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   DEPARTMENT OF DEFENSE 
     DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of:  ) 
 ) 
 ) ISCR Case No. 18-01638 
 ) 
Applicant for Security Clearance  ) 
Appearances 
For Government: Daniel F. Crowley, Esq., Department Counsel 
For Applicant: Pro se 
______________ 
Decision 
______________ 
Curry, Marc E., Administrative Judge: 
Applicant’s use of his work computer to solicit sex, and his subsequent failure to 
disclose this episode on his security clearance application as the reason for his subsequent 
employment termination, generate personal conduct security concerns that he failed to 
mitigate. Clearance is denied. 
Statement of the Case 
On August 22, 2018, the Department of Defense Consolidated Adjudications Facility 
(DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security 
concerns under Guideline E, personal conduct, explaining why it was unable to find it 
clearly consistent with the national interest to grant security clearance eligibility. The DOD 
CAF took the action under Executive Order (EO) 10865, Safeguarding Classified 
Information within Industry (February 20, 1960), as amended; and DOD Directive 5220.6, 
Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as 
amended (Directive) and the National Security Adjudicative Guidelines (AG), effective June 
8, 2017. 
04/11/2019
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On September 17, 2018, Applicant answered the SOR, admitting the allegations and 
requesting a hearing, whereupon the case was assigned to me on January 16, 2019. On 
February 11, 2019, the Defense Office of Hearings and Appeals issued a notice of hearing, 
scheduling Applicant’s case for March 14, 2019. The hearing was held as scheduled. I 
received two Government exhibits (GE 1 and GE 2) and considered Applicant’s testimony. 
I also incorporated a copy of the discovery letter that Department Counsel mailed to 
Applicant (Hearing Exhibit I). The transcript (Tr.) was received on March 26, 2019. 
 
Findings of Fact 
 
 Applicant is a 58-year-old man who has been married for 23 years. He was married 
previously from 1983 to 1986. The marriage ended in divorce. For the past three years, he 
has been working for a telecommunications company, as a network systems manager. (Tr. 
13) 
 
 Between January and February of 2015, Applicant used his personal e-mail 
account, which he accessed through his work computer, to solicit sexual acts via Craigslist. 
On one occasion, Applicant attached to his solicitation an electronically-transmitted photo 
of himself that he described as sexually explicit. In May 2015, Applicant’s employer 
discovered these illicit online communications. Shortly thereafter, he was terminated. 
 
 Applicant completed a security clearance application in October 2015, when he 
applied for his current job. He admitted that he was terminated, but stated that he was 
terminated for buying and selling things on eBay and Craigslist while at work, rather than 
for soliciting sex online while at work. 
 
 Applicant characterized himself as “a stupid person at the time” he misused the work 
computer, and testified that such behavior will never recur. (Tr. 27) He characterized his 
relationship with his wife as an open one, in which they have both had affairs over the 
years. He testified that his wife is aware that he occasionally uses the internet to arrange 
sexual encounters with others. (Tr. 21) She neither testified, nor provided an affidavit. 
 
Policies 
 
The U.S. Supreme Court has recognized the substantial discretion the Executive 
Branch has in regulating access to information pertaining to national security,  emphasizing 
that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 
U.S. 518, 528 (1988). 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 required to be considered 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 overall adjudicative goal is a fair, impartial, and 
commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious 
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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 ¶ 2(b) 
requires that “[a]ny doubt concerning personnel being considered for national security 
eligibility 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 evidence 
contained in the record. Under Directive ¶ E3.1.14, the Government must present evidence 
to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the 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 applicant 
has the ultimate burden of persuasion to obtain 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 
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. 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). 
 
Under the whole-person concept, the administrative judge must consider the totality 
of an applicant’s conduct and all relevant circumstances in light of the nine adjudicative 
process factors in AG ¶ 2(d).1  
Analysis 
 
Guideline E: Personal Conduct 
 
 Under this guideline, “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 
                                                 
1 The factors under AG ¶ 2(d) are as follows: 
 
(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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information.” (AG ¶ 15) Applicant’s misuse of his work computer triggers the application of 
AG ¶ 16(e), “personal conduct . . . that creates a vulnerability to exploitation, manipulation, 
or duress by a foreign intelligence entity or other individual or group.” His subsequent 
falsification of his e-QIP triggers the application of AG ¶ 16(a), “deliberate omission, 
concealment, or falsification of relevant facts from any personnel security questionnaire, 
personal history statement, or similar form used to conduct investigations, determine 
employment qualifications, award benefits or status, determine national security eligibility 
or trustworthiness, or award fiduciary responsibilities.” 
 
 Applicant’s misuse of his work computer occurred four years ago. However, he 
provided no evidence of anything that he has done to prevent a recurrence. Moreover, his 
testimony that his wife knows about his online sexual solicitations has little probative value 
absent her testimony. Lastly, Applicant’s failure to disclose this episode as the cause of his 
job termination, when he completed his 2015 e-QIP, clearly demonstrates that he remains 
vulnerable to coercion. Under these circumstances, none of the mitigating conditions apply. 
Applicant has failed to mitigate the personal conduct security concerns.  
 
Whole-Person Concept 
 
 I considered the whole-person factors in my analysis of the relevant disqualifying 
and mitigating conditions and they do not warrant a favorable conclusion. 
 
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 E:    AGAINST APPLICANT 
 
Subparagraphs 1.a – 1.c:   Against Applicant 
 
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the interests of national security to grant Applicant eligibility for a 
security clearance. Eligibility for access to classified information is denied. 
 
 
_____________________ 
Marc E. Curry 
 Administrative Judge