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ISCR Case 06-19522.h1 — CASE

ISCR Case 06-19522.h1denied

Case Headnote

ISCR Case No. 06-19522.h1

deniedJan 31, 2008· Hon. Mark W. Harvey· hearing

Summary

A 58-year-old male applicant was denied a security clearance under Guidelines D (Sexual Behavior) and E (Personal Conduct) due to a history of soliciting prostitutes and engaging in public sexual acts. The Statement of Reasons specifically alleged that the applicant engaged in sexual behavior of a criminal nature, including solicitation of prostitution and public sexual acts, which raised concerns about his reliability, trustworthiness, and good judgment.

The denial was based on several factors. The applicant admitted to soliciting prostitutes and engaging in public sexual acts, behaviors that are criminal under Texas law. This conduct was determined to reflect a lack of discretion and judgment, thereby raising security concerns.

Furthermore, the applicant's admissions and his failure to disclose this conduct to family and friends indicated a potential vulnerability to coercion. The judge concluded that the applicant failed to mitigate these concerns, leading to the denial of his security clearance.

Why the Applicant Was Denied

Applicant admitted to soliciting prostitutes and engaging in public sexual acts, which are criminal behaviors under Texas law.
The applicant's sexual behavior was deemed to reflect a lack of discretion and judgment, raising security concerns.
The applicant's admissions and failure to disclose his conduct to family and friends indicated potential vulnerability to coercion.

Conditions Referenced

Disqualifying

AG ¶ 13(a)appliedSexual Behavior of a Criminal Nature
AG ¶ 13(c)appliedVulnerability to Coercion, Exploitation, or Duress
AG ¶ 13(d)appliedSexual Behavior of a Public Nature
AG ¶ 16(e)(1)appliedConcealment of Information That Creates Vulnerability
AG ¶ 16(f)appliedViolation of Written Commitment

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedJan 11, 2007
Answer filedMar 5, 2007Applicant elected to proceed without a hearing.
Decision dateJan 31, 2008

Cite For

Failure to Mitigate Security Concerns Under Guidelines D and E
Vulnerability to Coercion Due to Personal Conduct
Lack of Discretion in Sexual Behavior as a Disqualifying Factor

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The Administrative Judge found that the Applicant's sexual behavior raised significant security concerns under Guideline D. The Applicant admitted to engaging in criminal sexual behavior, including solicitation of prostitution and public sexual acts, which continued over a lengthy period. The judge determined that the Applicant failed to demonstrate sufficient mitigation of these concerns, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
2.a	Applicant has engaged in sexual behavior of a criminal nature, including solicitation of prostitution and public sexual acts.	Against Applicant	Criminal Sexual Conduct	Admitted	(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 (d) sexual behavior of a public nature or that reflects lack of discretion or judgment	—	—
not recovered from source–not recovered from source	3 sub-charges — specific text not stated in this decision (rulings shown). (low confidence)	Mixed			—	—	—

Descriptive standardized rendering of a decided public case (Guideline D). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's personal conduct raised significant security concerns, particularly regarding his sexual behavior involving prostitution and public sexual acts. The applicant's conduct was deemed to cast doubt on his reliability and trustworthiness, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant has engaged in sexual behavior involving prostitution and public sexual acts, which raises security concerns regarding his reliability, trustworthiness, and good judgment.	Against Applicant	Questionable Judgment General	—	Admitted	(a) deliberate omission, concealment, or falsification on a security form (c) credible adverse information across areas supporting a whole-person concern (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) --------------------- ) ISCR Case No. 06-19522 SSN: ----------- ) ) Applicant for Security Clearance )

For Government: Nichole Noel, Esquire, Department Counsel For Applicant: Pro Se

January 31, 2008

__________

STATEMENT OF CASE

__________

HARVEY, Mark W., Administrative Judge:

Applicant failed to mitigate security concerns regarding Guidelines D (Sexual Behavior) and E (Personal Conduct). Clearance is denied.

Statement of the Case

On May 31, 2005, Applicant submitted a Security Clearance Application (SF 86).1 On January 11, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to him,2 pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended, modified and revised.3 The SOR alleges security concerns under Guidelines D (Sexual Behavior) and E (Personal Conduct). The SOR 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 him, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

In an answer dated March 5, 2007, and received at DOHA on March 7, 2007, Applicant responded to the SOR allegations, and elected to have his case decided on the written record in lieu of a hearing.4 A complete copy of the file of relevant material (FORM), dated November 2, 2007, was provided to him on November 16, 2007, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation.5 Submissions were due by December 16, 2007.6 Applicant did not provide any submissions. The case was assigned to me on January 28, 2008.

FINDINGS OF FACT

As to the SOR’s factual allegations, Applicant admitted most of the allegations in his response to the SOR. His response to the SOR also provided mitigating information concerning the SOR allegations. His admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence of record, I make the following findings of fact.

Applicant is 58 years old (Item 4). He married his current spouse in 1971 (Item 4). He has three grown children (Item 4).

On December 6, 2002, Applicant received a security letter concerning his solicitation of prostitutes and “sexual behavior of a public nature (masturbation in the office)” (Item 6 at 1). The 2002 security letter advised Applicant of the pertinent Guideline D (sexual behavior) and Guideline J (criminal conduct) disqualifying conditions (Id.). Applicant signed a letter acknowledging his “obligation to comply with U.S. Government policies regarding sexual behavior and criminal conduct” for continued access to classified information (Item 6 at 2). The 2002 security letter warned Applicant, “Any future adverse issues or incidents related to sexual behavior and criminal conduct will raise serious concerns regarding continued access and will be resolved through the revocation of your access” (Id. at 2).

Between 1977 and October 2006, Applicant used the services of prostitutes on average about six to eight times per year.7 He used prostitution services in various locations including their residences, hotels, his residence and a car (Id. at 2). The sexual acts procured include sodomy, masturbation and sexual intercourse (Id. at 2). Applicant paid the prostitutes on average about $200-$300 for each session (Id. at 2). He also paid prostitutes to engage in sexual acts with him in Washington D.C. on multiple occasions (Id. at 3).

In the last six to eight years, Applicant “engaged in sexual acts [oral sex and masturbation] with men he met at various adult bookstores and adult arcades” in Texas two or three times per year (Id. at 4-5).8 Applicant noted, “[t]he arcades either have locked private rooms and/or [locked] viewing booths” (Id. at 4). “There [were] also occasions at the arcades when the booths had viewing areas. People could watch you engage[] in sexual activity or masturbating, or [Applicant] could watch them.” (Id. at. 5).

Primarily in the early 1990’s and up to about 1999, Applicant masturbated in his employer’s restroom about once a month (Id. at 5). Prior to masturbating in the restroom, he insured no one was in the restroom (Id. at 5). Once or twice in the early 1990s, he masturbated while in an office at his employer’s place of business, but he insured the door was locked (Id. at. 6). In the 1980’s, he masturbated several times while driving on an interstate highway (Id. at 6). Other than adult bookstores and arcades, he did not masturbate in any other public areas (Id. at 6).

Applicant stated, “I fully understand that much of my actions described above are criminal in nature and a violation of the law” (Id. at 6). He described the sexual contacts as impersonal, and not involving feelings of love and/or commitment (Id. at 6). He was never arrested or charged with violating indecency laws or soliciting prostitution (Id. at 6). His payments for sexual acts did not result in financial problems (Id. at 6). He did not receive therapy or treatment for sexual behavior (Id. at 7).

Applicant promised in his DSS interview on December 11, 2006 that he would make every effort to refrain from sexual acts outside of marriage and with prostitutes while holding a security clearance (Id. at 7). However, he admitted that he could not “guarantee that [he] would not engage in sexual acts with prostitutes or other persons in the future” (Id. at 7). In his response to the SOR he stated, “Now that I know the specific behaviors that could raise a security concern and may be disqualifying, I will no longer engage in these behaviors while I hold a security clearance” (Item 2 at 1).

Although he disclosed the information about the above sexual behavior to U.S. government investigators in the past, he has not disclosed such information to his wife, children, his family, co-workers, supervisors, and neighbors (Id. at 7). He deliberately concealed the public sexual behavior and sexual behavior with prostitutes from friends and family because he knew it would hurt them (Id. at 7). He said he was embarrassed and ashamed of his conduct, but emphasized he would not allow himself to be blackmailed or coerced to compromise classified information to avoid disclosure of this information (Id. at 7).

Applicant would report any attempts to coerce him to appropriate security officials (Id. at 7). He has never compromised sensitive or classified information (Id. at 8).

The majority of the offenses occurred in Texas, and as such violate two criminal statutes: Texas Penal Code (TPC) § 21.07 prohibiting “public lewdness”9 and TPC § 43.02 prohibiting solicitation of sexual acts in return for a fee.10

POLICIES

When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 over-arching adjudicative goal is a fair, impartial and common sense 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 access to classified information will be resolved in favor of 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.

In the decision-making process, the Government has the initial burden of establishing controverted facts alleged in the SOR by “substantial evidence,”11 demonstrating, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant’s access to classified information. Once the Government has produced substantial evidence of a disqualifying condition, the burden shifts to Applicant to produce evidence “to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and [applicant] has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15. The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).12

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 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 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.” Executive Order 12968 (Aug. 2, 1995), Subsections 3.1(c) and 3.1(d) state:

(c) The United States Government does not discriminate on the basis of . . . sexual orientation in granting access to classified information.

(d) In determining eligibility for access under this order, agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No inference concerning the standards in this section may be raised solely on the basis of the sexual orientation of the employee.

ANALYSIS

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the following with respect to the allegations set forth in the SOR:

Guideline D, Sexual Behavior

AG ¶ 12 expresses the security concern:

Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.

AG ¶ 13 describes four conditions that could raise a security concern and may be disqualifying:

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted;

(b) a pattern of compulsive, self-destructive, or high risk sexual behavior that the person is unable to stop or that may be symptomatic of a personality disorder;

(d) sexual behavior of a public nature and/or that reflects lack of discretion or judgment.

AG ¶ 13(b) does not apply because there is no evidence that Applicant is unable to stop his public sexual behavior or his sexual behavior involving solicitation of prostitutes for sexual activity. AG ¶¶ 13(a), 13(c) and 13(d) all apply. His sexual behavior is criminal in that it violates Texas Penal Code §§ 21.07 and 43.02. Applicant is vulnerable to coercion, exploitation or duress because he does not want the information about his sexual misbehavior with prostitutes and in public to become known to his family, friends, neighbors, co-workers and supervisors. His sexual misbehavior in the adult arcades is of a public nature because others can view it from outside the booths. Moreover, his sexual misbehavior reflects a lack of discretion and judgment.

AG ¶ 14 provides four conditions that could mitigate security concerns:

(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 good judgment;

(d) the sexual behavior is strictly private, consensual, and discreet. AG ¶¶ 14(a), 14(c) and 14(d) do not apply. The sexual behavior involving prostitutes occurred between 1977 and October 2006, and Applicant is now 58 years old. His sexual misconduct continued well past his adolescence, and is not a youthful indiscretion. The sexual behavior in the adult arcades is not “strictly private.” Because of his embarrassment and fears that information about his sexual behavior will hurt his family and friends, he is subject to coercion, exploitation, or duress.

AG ¶ 14(b) partially applies. Security concerns can be mitigated based on AG ¶ 14(b) by showing that the sexual behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur, and does not cast doubt on his current reliability, trustworthiness, or good judgment. There are no “bright line” rules for determining when conduct is “recent.” The determination must be based “on a careful evaluation of the totality of the record within the parameters set by the directive.” ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows a significant period of time has passed without any evidence of misconduct, then an administrative judge must determine whether that period of time demonstrates changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.

AG ¶ 14(b) does not fully apply because Applicant’s most recent sexual behavior with prostitutes occurred in October 2006, and his sexual acts at adult bookstores and arcades occurred within the last several years. However, his incidents of masturbation in a car occurred in the 1980s, and this particular misconduct is mitigated by the passage of time. The masturbation in the car was not repeated after the 1980s. There is not enough information about the incidents involving masturbation in the car to be confident that the conduct was public.

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern pertaining to 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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes two conditions that could raise a security concern and may be disqualifying in this case:

(e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing . . .; and, (f) violation of a written or recorded commitment made by the individual to the employer as a condition of employment.

AG ¶¶ 16(e)(1) and 16(f) apply. The 2002 security letter warned Applicant that his conduct with prostitutes could result in the loss of his security clearance. He acknowledged he understood the restrictions against sexual activity with prostitutes, and yet he subsequently violated that written directive. Certainly disclosure of Applicant’s sexual misconduct with prostitutes and public sexual activity in adult arcades and bookstores would negatively affect his personal, professional, or community standing,

AG ¶ 17 provides seven conditions that could mitigate security concerns in this case:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully.

(c) the offense is so minor, or so much time has passed, 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 caused 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; and,

(g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. AG ¶ 17(c) applies with respect to the masturbation in his car in the early 1980’s for the reasons stated in the previous section. However, this mitigation will not be reflected in the Formal Findings section because all Personal Conduct concerns are consolidated in SOR ¶ 2.a.

None of the other mitigating conditions in AG ¶ 17 apply. Applicant’s conduct did not involve falsification of any documents, or attempts to obstruct or mislead a security investigation. He did not receive counseling designed to change his sexual conduct, and he did not describe other positive steps to change his sexual misbehavior. Applicant admitted the sexual behavior at issue, and the sexual behavior alleged in the SOR is substantiated. He was associating with people engaged in prostitution and public sexual acts as recently as October 2006. His equivocal promise not to engage in future, similar sexual misbehavior, while holding a security clearance, does not convince me that similar misbehavior is unlikely to recur. The sexual misbehavior at issue casts doubt on his reliability, trustworthiness, or good judgment because he was unable to conform his sexual behavior to criminal laws in Texas, especially after being warned of the consequences of engaging in sexual activity with prostitutes in the 2002 security letter.

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(a): “(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) 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.

Applicant voluntarily and candidly disclosed his criminal sexual misbehavior to security officials. He provided the only record evidence showing his sexual misconduct. His promise to refrain from illegal sexual behavior in the future weighs in his favor. Some of the sexual conduct, specifically the incidents of masturbation in a car in the 1980soccurred so long ago that they have little probative value. He provided evidence of remorse, or regret concerning his sexual misconduct. He was embarrassed by his misconduct, he showed some remorse, and he recognized the damage his sexual misconduct might cause to his family and his reputation. His record of good employment weighs in his favor. These factors show some responsibility, rehabilitation, and mitigation. The evidence against mitigating Applicant’s conduct is more substantial. His sexual behavior involving prostitutes, and public sexual acts was knowledgeable and voluntary. His sexual misconduct occurred over more than 25 years, and he was about 56 years old when he last violated Texas laws concerning indecent sexual behavior and solicitation of prostitution. He was sufficiently mature to be fully responsible for his conduct. Criminal sexual misbehavior is not prudent or responsible. His criminal sexual behavior, while holding a security clearance, and after being warned in the 2002 security letter to stop this sexual misconduct or potentially lose his clearance, is particularly aggravating, and weighs heavily against granting or continuing his security clearance. He did not receive counseling or therapy, and may not have a clear understanding about how to avoid problematic situations and why he engaged in the sexual misconduct.

I have persistent and serious doubts about his judgment, reliability, and trustworthiness. His criminal sexual misconduct calls into question his current ability or willingness to comply with laws, rules and regulations. After weighing the disqualifying and mitigating conditions, and all the facts and circumstances, in the context of the whole person, I conclude he has not mitigated the security concerns pertaining to sexual behavior and personal conduct.

I take this position based on the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), my “careful consideration of the whole person factors”13 and supporting evidence, my application of the pertinent factors under the Adjudicative Process, and my interpretation of my responsibilities under the Guidelines. Applicant has not mitigated or overcome the government’s case. For the reasons stated, I conclude he is not eligible for 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 Subparagraphs 1.a to 1.c: Against Applicant Subparagraph 1.d: For Applicant Subparagraphs 1.e to 1.f: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraph 2.a: Against Applicant

CONCLUSION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant. Clearance is denied.

____________________________ Mark W. Harvey Administrative Judge

FOOTNOTES

1 Item 4 (Security Clearance Application, dated May 31, 2005). For convenience, the security clearance application in this decision will be called an SF 86. There is no allegation of falsification of the 2005 SF 86.

2 Item I (Statement of Reasons (SOR), dated Jan. 11, 2007). Item I is the source for the facts in the remainder of this paragraph unless stated otherwise. 3On Aug. 30, 2006, the Under Secretary of Defense (Intelligence) published a memorandum directing application of revised Adjudicative Guideline to all adjudications and other determinations made under the Directive and Department of Defense (DoD) Regulation 5200.2-R, Personnel Security Program (Regulation), dated Jan. 1987, as amended, in which the SOR was issued on or after Sep. 1, 2006. The revised Adjudicative Guidelines are applicable to Applicant’s case.

4 Item 2 (Applicant’s response to SOR, notarized on Mar. 5, 2007).

5 Defense Office of Hearings and Appeals (DOHA) transmittal letter, is dated Nov. 5, 2007, and Applicant’s receipt is dated Nov. 16, 2007.

6 Id. The DOHA transmittal letter informed Applicant that he had 30 days after Applicant’s receipt to submit information. 7Item 5 (Applicant’s written statement to a Defense Security Service (DSS) Special Agent, was sworn on Dec. 11, 2006) at 1-2. Item 5 is the source for all facts in this section, unless stated otherwise. 8 In Lawrence v. Texas, 539 U.S. 558 (2003), the U.S. Supreme Court reversed a Texas Court decision upholding TPC Ann. § 21.06, which made it a crime for two persons of the same sex to engage in certain intimate sexual conduct. The sexual activity at issue in Lawrence occurred in a private residence between consenting adults, as opposed to sexual activity in a public place. 9 TPC § 21.07 provides the elements for the offense of public lewdness stating: (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his: (1) act of sexual intercourse; (2) act of deviate sexual intercourse; (3) act of sexual contact; or (4) act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl. (b) An offense under this section is a Class A misdemeanor. Under Texas law, an individual peep show booth in an adult bookstore, where a defendant sat beside an undercover police officer and began rubbing her genital area, was a public place within the meaning of TPC § 1.07, as the evidence showed it was a part of the "shop" open to the public and occupants of the booth had no right to expect privacy. See Westbrook v. State, 624 S.W.2d 294 (Tex. App. Dallas 1981). Moreover, the interior of a defendant's car was a "public place" as defined in TPC § 1.07 where the car was parked on a public street in a residential area; the windows were not tinted or shaded; and an officer who stood in the public roadway was able to see defendant's companion's genitals. See Edwards v. State, 1987 Tex. App. LEXIS 6671 (Tex. App. Houston 14th Dist. Apr. 2, 1987). TPC § 1.07(a) (40) states, “(40) ‘Public place’ means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.).” 10 Under TPC § 43.02, the criminal offense of prostitution includes the following elements: (a) A person commits [prostitution] if he knowingly: (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or (2) solicits another in a public place to engage with him in sexual conduct for hire. (b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited. (c) An offense under this section is a Class B misdemeanor, unless the actor has previously been convicted one or two times of an offense under this section, in which event it is a Class A misdemeanor. If the actor has previously been convicted three or more times of an offense under this section, the offense is a state jail felony. 11 See Directive ¶ E3.1.14. “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [a Judge’s] finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). “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). 12 “The Administrative Judge [considers] the record evidence as a whole, both favorable and unfavorable, evaluate[s] Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and decide[s] whether Applicant ha[s] met his burden of persuasion under Directive ¶ E3.1.15.” ISCR Case No. 04-10340 at 2 (App. Bd. July 6, 2006). 13See ISCR Case No. 04-06242 at 2 (App. Bd. June 28, 2006).