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                           DEPARTMENT OF DEFENSE 
     DEFENSE OFFICE OF HEARINGS AND APPEALS     
           
             
 
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 18-00050 
  ) 
Applicant for Security Clearance ) 
 
Appearances 
 
For Government: Michelle Tilford, Esq., Department Counsel 
For Applicant: Ronald Sykstus, Esq.  
 
05/09/2019 
______________ 
 
 
Decision 
______________ 
 
 
BENSON, Pamela C., Administrative Judge: 
 
Applicant failed to mitigate the security concerns under Guideline D (Sexual 
Behavior), and Guideline E (Personal Conduct). Eligibility for access to classified 
information is denied.  
 
     Statement of the Case 
 
 On September 15, 2017, Applicant submitted a security clearance application 
(SCA). On March 5, 2018, the Department of Defense Consolidated Adjudications Facility 
(DOD CAF) issued Applicant a Statement of Reasons (SOR), detailing security concerns 
under Guideline D (Sexual Behavior), and Guideline E (Personal Conduct). The action 
was taken under Executive Order (EO) 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 June 8, 
2017.  
  
 
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 On March 29, 2018, Applicant responded to the SOR, and he requested a hearing 
before an administrative judge. On July 13, 2018, the Defense Office of Hearings and 
Appeals (DOHA) issued a notice of Hearing, setting the hearing for August 15, 2018. 
Applicant’s request for a continuance was granted. On October 29, 2018, the case was 
assigned to me. On December 31, 2018, the Defense Office of Hearings and Appeals 
(DOHA) issued a notice of Hearing, setting the hearing for January 17, 2019. 
 
 At the hearing, Department Counsel offered Government Exhibits (GE) 1 through 
3 into evidence, which I admitted without objection. Applicant’s counsel proffered 
Applicant Exhibit (AE) A through F, which I admitted without objection. Applicant testified, 
and he had four witnesses testify on his behalf during the hearing. I held the record open 
until February 17, 2019, in the event either party wanted to provide additional 
documentation. DOHA received the hearing transcript (Tr.) on January 28, 2019. No 
additional documents were submitted, and the record was closed on February 17, 2019. 
 
Findings of Fact 
 
Having thoroughly considered the evidence in the record, including Applicant's 
admissions, I make the following findings of fact: Applicant is 38 years old. He married in 
January 2006, and he has one daughter, age 10. He claimed to be nine credit hours short 
of a bachelor’s degree. Applicant was previously employed with a DOD contractor from 
May 2006 until December 2015, and he held a DOD security clearance during that period. 
He was unemployed from about December 2015 to March 2017, when he obtained his 
real estate license. Applicant was hired by another DOD contractor approximately one 
year ago. His employer is requesting Applicant obtain a DOD security clearance in order 
to perform specific employment duties on DOD classified projects. (Tr. 10, 17-21, 23, 35, 
GE 1)  
 
The SOR ¶ 1.a alleges that Applicant was arrested in about December 2015, and 
charged with pornography-possession of obscene materials depicting minors, a felony. 
In his response to the SOR, Applicant admitted he was arrested, but denied that the arrest 
had any merit to support it. The judge set his bond at $250,000. Applicant stayed in jail 
for approximately three weeks since he was unable to make bail, but he was later 
released after his father paid $21,000. Applicant and his family had just moved to state A 
five weeks earlier after he accepted a new job assignment from his former DOD contractor 
employer. (Tr. 25, 28, 30, 41-42, 48, 50, 63-65; GE 2) 
 
Applicant admitted to looking at pornography on his computer for about the last 25 
years, including the five weeks he had lived in state A. His frequency of viewing 
pornography varied, but he admitted to looking at it twice weekly in 2015. He denied ever 
intentionally looking for images of minors, or accidently looking at images of minors, 
during the entire time period he accessed pornography on the internet. It became a habit 
for him to view pornography, and he continued over the years because he believed that 
viewing pornography was not hurting anyone. (Tr. 25, 28-29, 30, 41-42, 48, 50, 63-65; 
GE 2)   
 
 
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Applicant stated at the hearing that on the day of his arrest, the police arrived early 
in the morning to his house with a search warrant. A police officer asked him if he knew 
why the police were in his home, and Applicant responded “No.” The police officer told 
him they were there looking for illegal pornography. The police confiscated his home 
computer, and other items, and placed Applicant under arrest. (Tr. 25-26)  
 
Applicant’s background interview occurred in April 2016, which was subsequently 
adopted by him on March 13, 2018, after he made several changes to the record. In the 
interrogatories, Applicant listed, “When they (police) first arrived, I did not know why they 
were there. A couple of minutes later, they told me they were there because of the 
obscene material.” He also wrote, “The charge related to pornography of teens under the 
age of 17 being on my computer, which would have been there from either downloading 
or viewing them on the internet. . . .  When the police came to my house, I admitted I had 
pornography on my computer. . . .” He told the investigator that his attorney informed him 
that the criminal charges filed against him were for child pornography. The district attorney 
(DA) cancelled a meeting with his attorneys, and due to the cancellation, his attorneys 
were unable to review any incriminating evidence the state had against him. Instead, the 
DA offered to dismiss the charges through a pretrial intervention program with specific 
conditions. The conditions included that he attend weekly meetings for a two-year period 
with the state’s sex offender group treatment program, and he pay approximately $1,250 
in court costs. Applicant accepted the DA’s offer and the charges against him were 
dismissed in February 2016. Applicant said that he neither admits, nor denies, his 
involvement which led to the criminal charges filed against him. (GE 2)  
 
At the hearing, Applicant specifically denied ever looking at child pornography. He 
was surprised about the criminal charges that were filed against him. He stated that the 
court dismissed his “case almost immediately.” He only accepted the DA’s offer because 
he wanted to get this ordeal over with as quickly as possible, and he did not have the 
financial resources to fight the charges. This incident has taught him a valuable lesson, 
as he has not looked at any pornography for the past three years. The arrest has been a 
source of embarrassment for him and his wife. (Tr. 28, 30-33, 39-40) 
 
After further questioning, Applicant admitted that the DA was not proposing to his 
attorneys that they would be “dismissing the charges outright” against him due to lack of 
evidence. He also agreed that if he had not met the conditions of the pre-trial intervention 
program, the DA could have refiled the criminal charges against him. He finished his 
sexual offender treatment program in a year-and-a-half, about six months early. He 
denied receiving a diagnosis from the treatment program, or that he was required by the 
state to register as a sex offender. (Tr. 43-44, 66)  
 
During the hearing, the following testimony was provided:  
Department Counsel: And you in fact noted that in your response to the 
interrogatories that the images (of minors 17 and younger) would have had to have 
been there (on his computer) from either downloading, or you said you were 
viewing them on the internet. 
  
 
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Applicant: That’s correct. That’s why I have no idea. I have no idea specifically 
what it was that they (police) were looking for because they never said so. And 
they never told my attorneys. And the first case that they (attorneys) were going to 
ask them (DA) about it, they (DA) decided – they (DA) declined to even offer up 
anything. 
 
Department Counsel: Well, they (DA) offered up the pretrial diversion program. 
 
Applicant: Yeah, I’m saying they (DA) offered up no evidence of any type of 
wrongdoing whatsoever. From the first time I was arrested, they told my attorney 
absolutely nothing.  
 
Department Counsel: Okay, as far as you know. 
 
Applicant: Yeah, as far as what my attorney has expressed to me. (Tr. 47) 
 
Applicant claimed the reason his previous DOD contractor employer stopped 
paying him in December 2015 was not related to his arrest, but due to him not working 
on the contract. He was told he was going to be continued as an employee while his 
current security clearance was placed on “hold.” He acknowledged this employer 
terminated his employment, but he was unsure of the date. His employer filed an incident 
report in the Joint Personnel Adjudication System since he was arrested while in 
possession of a DOD security clearance. Applicant admitted receiving a letter in the mail 
from his employer and then applying for unemployment benefits. He was initially denied 
unemployment benefits due to his gross negligence, “failing to report to work” for three 
consecutive days. Applicant appealed that decision, and he did receive unemployment 
benefits for a few months. (Tr. 33-34, 52-55, 58) 
 
SOR ¶ 2.a cross-referenced SOR ¶ 1.a under Guideline E (Personal Conduct). 
Applicant denied in his response to the SOR that he was involved in any conduct that 
questioned his judgment, candor, or willingness to comply with rules pertaining to his 
December 2015 arrest. He stated: “The court system found no grounds to pursue any 
case against me, . . .” Applicant failed to provide any court documentation to support his 
contention.  
 
SOR ¶ 2.b alleges that Applicant intentionally misrepresented the criminal charge 
from his December 2015 arrest when he disclosed he had been charged with “Possession 
of Obscene Materials,” rather than “Possession of Obscene Materials depicting a minor” 
on his September 2017 SCA. Applicant denied this allegation and stated he did not 
intentionally try to misrepresent this charge on his SCA. He listed the offense to put the 
Government on notice of his arrest, and he was not trying to conceal the nature of the 
criminal offense in any way. 
 
Applicant disclosed information about his December 2015 arrest to his current 
DOD contractor employer. He also showed his employer the SOR and interrogatories. 
Despite this adverse information, his current employer continues to sponsor him for a 
 
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DOD security clearance. The founder of the company appeared at the hearing, and stated 
that he was aware of Applicant’s security issues. He would not hesitate to place Applicant 
in a position of his company with full access to classified information. Three other 
witnesses gave favorable recommendations for Applicant as well. (Tr. 59, 70. 76-79) 
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the AG. In addition to brief introductory explanations 
for each guideline, the AG 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 AG ¶ 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 ¶ 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. Likewise, I have avoided drawing inferences grounded on mere 
speculation or conjecture. 
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Directive ¶ E3.1.15 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 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 
that an applicant may deliberately or inadvertently fail to 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 EO 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 
 
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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 for sexual behavior 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. … 
 
 The guideline notes several conditions that could raise security concerns. I have 
considered all of the disqualifying conditions under AG ¶ 13, and the following are 
potentially applicable: 
 
(a) sexual behavior of a criminal nature, whether or not the individual has 
been prosecuted; and 
 
(c) sexual behavior that causes an individual to be vulnerable to coercion, 
exploitation, or duress.  
 
 In December 2015, Applicant was arrested after the police executed a search 
warrant at his home, and he was charged with pornography possession of obscene 
material depicting minors, a felony. The charges were dismissed after he accepted a 
pretrial intervention program with conditions. The conditions included that he attend 
weekly meetings for a two-year period with the state’s sex offender group treatment 
program, and he pay approximately $1,250 in court costs. The charges were not 
dismissed for lack of evidence, which raises questions about his judgment and potential 
vulnerability to coercion, exploitation, and duress. If Applicant had not fulfilled the pretrial 
intervention program conditions, the DA could have refiled the charges and continued 
with prosecution of the case against him. The above disqualifying conditions apply. 
 
 The guideline also includes conditions that could mitigate security concerns arising 
from sexual behavior. AG ¶ 14 provides the following possible mitigating conditions: 
 
(a) the behavior occurred prior to or during adolescence and there is no 
evidence of subsequent conduct of similar nature; 
 
 
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(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;  
 
(c) the behavior no longer serves as a basis for coercion, exploitation, or 
duress;  
  
(d) the sexual behavior is strictly private, consensual, and discreet; and 
 
(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.  
  
 Applicant has continued to deny that the material confiscated by the police involved 
child pornography, despite the fact he was arrested after the police executed a search 
warrant at his home. He stated multiple times that the DA cancelled a meeting with his 
attorney. The purpose of this meeting was to show Applicant’s attorney the incriminating 
evidence the DA had against him. Applicant alluded that the reason the DA offered to 
dismiss the charges against him was due to the fact that the DA did not have any evidence 
of child pornography. The established facts of record in the Government’s exhibits do 
tend, however, to bring into question Applicant’s judgment and current reliability. 
Applicant has completed a year-and-a-half of sexual offender treatment, but he does not 
admit to viewing child pornography, to include an accidental image, over the span of 
approximately 25 years he has viewed pornography. I find his assertions unpersuasive. 
Since he has revealed the events to his wife and employer, ¶ 14(c) applies, but is, in itself, 
insufficient for a finding in his favor. I find ¶¶ 14(a), (b), (d), and (e) do not apply. 
 
Guideline E: Personal Conduct 
 
 AG ¶ 15 expresses the security concern for 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 or sensitive information. Of special interest is any failure to 
cooperate or provide truthful and candid answers during national security 
investigative or adjudicative processes. The following will normally result in 
an unfavorable national security eligibility determination, security clearance 
action, or cancellation of further processing for national security eligibility.  
 
 AG ¶ 16 describes conditions that could raise a security concern and be 
disqualifying. The following are potentially applicable under the established facts in this 
case: 
 
 
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(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; and  
 
(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. 
 
 Applicant’s sexual behavior (SOR ¶ 1.a) was addressed under that specific 
guideline, and also cross-alleged (SOR ¶ 2.a) under the personal conduct guideline. I 
have previously addressed the issue under Guideline D. Disqualifying condition ¶ 16 
(e)(1) applies in this case. 
 
 SOR ¶ 2.b alleges that Applicant intentionally misrepresented the criminal charge 
he listed on his 2017 SCA. There is insufficient evidence in the record to show that 
Applicant intentionally misrepresented or concealed the nature of his criminal charge 
when he disclosed his arrest on the 2017 SCA. Disqualifying condition ¶ 16(a) does not 
apply. 
 
 The guideline also includes conditions that could mitigate security concerns arising 
from personal conduct. The following mitigating conditions under AG ¶ 17 are potentially 
applicable: 
 
(c) the offense is so minor, or so much time has passed, or the behavior is 
so infrequent, 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 contributed to 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; and  
 
(f) the information was unsubstantiated or from a source of questionable 
reliability. 
 
 
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 Applicant has consistently denied that he viewed or possessed child pornography 
at any time. There is no evidence in the record to support his contention that the court 
system did not have any grounds to pursue criminal charges against him. He admitted 
during the hearing that the DA did not dismiss “outright” the charges due to lack of 
evidence. Applicant also acknowledged that the DA could refile the charges against him 
if he did not complete the conditions outlined in his pretrial intervention program. His 
continued claim of innocence without supporting documentation is worrisome. To his 
credit, Applicant completed a year-and-a-half of treatment and claimed that he has not 
viewed pornography for the last three years. He also told his wife and current employer 
about the circumstances which resulted in his arrest. Mitigating condition ¶ 17(e) does 
have some application, but it is not enough for a favorable finding. His personal conduct 
casts doubt on his reliability, trustworthiness, and overall good judgment. Mitigating 
conditions ¶¶ 17(c), (d), and (f) do not apply. 
 
      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. 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. Applicant provided several favorable character 
testimonials, to include support from his current employer, friends and associates. He 
admitted being arrested, but denied he ever viewed child pornography. Applicant 
successfully completed the conditions of his pretrial intervention program, and the 
criminal charges against him were dismissed. Unfortunately, his favorable character 
evidence and his completion of a pretrial intervention program is not enough to absolve 
the security concerns in this case.  
 
 Applicant averred the DA did not possess any evidence of child pornography 
against him, which was the reason he was offered the pretrial diversion program. He has 
viewed pornography for approximately 25 years, but denied that he has ever viewed an 
 
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image of a minor, even by accident, over that entire period of time. I find his assertions 
unpersuasive and unsubstantiated. Because protection of the national interest is the 
principle focus of these adjudications, any unresolved doubts must be resolved against 
the granting of access to classified information.   
 
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 
 
  Subparagraph 1.a:    Against Applicant 
 
 Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 2.a:    Against Applicant 
 
  Subparagraph 2.b:    For Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national security to grant Applicant’s eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
                 
               
 
 
Pamela C. Benson 
Administrative Judge