant], he has consistently presented himself 
as a forthright, honest individual with an excellent work ethic and high 
personal integrity. He has a high level of self-awareness and personal 
insight and has been able to provide honest, comprehensive self-reports 
of functioning and reactions to training. . . . Neurofeedback has helped 
[Applicant] with increased self-awareness and control and maintenance 
of an appropriate level of psychophysiological arousal that maximizes 
attention, focus, working memory and executive functioning capabilities. 
 
(AX E.) 
 
Applicant testified that he did not make his lifestyle changes to enable him to 
receive a clearance; he made the changes because going through the adjudication 
process put him in touch with “how awful [he] was.” He testified: “Inside was awful, and I 
need to fix that. It was a catalyst, if you will, but no, I didn’t become a better person to 
get a clearance. I want to be a person who’s worthy of a clearance, with or without the 
clearance.” (Tr. 78.) He submitted a “Statement of Intent” agreeing to revocation of any 
security clearance if he engages in shoplifting or receives the services of prostitutes in 
the future. (AX A.) 
 
 A defense contractor who relied on Applicant as a subcontractor for many years 
testified that he regarded Applicant as a “valued partner,” who was very competent, 
meticulous, and dedicated. Applicant disclosed his sexual conduct and shoplifting to this 
defense contractor, who was surprised but would not hesitate to work with him again. 
(Tr. 22-28.) The defense contractor’s facility security officer was especially impressed 
with Applicant’s meticulous attention and aggressive responses to potential spillages 
from IT hardware. (SOR Exhibit H at 8; AX F.) A former co-worker regards Applicant as 
extremely security conscious, dedicated, and knowledgeable. (SOR Exhibit H at 3.) 
 
 Applicant’s 33-year-old stepson admires him for teaching him the value of hard 
work and the importance of family and friends. (SOR Exhibit H at 2.) His 25-year-old 
stepson remembers him as a loving and caring father-figure, extremely generous, 
talented, and a great leader. (SOR Exhibit H at 5.) 
 
 Applicant’s 29-year-old daughter describes him as extremely patriotic, honest, 
and hard-working. She admires him for teaching her the value of hard work, teamwork, 
honesty, and time management. (SOR Exhibit H at 4.) His 25-year-old daughter 
remembers how Applicant taught her about honesty and hard work. She describes him 
 
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as “an amazing father, friendly neighbor, caring friend, loving husband, and most 
importantly, a patriot.” (SOR Exhibit H at 6. 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865 § 2.  
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules 
of law. Instead, recognizing the complexities of human behavior, an administrative judge 
applies these guidelines in conjunction with an evaluation of the whole person. An 
administrative judge’s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. An administrative judge must consider all available and reliable 
information about the person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 
10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. 
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 15-
01253 at 3 (App. Bd. Apr.20, 2016).   
 
 
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 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531.  
 
Analysis 
 
Guideline D, Sexual Behavior 
 
 SOR ¶ 1.a alleges that, from approximately 2006 to approximately 2014, 
Applicant paid money for sexual gratification. The concern under this guideline is set out 
in AG 12:  
 
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. 
 
 Applicant’s admissions establish the following disqualifying conditions under this 
guideline: 
 
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 individual is unable to stop; and 
 
AG ¶ 13(c): sexual behavior that causes an individual to be vulnerable to 
coercion, exploitation, or duress. 
 
The following mitigating conditions are potentially applicable: 
 
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; 
 
 
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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. 
 
 AG ¶¶ 14(b) and 14(e) are established. Applicant’s sexual misbehavior and petty 
theft stopped more than four years ago. His debilitating and painful injury, followed by 
his wife’s termination of marital intimacy, were unusual circumstances that left him 
feeling angry and rejected. He now understands what contributed to his conduct and 
has obtained counseling to deal with it. The medical professionals who have assisted 
him believe that recurrence is unlikely. 
 
 AG ¶ 14(c) is not fully established. Applicant has disclosed his conduct to his 
wife, but not to his children and stepchildren. Thus, he remains vulnerable to coercion, 
exploitation, or duress. However, he found the courage to disclose his misconduct to his 
wife and a close business associate, and I am confident that he will muster the strength 
to disclose his misconduct to his children and stepchildren if necessary. 
 
 AG ¶ 14(d) is not established. Applicant visited the massage parlors alone, and 
his sexual activity was private and consensual, but it was not discreet. 
 
Guideline E, Personal Conduct 
 
 SOR ¶ 2.a alleges that Applicant engaged in shoplifting for about 35-40 years 
until 2014. SOR ¶ 2.b cross-alleges SOR ¶ 1.a. 
 The concern under this guideline 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. . . .” 
 Applicant’s admissions establish the following disqualifying conditions under this 
guideline: 
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 
 
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regulations, or other characteristics indicating that the individual may not 
properly safeguard classified or sensitive 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 indicating that 
the individual may not properly safeguard classified or sensitive 
information. This includes, but is not limited to, consideration of: . . . (2) 
any disruptive, violent, or other inappropriate behavior; [and] (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 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 . . . ; and 
 
AG ¶ 16(g); association with persons involved in criminal activity. 
 
 The following mitigating conditions are 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; 
 
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 contributed to 
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 activities was 
unwitting, 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. 
 
 AG ¶¶ 17(c) and 17(d) are established for the reasons set out in the above 
discussion of AG ¶¶ 14(b) and 14(e). AG ¶ 17(e) is not fully established for the reasons 
 
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set out in the above discussion of AG ¶ 14(c). AG ¶ 17(g) is established, because 
Applicant no longer visits massage parlors engaged in illegal prostitution. 
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an 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 and applying the adjudicative factors in AG ¶ 2(d).2  
 
 I have incorporated my comments under Guidelines D and E in my whole-person 
analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but 
some warrant additional comment. Applicant was candid, sincere, remorseful, and 
credible at the hearing. Before his injury and the disintegration of his marriage in 2006, 
he held a security clearance without incident. His reconciliation with his wife, her strong 
support, and his continuing treatment by medical professionals are major factors making 
recurrence unlikely. 
 
 After weighing the disqualifying and mitigating conditions under Guidelines D and 
E, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has mitigated the security concerns raised by his sexual behavior and 
personal conduct. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline D (Sexual Behavior):  FOR APPLICANT 
 
  Subparagraph 1.a:     For Applicant 
 
 Paragraph 2, Guideline E (Personal Conduct):  FOR APPLICANT 
 
  Subparagraphs 2.a and 2.b:   For Applicant 
 
                                                          
2 The factors are: (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.  
 
 
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Conclusion 
 
 I conclude that it is clearly consistent with the national security interests of the 
United States to continue Applicant’s eligibility for access to classified information. 
Clearance is granted. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge