DATE: April 21, 1998

--------------------

SSN: -----------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

CLAUDE R. HEINY

APPEARANCES

FOR GOVERNMENT

Michael Leonard, Department Counsel

FOR APPLICANT

Pro Se

STATEMENT OF THE CASE

The Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended by Change 3, issued a Statement of Reasons (SOR) dated December 11, 1997, to the Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied or revoked.

On January 9, 1998, the Applicant responded to the allegations set forth in the SOR and requested a hearing. The case was assigned to me on January 21, 1998. A notice of hearing was issued on February 11, 1998, and the case was heard on March 3, 1998. At the hearing six Government exhibits (Gov. Ex.) and five Applicant exhibits (App. Ex.) were admitted into evidence. Testimony was taken from the Applicant. A transcript of the hearing was received by this office on March 18, 1998.

FINDINGS OF FACT

After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following findings of fact:

The Applicant is a 40-year-old male transvestite (Tr. 45) who cross dresses⁽¹⁾ every day. He feels comfortable being a male, but enjoys wearing women's apparel. Cross dressing makes him feel he is a whole person. (App. Ex. B) He wears women's undergarments to work, under his business attire. He has never gone to work fully attired as a woman. Some nights, after work, he wears women's clothes for a couple of hours. Other nights he doesn't. (Tr. 43) Once a week he engages in cross dressing in public by dressing fully in women's attire, both under and outer garments, and attending church. Sometimes he has gone to the mall or to the grocery store with his wife while he was wearing women's casual attire. (Tr. 52) While cross dressing he is known as "Kathy." While dressed in male attire he uses his first name. At the hearing, he acknowledged he was wearing feminine undergarments under his suit. (Tr. 52) There was no evidence from the Applicant's outward appearance he was wearing female undergarments at the time.

The Applicant foresees no change in his behavior. He believes his frequency of wearing women's clothing will not increase or decrease. (Tr. 45) His cross dressing is known to his mother, wife, pastor, friends, family, co-workers, (App. Ex. D) and employer/supervisor. (Tr.33) The Applicant has been involved with the Boy Scouts in a two-day event once a year for the past two years. His involvement also includes attendance at some planning meetings for the event. (Tr. 36) He has not informed his superiors at the Boy Scouts about his behavior.

The Applicant began wearing feminine undergarments at age eight or nine. At age eleven, his mother discovered him dressed in her undergarments. At age 16-18, he began to purchase various articles of feminine undergarments. Once or twice a week he would wear the articles a few hours at night or on weekends. During his early twenties his cross dressing continued, and he frequently wore feminine undergarments under his clothes. In 1982 he began to purchase, make, and wear feminine outer garments and cosmetics.

The Applicant did not disclose his habit to his first wife before they got married. He was 20, she was 19. The marriage lasted from 1978 to 1983. After five years of marriage his wife no longer wanted the marriage to continue. (Tr. 47) He discussed his cross dressing up-front with his second wife. She was okay enough with it to get married but was never really comfortable with it. His second marriage lasted from 1984 to 1989. He cohabited with another woman from 1988 to 1993.

In June 1988, the Applicant was involved in a mock wedding ceremony⁽²⁾ at his church. In the ceremony he wore a wedding dress, and his female cohabitant dressed in a tuxedo. All the bridesmaids were males dressed in female attire. At the time of the ceremony both the Applicant and his co-habitant were married to other people. Later the Applicant and his co-habitant renewed their vows at another church. There was never a legal marriage between the Applicant and his cohabitant.

The Applicant told his current wife about his behavior early in their relationship, prior to their marriage in June 1996. His current wife is comfortable with his cross dressing activities and is fully supportive of him. (Tr. 47) If someone threatened to blackmail him, he would simply admit to his activities. He freely admits his activities to whose who question him about his cross dressing. The Applicant has never denied his habit. The Applicant has never been arrested for his behavior.

The Applicant spent 19 years (App. Ex. C) in the Army National Guard as a security policeman. While in the national guard, he informed his peers, but not his chain of command about his habit. Prior to annual training periods he would allow the hair on his arms and legs to grow back. The Applicant never tried to deceive the national guard about his behavior. On December 16, 1993, the Applicant underwent a psychiatric evaluation (Gov. Ex. 4) conducted by a US Government employed psychologist, and a diagnosis of transvestism with a poor prognosis was rendered. Although the psychiatrist found the Applicant's stability was questionable with respect to potential setup for blackmail, he also found the Applicant qualified for retention in the national guard.

On February 28, 1994, the Applicant was sent an "Intent to Revoke Security Clearance" letter. (Gov. Ex. 5) The reasons for revoking Applicant's clearance included financial matters, criminal and sexual misconduct, his cross dressing, falsification of a personnel security questionnaire and official personnel forms. The Applicant made a written rebuttal to the letter. (App. Ex. B) On June 15, 1994, a Revocation of Security Clearance letter was issued by the U.S. Army Central Personnel Security Clearance Facility. The Applicant never received the formal document revoking his clearance until he saw it during the Defense Security Service (DSS)⁽³⁾ interview in May 1997. In October 1994, the Applicant was processed out of the national guard at the end of this enlistment. He received an honorable discharge but was barred from reenlisting in the guard.

In February 1998, the Applicant was given a psychological assessment. (App. Ex. A). It was the voluntary action of the Applicant to seek a more current assessment. The Applicant was found to be a very bright individual with perfectionist tendencies, dependable and trustworthy, with the capacity for good judgment, within normal ethical limits, emotionally a stable person, with a great deal of self-confidence, no feeling of guilt or shame about his cross dressing, in control of his cross dressing behavior, and with no significant levels of psychopathology. The Applicant's psychological profile indicated, in the examiner's opinion, that the Applicant was not vulnerable to undue influence or coercion. There is no fear of disclosure nor a potential setup for blackmail. This opinion is opposite to the finding of the Army's psychiatric evaluation done four years earlier.

POLICIES

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 to the Directive sets forth adjudicative guidelines which must be carefully considered according to the pertinent criterion in making the overall common sense determination required. Each adjudicative decision must also include an assessment of the seriousness, recency, frequency and motivation for an applicant's conduct; the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the circumstances or consequences involved; the age of the applicant; the absence or presence of rehabilitation, the potential for coercion or duress, and the probability that the conduct will or will not recur in the future. See Directive 5220.6, Section F.3. and Enclosure 2. Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility or emotionally unstable behavior.

Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:

CRITERION D - SEXUAL BEHAVIOR

Sexual behavior is a security concern if it involves a criminal offense, indicates a personality or emotional disorder, subjects the individual to undue influence or coercion, or reflects lack of judgment or discretion.⁽⁴⁾