ISCR Case No. 19-02464

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 19-02464 ) Applicant for Security Clearance ) Appearances For Government: Brian Ferrell, Esq., Department Counsel For Applicant: Greg D. McCormack, Esq. 04/22/2021

FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guidelines D (Sexual Behavior) and J (Criminal Conduct). Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application on October 29, 2018. On March 10, 2020, the Defense Counterintelligence and Security Agency Consolidated Adjudications Facility (CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines D and J. The 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). Applicant answered the SOR in an undated document and requested a hearing before an administrative judge. Department Counsel was ready to proceed on September 29, 2020, and the case was assigned to me on October 22, 2020. On January 6, 2021,

the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for January 22, 2021. The hearing was postponed at Applicant’s request and rescheduled for February 8, 2021. I convened the hearing as rescheduled. Government Exhibits (GX) 1 through 6 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AX) A through D, which were admitted without objection. At Applicant’s request, I held the record open until February 19, 2021, to enable him to submit additional documentary evidence. He timely submitted AX E, which was admitted without objection. DOHA received the transcript (Tr.) on February 22, 2021.

The SOR alleges under Guideline D that in August 2017, Applicant was charged with public indecency and received five years’ probation (SOR ¶ 1.a); and that in August 2018, he was charged with 1st degree felony rape and 3rd degree gross sex imposition (SOR ¶ 1.b). The same conduct is cross-alleged under Guideline J. In Applicant’s answer to the SOR, he admitted all the allegations, with explanations. His admissions in his answer and at the hearing are incorporated in my findings of fact.

Applicant is a 38-year-old systems administrator employed by federal contractors since March 2006. He graduated from college with a bachelor’s degree in computer engineering in December 2005. He married in September 2008 and divorced in May 2018. He has an 11-year-old son and a 9-year-old daughter. He received a security clearance in March 2006, which was suspended in February 2019. He started working for another federal contractor in April 2019, but his continued employment is dependent on reinstatement of his security clearance. (Tr. 23.) In June 2016, Applicant’s wife accused him of inappropriately touching their children at night. The children routinely awakened during the night and crawled into their parents’ bed. Applicant’s wife claimed that she rolled over during the night to put her arm around Applicant when she saw their son in their bed with his pants pulled down, his hands near Applicant’s genitals, and both of them facing each other. She did not say or do anything except to roll over and go back to sleep. She claimed that a week later she saw their daughter in their bed with her pants pulled down. (Tr. 26-27.) His wife set up a camera in the bedroom to record Applicant’s activity during the night, but it revealed nothing. In July 2016, she took the children to a hospital for forensic testing, and a forensic interviewer questioned them, but the children did not describe any inappropriate touching. During the forensic interviews, the children described a family situation with much hugging, snuggling, and cuddling. The only complaint was from the son, who said that Applicant sometimes squeezed him too hard. (GX 5 at 17-27.) Applicant’s wife and their two children moved out of the house and stayed with her brother. She told Applicant that she would not return until he obtained treatment for his “sexual issues.” (Tr. 28.) Applicant’s wife scheduled a polygraph examination for him and told him that there would be “no fixing” of their marriage if he refused to take the polygraph.

On September 2, 2016, Applicant underwent the polygraph examination, which was administered by a private polygraph examiner hired by Applicant’s wife. During the examination, Applicant answered “No” to three questions: (1) Did you ever have any type of sexual contact with [your daughter]? (2) Other than what you told me, did you have any type of sexual contact with [your son]? and (3) Did you ever have your children touch your naked penis? The examiner found no deception indicated and opined that Applicant was being truthful in answering the three questions. (GX 2 at 27-28.) On September 9, 2016, the county children’s services office informed Applicant that the reported sexual abuse was unsubstantiated. (AX D(1).) Two certified police polygraph examiners concluded that the polygraph examination was invalid. The police examiners concluded that it was inappropriate for Applicant’s wife to be in the room while the examination was conducted, the questions were not sufficiently specific, the terminology (“sexual contact”) was too broad, and three relevant questions were asked during the examination instead of the accepted practice of asking only one relevant question. (GX 3 at 13.) As a result of the accusations by Applicant’s wife, they separated for a few months and attended a few sessions of marital counseling. In October 2016, Applicant’s wife filed for divorce, on the ground that Applicant had been guilty of gross neglect of duty and extreme cruelty and that the parties were incompatible. (AX E at 1.) In November 2016, Applicant’s wife sought temporary custody of their children and asked that Applicant’s parenting time with the children be supervised. Her request was granted. (AX E at 4-7, 13-14.) Later in November 2016, Applicant and his wife were ordered to under psychological evaluation “for purposes of assisting the Court in determining the allocation of parental rights and responsibilities.” (AX E at 11-12.) Applicant admitted to the psychologist that he sometimes experienced spontaneous erections without thinking about sex, and that on one occasion his wife had observed him cuddling their son in bed while having an erection. He believed that his wife concluded from this event that he had a sexual disorder. (GX D(3) at 4.) The psychologist concluded that Applicant “had no apparent and diagnosable disorder, but showed symptoms of dependent personality traits, with obsessive- compulsive and avoidant features”; that he “presented a personal history and mental health profile that made [his wife’s] allegations against him at least circumstantially and situationally feasible”; and that he displayed a more passive, laissez faire interaction pattern with the children, as well as engaged in frequent age-inappropriate coddling, cuddling, and infantilizing interchanges with them.” The psychologist concluded that Applicant’s wife “showed symptoms of a situational and transient adjustment disorder with anxiety and depression, as well as evidence of obsessive-compulsive personality traits, with narcissistic (manifested as low self-esteem) and histrionic (i.e., overly dramatic and emotional tendencies features”; that “there was no definitive psychological data clearly suggestive or confirmatory of [her]

Before the charges were presented to a grand jury, Applicant received a letter from the county children’s services office, recommending that he have no contact with his children until he completed a sex-offender assessment. In September 2017, Applicant underwent an evaluation of his psychological and sexual health, conducted by a clinical psychologist and sex offender specialist. The psychologist concluded that Applicant is not a pedophile. (GX 2 at 30-34.)

allegations against [Applicant]”; that she “displayed candor and openness, consistent with a personal history and mental health profile that make her allegations credible”; and that she “has historically been the children’s primary caregiver, is and has been more accessible to them, and displayed more age-appropriate nurturing.” Based on her conclusions, the psychologist recommended that Applicant’s wife retain residential and custodial parent status of their two children. The psychologist also recommended that Applicant— [S]ubmit to and participate in mental health counseling or therapy to more definitively rule out the likelihood of his impropriety toward the children, as well as to work toward the normalization and re-unification of his parental relationship with them, to minimize any cloud of ongoing suspicion, and to preclude the likelihood of ongoing legal charges and counter-charges. (AX D(3) at 26.) On November 10, 2016, Applicant’s wife enrolled the two children in a counseling program and informed a counselor that she had observed Applicant in bed with their son with their son’s hands in Applicant’s pants. In January 2017, while the children were in play therapy, their son drew pictures of trees that appeared to have penises, and their daughter drew picture of a rainbow with the family inside and her on the outside. In February 2017, Applicant’s wife told the counselor that the children previously had episodes of bed-wetting and had reverted to it. On April 2017, Applicant’s wife asked for an “emergency visit,” and told the counselor that their daughter had reported that Applicant had touched her vagina. (GX 2 at 31; AX D(4). Applicant’s daughter was interviewed by a psychologist, who reported that his daughter said, “my mommy wanted me to tell you something.” (GX 2 at 11.) His daughter told a forensic interviewer that Applicant pulled down her pants and underwear and pressed on her vagina with one finger to “take out the dirty stuff.” (GX 5 at 11.) On July 3, 2017, the county children’s services office notified Applicant that the allegation of sexual abuse was “indicated.” (AX D(5).) Appellant was charged with felony rape. In June 2018, pursuant to a plea agreement, Applicant pleaded guilty to public indecency by masturbating in the presence of others. (GX 4 at 5.) The factual predicate for his guilty plea is not clearly stated in the court record, but Applicant believed that he was pleading guilty to masturbating in the presence of his children. (Tr. 73.) However, the bill of information on which the charge was based alleged that his masturbation was “likely

to be viewed and affront others who were in the person’s physical proximity and who were not members of the offender’s family.” (GX 4 at 5; Tr. 74.) In July 2018, before Applicant was sentenced, his son told a counselor that, during some time in 2015 or 2016, Applicant had touched his anus and penis. The county children’s services office arranged for a forensic interview, which occurred on July 26, 2018. According to the forensic interviewer, Applicant’s son, who was then eight years old, said that Applicant touched his penis during the night, that Applicant was wearing blue latex gloves, and that he felt a substance squirting on his back that felt like mayonnaise or sunscreen. His son also said that Applicant inserted a finger into his anus and moved it around. (GX 5 at 11.) In July 2018, Applicant was sentenced for the public indecency to which he had pleaded guilty. He was sentenced to incarceration for 60 days, to be served on weekends, and supervised probation for five years. He was prohibited from having any contact with his children for five years. (GX 4 at 15.) In August 2018, Applicant was charged with rape, a felony of the first degree, and gross sexual imposition, a felony of the third degree. These charges were based on his son’s statements to a psychiatrist and a forensic interview in July 2018. (GX 3 at 5-6.) In October 2018, Applicant’s wife was persuaded by a police officer to ask Applicant to take a second polygraph examination. It would be a stipulated examination, with an agreement that the charges would be dismissed if he passed the examination and that he would agree to admissibility of the exam results if he failed. After consulting with his attorney, Applicant declined to take a stipulated polygraph examination. His attorney advised against a second polygraph because he already had favorable results from the first examination and it would be inadvisable to risk an unfavorable result from a second examination. In April 2019, the prosecutor concluded that there was insufficient evidence to prove the offenses involving Applicant’s son beyond a reasonable doubt. (GX 5 at 15-16.) The charges were dismissed without prejudice. (GX 4 at 26.) Applicant and his wife were divorced in May 2018, and his ex-wife remarried in May 2019. The children live with his ex-wife. (Tr. 47.) Applicant’s senior director of operations for his former employer submitted a letter stating that his performance was excellent and he was well-regarded by his project manager, the project staff, and their customer. The sole reason for his termination was the suspension of his security clearance. (GX 2 at 35.) Applicant’s most recent performance review reflects solid performance, frequently exceeding expectations. He has maintained a positive attitude in spite of the uncertainty about his security clearance. (AX B.)

Four long-time friends who have known Applicant since high school submitted letters attesting to his kind and generous character, devotion to his family, and hard work. They strongly believe that the accusations against him were false. (GX 2 at 36-40.) One of these friends is a cybersecurity analyst for a federal law enforcement agency. She submitted a statement at the hearing stating: I do not question [Applicant’s] character in any respect, but certainly question the validity of the claims made against him. I know [Applicant] was in a horrible position facing false charges related to his child and upon advice of his attorney, he chose to accept the plea agreement that was offered. I am confident that [Applicant] at no time committed any inappropriate act with his children. (AX C(2).) A friend who works in federal law enforcement and has known Applicant for 18 years submitted a letter describing him as candid, honest, and genuine. This friend is familiar with the allegations in the SOR and believes Applicant’s denial of the allegations of sexual abuse. He believes that Applicant’s guilty plea to a misdemeanor was ill-advised and a demonstration of the prosecution’s weak case. He ended his letter by saying, “[Applicant] is a good man, and [a] trustworthy man, who was manipulated by his former wife.” (AX C(1).)

Numerous other friends, co-workers, employers, and supervisors, who have known Applicant for many years, submitted letters attesting to his good character and opining that he has been the victim of false charges and a difficult decision to plead guilty to a misdemeanor to avoid risk of a felony conviction and a long prison term. (AX C(3)- AX C(8).)

Applicant is currently in a serious relationship with a woman who is a registered nurse and mother of two daughters. She attended the hearing. They first began dating in February 2017, and Applicant disclosed the accusations against him after two months of dating. Applicant spends much time with her daughters, and “[t]hey love him dearly!” She is familiar with the allegations against him. She believes that Applicant is a victim of false allegations and bad legal advice. (AX C(9).)

“[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).

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.

Polygraph Evidence In response to DOHA interrogatories, Applicant submitted evidence that he was questioned about the allegations in the SOR by a polygraph examiner, that he denied the allegations, and the polygraph examiner found no deception. Polygraph examinations are widely used within the Government and serve a useful function when combined with other information to form an opinion as to the credibility of an applicant. However, in security eligibility cases, they are not a substitute for the evaluation and judgment of the administrative judge in light of the totality of the evidence. There is no per se rule against the introduction of private polygraph examination results by applicants in DOHA hearings. However, when polygraph evidence is tendered by an applicant, an administrative judge is required to consider whether the applicant has demonstrated its accuracy, reliability, and fairness. ISCR Case No. 96-0785 (App. Bd. Sep. 3, 1998). Private polygraph examinations are generally a product prepared by, sold to, and paid for by individuals and their counsel. The private examiner is in the business of profiting from the exam and presumably anticipates future sales. Therefore, the private examiner’s motivations may render the exam’s results inherently, if unwittingly, biased in favor of the paying client. In this case, Applicant’s wife hired the polygraph examiner, and Applicant agreed to the examination in response to an ultimatum from his wife. However, the results were not consistent with his wife’s suspicions. The record contains no evidence of the qualifications or experience of the private polygraph examiner. Two certified police polygraph examiners concluded that the results of the polygraph examiner were invalid because of Applicant’s wife was in the room while the polygraph examination was conducted and the terminology and arrangement of the questions was defective. However, Department Counsel did not object to the polygraph evidence, thereby waiving any objection. Notwithstanding the lack of objection by Department Counsel, I have given the results of the polygraph examination limited weight because of the circumstances under which it was conducted, the possible bias of a private examiner, and the deficiencies pointed out by the police polygraph experts. Guideline D, Sexual Behavior In Applicant’s answer to the SOR, he admitted that he was convicted of public indecency (SOR ¶ 1.a) and that he was charged with felony rape and felony gross sex imposition (SOR ¶ 1.b), but he contended during the hearing that he was innocent of both charges. Applicant was represented by an attorney at his trial, and he pleaded guilty to the offense alleged in SOR ¶ 1.a. Although his guilty plea was a product of a plea agreement, it is sufficient to establish SOR ¶ 1.a.

The evidence concerning SOR ¶ 1.b is convoluted and conflicting, but Applicant never went to trial on this allegation, because the charge was dismissed as part of a plea agreement. However, the forensic interviews of Applicant’s son in July 2018 provided substantial evidence of the offense alleged in SOR ¶ 1.b 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. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.

Applicant’s admissions, the evidence submitted at the hearing, and Applicant’s plea of guilty to public indecency are sufficient to 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): 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 . . . that reflects lack of discretion or judgment. 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; AG ¶ 14(c): the behavior no longer serves as a basis for coercion, exploitation, or duress; 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. None of the above mitigating conditions are fully established. The conduct at issue occurred between 2015 and 2017 and is not recent. However, it occurred several times and did not occur under unusual circumstances. Applicant’s conduct continues to provide a basis for coercion, exploitation, or duress. AG ¶ 14(e) is relevant because Applicant underwent a court-ordered psychological evaluation in September 2017, and the psychologist concluded that he is not a pedophile. However, the offense to which he pleaded guilty is not pedophilic conduct. Guideline J, Criminal Conduct The SOR cross-alleges the Guideline D allegations under this guideline. The concern under this guideline is set out in AG ¶ 30: “Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules, and regulations.” The evidence establishes the following disqualifying conditions under this guideline: AG ¶ 31(b): evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted; and AG ¶ 31(c): individual is currently on parole or probation. The following mitigating conditions are potentially relevant: AG ¶ 32(a): so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; AG ¶ 32(c): no reliable evidence to support that the individual committed the offense; and AG ¶ 32(d): there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. AG ¶ 32(a) is not fully established, for the reasons set out in the discussion of Guideline D.

AG ¶ 32(c) is not established. Although the prosecutor did not believe that was sufficient evidence to prove the allegation in SOR ¶ 1.b beyond a reasonable doubt, the evidence during the forensic interview of his son in July 2018 was substantial evidence sufficient to establish it for the purpose of a security-clearance adjudication. AG ¶ 32(d) is not fully established. Applicant has established a good employment record and substantial time has passed since the offenses. However, he has lived under close scrutiny since he was sentenced in July 2018, and he will be on probation until July 2023.

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. An 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. I have incorporated my comments under Guidelines D and J in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment. The evidence in this case was convoluted and conflicting. I have not discounted the possibility that Applicant’s wife may have coached the children to make accusations against Applicant, which were inconsistent with the comments of the children during the first forensic interview, and which did not support any allegations of sexual misconduct. I have also considered the testimonials of Applicant’s friends, coworkers, and supervisors, who believe that the conduct alleged is inconsistent with his character. I have considered the conclusion of a psychologist that Applicant is not a pedophile. The conflicts in the evidence give me pause, but Applicant has not convinced me that his plea of guilty to the conduct alleged in SOR ¶ 1.a was improvident, nor has he convinced me that the statements of his son during the July 2018 forensic interview were fabrications induced by his ex-wife. In close cases, I am obligated to follow the mandate of the Supreme Court in Egan, supra, and to resolve any doubt in favor of national security. “Once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption

against the grant or maintenance of a security clearance.” ISCR Case No. 09-01652 at 3 (App. Bd. Aug. 8, 2011), citing Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After weighing the disqualifying and mitigating conditions under Guidelines D and J, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his sexual behavior and criminal conduct.

I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline D (Sexual Behavior): AGAINST APPLICANT Subparagraphs 1.a and 1.b: Against Applicant Paragraph 2, Guideline J (Criminal Conduct): AGAINST APPLICANT Subparagraph 2.a: Against Applicant

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied. LeRoy F. Foreman Administrative Judge