ISCR Case No. 20-03231

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 20-03231 ) Applicant for Security Clearance ) Appearances For Government: Erin P. Thompson, Esq., Department Counsel For Applicant: Pro se August 22, 2022

CEFOLA, Richard A., Administrative Judge: Statement of the Case Applicant submitted a security clearance application (SCA) on September 27, 2019. (Item 3.) On December 7, 2021, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines J, D and E. (Item 1.) The DOD CAF acted 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) implemented by the DOD on June 8, 2017. Applicant answered (Answer) the SOR soon thereafter (Item 2), and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on February 24, 2022. A complete copy of the file of relevant material (FORM) was sent to Applicant, including documents identified as Items 1 through 5. He was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on March 4, 2022, and did not respond. Items 1 through 5 are admitted into evidence. The case was assigned to me on May 18, 2022.

Applicant, age 26, is unmarried and has no children. (Item 3 at pages 7, 22–23.) Guideline J: Criminal Conduct, Guideline D: Sexual Behavior & Guideline E: Personal Conduct 1.a., 2.a. and 3.b. Applicant admits that he was arrested in July of 2016, and subsequently pled guilty to the misdemeanor offense of Indecent Exposure. As part of his sentence, he was required to register as a sex offender. (Item 5.) 2.a. It is alleged that Applicant failed to register as a sex offender. As noted by Department Counsel in the FORM, this is incorrect as Applicant did so register. (FORM at page 2.) Applicant registered in June of 2017, and re-registered in April of 2020 due to an “Address Change.” (Answer at pages 3–9.)

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 (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire process is a conscientious scrutiny of applicable guidelines in the context 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, “Any 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. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14 requires the Government to present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.15 states, “The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 national security eligibility. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified or sensitive information. Finally, as emphasized in Section 7 of EO 10865, “Any determination under this order adverse to an applicant shall be a determination 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.)

Guideline J: Criminal Conduct AG ¶ 30 sets forth the security concerns pertaining to criminal conduct: 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. AG ¶ 31 describes two conditions that could raise a security concern and may be disqualifying in this case: (a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness; and

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted. Applicant was convicted of indecent exposure in June of 2017, for a misdemeanor offense that occurred about July of 2016. The evidence establishes the above two disqualifying conditions. AG ¶ 32 provides two conditions that could mitigate the above security concerns raised in this case: (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; and

(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. Sufficient time has passed since Applicant’s misdemeanor behavior, which occurred more than six years ago. The evidence does establish mitigation under each of the above conditions. Criminal Conduct is found for Applicant. Guideline D: Sexual Behavior The security concern relating to the guideline 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. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual. The guideline notes several conditions that could raise security concerns under AG ¶ 13. Three are potentially applicable in this case: (a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted; (c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress; and (d) sexual behavior of a public nature or that reflects lack of discretion or judgment. Applicant indecently exposed himself in 2016. The evidence is sufficient to raise these disqualifying conditions. AG ¶ 14 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 14 including: (a) the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature;

(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; and (c) the behavior no longer serves as a basis for coercion, exploitation, or duress. Applicant’s conduct occurred when he was 20 years old, more than six years ago, and there has been no reoccurrence of such misconduct. He is registered as a sex offender; and as such, is not susceptible to coercion, exploitation, or duress, as his sexual offense is of public record. Sexual Behavior is found for Applicant. Guideline E: Personal Conduct 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. Based on Applicant’s sexual misconduct, the following disqualifying condition applies under 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.

It is specifically alleged that Applicant failed to register as a sex offender. Therefore, AG ¶ 16(e) may be established. The personal conduct security concerns raised in the SOR may be mitigated by any of the following potentially applicable factors in AG ¶ 17: (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. Applicant is registered as a sex offender. He has provided sufficient information in this record to demonstrate that he has met his burden of proof for his alleged personal conduct. Personal Conduct is found for Applicant.

Under AG ¶ 2(c), the ultimate determination of whether the granting or continuing of national security eligibility is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the applicable guidelines, each of which is to be evaluated in the context of the whole person. 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 J, D and E in my whole-person analysis, and I have considered the factors in AG ¶ 2(d). After weighing the disqualifying and mitigating conditions under Guidelines J, D and E, and evaluating all the evidence in the context of the whole person, I conclude that Applicant mitigated the security concerns raised by his 2016 indecent exposure. Accordingly, Applicant has carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

I make the following formal findings on the allegations in the SOR: Paragraph 1 Guideline J (Criminal Conduct): FOR APPLICANT Subparagraph 1.a: For Applicant Paragraph 2 Guideline D (Sexual Behavior): FOR APPLICANT Subparagraph 2.a: For Applicant Paragraph 3 Guideline E (Personal Conduct): FOR APPLICANT Subparagraphs 3.a. and b: For Applicant

I conclude that it is clearly consistent with the national interest to grant or continue Applicant’s eligibility for access to classified information. Clearance is granted. Richard A. Cefola Administrative Judge