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ISCR Case 11-00326.h1 — CASE

ISCR Case 11-00326.h1denied

Case Headnote

ISCR Case No. 11-00326.h1

deniedNov 15, 2012· Hon. Robert J. Tuider· hearing

Summary

A 36-year-old network engineer was denied a security clearance due to concerns under Guidelines D (Sexual Behavior), E (Personal Conduct), and J (Criminal Conduct). The denial stemmed from a history of multiple sexual offenses and a lack of compliance with recommended therapy.

Specific allegations included an arrest in February 2001 for indecent exposure and lewd behavior, resulting in a guilty finding and fine. In April 2005, the applicant was arrested for lewd and lascivious behavior against a child and lewd exhibition, ultimately found guilty of indecent exposure. A May 2006 arrest for indecent exposure to two individuals, one a minor, led to a guilty finding, a $300 fine, one year of supervised probation, and a mental health evaluation.

A psychologist recommended therapy in May 2008, but the applicant did not comply. The judge found that the applicant's criminal history, including offenses involving minors, and his failure to follow therapy recommendations raised significant doubts about his reliability and trustworthiness. Additionally, the applicant exaggerated his therapy history on his SF 86 and during interviews.

Why the Applicant Was Denied

The applicant committed multiple sexual offenses, including indecent exposure and lewd behavior towards minors.
The applicant exaggerated his therapy and counseling history on his SF 86 and during interviews with OPM investigators.
The applicant did not comply with recommended therapy, which raised concerns about the likelihood of reoffending.

Conditions Referenced

Disqualifying

AG ¶ 13(a)appliedSexual Behavior of a Criminal Nature
AG ¶ 31(a)appliedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 16(b)appliedDeliberately Providing False or Misleading Information

Key Rule Quoted

“Eligibility for a security clearance is predicated upon meeting the criteria contained in the adjudicative guidelines (AG).”

Procedural Posture

SOR issuedMar 1, 2012
Answer filedApr 19, 2012
Hearing heldJul 25, 2012Applicant waived his right to 15 days of notice.
Decision dateAug 2, 2012

Cite For

Denial of Security Clearance Due to Multiple Sexual Offenses Under Guideline D
Exaggeration of Therapy History as a Factor in Personal Conduct Under Guideline E
Criminal Conduct Raising Questions of Reliability and Trustworthiness Under Guideline J

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 applicant has a history of sexual offenses, including indecent exposure and soliciting a minor, which the judge found to be serious concerns under Guideline D. The applicant's claims of rehabilitation and compliance with treatment recommendations were not sufficient to mitigate the security concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	In February 2001, the police arrested Applicant for indecent exposure and lewd and lascivious behavior. He pleaded nolo contendere, and the court found him guilty and fined him. (SOR ¶ 1.a)	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	—	—
1.b	In April 2005, Applicant solicited a 15-year-old girl to commit a lewd act, and he exposed himself and committed a lewd act in her presence. (SOR response) The police arrested Applicant for lewd and lascivious behavior against a child (fondling), a felony, and lewd and lascivious exhibition. The court found him guilty of indecent exposure, a misdemeanor. (SOR ¶ 1.b)	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	—	—
1.c	In May 2006, the police arrested Applicant for indecently exposing himself to two individuals. One of the individuals was a minor. Appellant pleaded nolo contendere, and the court found him guilty, fined him $300, and sentenced him to supervised probation for one year and a mental health evaluation. (SOR ¶ 1.c)	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	—	—
1.d	In May 2008, a psychologist, Dr. B, PhD, evaluated Applicant and recommended therapy. (Tr. 22-24; SOR response; GE 2) Applicant did not comply with this recommendation. (SOR ¶ 1.d)	Against Applicant	Compulsive Sexual Behavior	Admitted	(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 individual is unable to stop (c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress	—	—

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 concerns, particularly regarding his lack of candor and dishonesty during the security clearance process. The applicant's admissions of past sexual offenses and his failure to fully disclose relevant information on his SF-86 contributed to the decision to deny his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a–3.d	5 sub-charges — specific text not stated in this decision (1 against, 2 for the applicant).	Mixed		—		—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the criminal conduct allegations, determining that the applicant's history of sexual offenses raised significant concerns regarding his reliability and trustworthiness. The applicant's criminal behavior was not mitigated by any evidence of rehabilitation or changes in circumstances, leading to a denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	In February 2001, the police arrested Applicant for indecent exposure and lewd and lascivious behavior. He pleaded nolo contendere, and the court found him guilty and fined him.	Against Applicant	Sexual Offense Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
2.b	In April 2005, Applicant solicited a 15-year-old girl to commit a lewd act, and he exposed himself and committed a lewd act in her presence.	Against Applicant	Sexual Offense Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
2.c	In May 2006, the police arrested Applicant for indecently exposing himself to two individuals. One of the individuals was a minor. Appellant pleaded nolo contendere, and the court found him guilty, fined him $300, and sentenced him to supervised probation for one year and a mental health evaluation.	Against Applicant	Sexual Offense Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
2.d	In May 2008, a psychologist, Dr. B, PhD, evaluated Applicant and recommended therapy. Applicant did not comply with this recommendation.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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: ) ) XXXXXXXXXX, XXXXX ) ISCR Case No. 11-00326 ) Applicant for Security Clearance )

For Government: Robert Kilmartin, Esq., Department Counsel For Applicant: Pro se

11/15/2012 __________

STATEMENT OF CASE

__________

Tuider, Robert J., Administrative Judge:

Applicant committed sexual crimes in 2001, 2005, and 2006. He exaggerated the therapy and counseling he received after the most recent offense on his SF 86 and during two interviews conducted by Office of Personnel Management (OPM) investigators. Sexual behavior, criminal conduct, and personal conduct concerns are not mitigated. Eligibility for access to classified information is denied.

Statement of the Case

On July 13, 2010, Applicant submitted his Questionnaire for National Security Positions (SF 86). (GE 1) On March 1, 2012, the Defense Office of Hearings and Appeals (DOHA) issued a statement of reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended; and the adjudicative guidelines (AG) the President promulgated on December 29, 2005.

The SOR alleged security concerns under Guidelines D (sexual behavior), J (criminal conduct), and E (personal conduct). The SOR detailed reasons why DOHA was unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and it recommended that his case be submitted to an administrative judge for a determination whether his clearance should be granted, continued, denied, or revoked.

On April 19, 2012, Applicant’s response to the SOR was received at DOHA. On July 11, 2012, Department Counsel indicated he was ready to proceed on Applicant’s case. On July 13, 2012, DOHA issued a hearing notice, setting the hearing for July 25, 2012. Applicant’s hearing was held as scheduled. Applicant waived his right to 15 days of notice of the date, time, and location of his hearing. (Tr. 6; AE A) Department Counsel offered two exhibits, and Applicant offered two exhibits. (Tr. 16-17; GE 1-2; AE A-B) There were no objections, and I admitted GE 1-2 and AE A-B. (Tr. 16-17) Additionally, I admitted the hearing notice, SOR, and Applicant’s response to the SOR. On August 2, 2012, I received the transcript.

FINDINGS OF FACT

Applicant’s SOR response admitted with explanations all of the SOR allegations. (Tr. 20) He also provided mitigating information. His admissions are accepted as findings of fact.

Applicant is a 36-year-old network engineer employed by a defense contractor. (Tr. 17, 19; GE 1) He has never served in the military. (GE 1) In 1994, he graduated from high school. (Tr. 18) He earned an online bachelor’s degree in information systems security in 2006. (Tr. 17-18) He is not married, and he does not have any children. (Tr. 17, 20; GE 1)

Sexual Behavior and Criminal Conduct

In February 2001, the police arrested Applicant for indecent exposure and lewd and lascivious behavior. He pleaded nolo contendere, and the court found him guilty and fined him. (SOR ¶ 1.a)

In April 2005, Applicant solicited a 15-year-old girl to commit a lewd act, and he exposed himself and committed a lewd act in her presence. (SOR response) The police arrested Applicant for lewd and lascivious behavior against a child (fondling), a felony, and lewd and lascivious exhibition.1 The court found him guilty of indecent exposure, a misdemeanor. (SOR ¶ 1.b) In May 2006, the police arrested Applicant for indecently exposing himself to two individuals. One of the individuals was a minor. Appellant pleaded nolo contendere, and the court found him guilty, fined him $300, and sentenced him to supervised probation for one year and a mental health evaluation. (Tr. 21; SOR response) If the mental health evaluation recommended treatment, he was required to enroll in the treatment program within 60 days. (SOR ¶ 1.c)

In May 2008, a psychologist, Dr. B, PhD, evaluated Applicant and recommended therapy. (Tr. 22-24; SOR response; GE 2) Applicant did not comply with this recommendation. (SOR ¶ 1.d) On July 9, 2008, Applicant went to Dr. B’s office and requested a letter verifying he was participating in therapy. (GE 2) Dr. B wrote that Applicant attended an initial 55-minute session; however, he did not attend therapy or any other sessions. (Tr. 26; GE 2) Applicant is credited with meeting with Dr. B on two occasions, in May and July 2008.

On March 1, 2011, the probation office said Applicant successfully completed probation. (Tr. 24-25) The probation report indicates he completed his mental health evaluation, and does not list any requirement to complete any therapy or counseling. (GE 2)

Applicant conceded that Dr. B and a therapist recommended ongoing therapy. (Tr. 27-28) The therapist referred Applicant to Dr. B. Applicant said he saw Dr. B in May 2008 and July 2008. (Tr. 27) Dr. B recommended six months of weekly therapy sessions. (Tr. 28, 30) Applicant said he did not go to more than three therapy sessions because his probation ended, and he could not afford the therapy costs of $80 a week for six months. (Tr. 29) Dr. B opined, “Without this therapy there is a very high likelihood that this behavior will be repeated.” (Tr. 30)

In March 2012, Applicant obtained an evaluation from Dr. L, a licensed clinical psychologist. (Tr. 31; SOR response) Dr. L’s report indicates Dr. L’s sole basis for his opinion is Applicant’s interview and test results. Applicant blamed his sexual misbehavior on excessive alcohol consumption. Dr. L opined that “[g]iven that he reports abstaining from all illicit drug and alcohol use, the probability of risks appears low for the recurrence of sexually inappropriate acting-out behaviors now and in the future.” (SOR response)

Personal Conduct

Section 21 of Applicant’s July 13, 2010 SF 86, which seeks information concerning his “Mental and Emotional Health, requests, “Dates of treatment and/or counseling.” (SOR ¶ 1.b; GE 1) Applicant responded that he received treatment and/or counseling from Dr. B from November 2006 to April 2007. (GE 1) In Section 22, which pertains to “Police Record,” Applicant said:

I was under the influence of alcohol. I was going through a very hard time in my life and handled it very poorly. All requirements of the court have been fulfilled and the case has been closed. I have attended counseling after my latest offense and understand why I acted like I did. My actions were of my own fault. I’ve learned from them and have actively strived to better my life since then. All requirements of the court have been satisfied and the cases closed.

In the “Additional Comments” section on pages 49-50 of his SF 86, Applicant said:

I am worried about the charges on my criminal record. Please be aware I have been in counseling for the latest incident and now understand why I committed [those] acts that I did. I no longer abuse alcohol and have since taken every opportunity to better my life. Please consider that I realize my mistakes were of my own cause and am actively bettering myself everyday.

Applicant explained that he did not know the exact dates of therapy or counseling so he “encompassed the dates within that time frame.” (Tr. 34)

On his August 31, 2010 OPM personal subject interview (PSI), Applicant said that he received therapy from Dr. B from November 2006 to April 2007. (SOR ¶ 3.c) Applicant explained that he visited Dr. B’s office at the most, three times. (Tr. 34)

On Applicant’s October 15, 2010 OPM PSI, Applicant said that he received therapy from Dr. B from November 2006 to April 2007, attending four or five, one hour sessions with Dr. B during that time, which revealed that alcohol was the cause of his behavior. (SOR ¶ 1.d) He explained that at most he went to three sessions and that he just got the dates wrong. (Tr. 35) In regard to his 2005 offense, he said in 2005 he was caught after exposing himself to some girls. Actually, he was also charged with soliciting a lewd act from a minor. (SOR ¶ 1.e) In regard to his 2006 offense, he said he was arrested for exposing himself and he did not recall the details because he was intoxicated. (Tr. 36; GE 2; SOR ¶ 1.f) He did not reveal that he exposed himself to two people, and one was a minor. (SOR ¶ 1.f)

The police reports pertaining to the arrests in 2001 and 2006 are not part of Applicant’s file. Such reports might clarify the role of alcohol in these two offenses.

Character Evidence2

A retired senior enlisted person, who is Applicant’s uncle, has known Applicant for 20 years and describes him as mature, responsible, and reliable. He will make the right decision even when under stress. A program manager and Applicant’s supervisor describes Applicant as honest, responsible, reliable, conscientious, mature, and ambitious. A colleague who worked with Applicant in 2010 described him as conscientious, diligent, honest, and trustworthy. None of Applicant’s character references’ statements evidence knowledge of his sexual crimes. Applicant completed several technology-related courses, and has several certificates showing his efforts to improve his technical expertise.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that, “no 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 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, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified.

Eligibility for a security clearance is predicated upon meeting the criteria contained in the adjudicative guidelines (AG). These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied 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, 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 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. Adverse clearance decisions are made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the [a]pplicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, nothing in this decision should be construed to suggest that I have based this decision on any express or implied determination as to applicant’s allegiance, loyalty, or patriotism. It 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. 95-0611 at 2 (App. Bd. May 2, 1996). 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 ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue [his or her] security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 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). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, I conclude the relevant security concerns are under Guidelines D (sexual behavior), J (criminal conduct), and E (personal conduct) with respect to the allegations set forth in the SOR.

Sexual Behavior

AG ¶ 12 describes the security concern pertaining to sexual behavior:

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 lists four conditions that could raise a security concern and may be disqualifying including:

(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.

In February 2001, April 2005, and May 2006, Applicant exposed himself in public areas. Sometimes he exposed himself to children and masturbated. AG ¶¶ 13(a) to 13(d) are all established. AG ¶ 14 provides four conditions that could mitigate security concerns 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 good judgment;

(d) the sexual behavior is strictly private, consensual, and discreet.

Applicant’s exposed himself in public areas, to adults and children, and he publicly masturbated most recently when he was approximately 30 years old. Dr. B recommended that Applicant receive counseling and therapy on a weekly basis for six months. Applicant was evaluated; however, he did not receive any therapy or counseling. Dr. L’s opinion is not sufficiently reliable to mitigate security concerns because he did not have access to the police reports describing Applicant’s offenses and he did not have corroborating information concerning Applicant’s alcohol consumption. Applicant provided some good character evidence; however, this evidence is not sufficient to establish he has changed. The sexual behavior is likely to recur, and as such it continues to serve as a basis for coercion and it casts doubt on his current reliability, trustworthiness, and good judgment. None of the mitigating conditions fully apply.

Criminal Conduct

AG ¶ 30 details the concern arising from criminal conduct as follows:

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 provides two conditions that could raise a security concern and may be disqualifying in this case, “(a) a single serious crime or multiple lesser offenses;” and “(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.” The four criminal offenses are described in the sexual behavior section, and AG ¶¶ 31(a) and 31(c) are established.

AG ¶ 32 includes four conditions which may be applicable 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;

(b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person's life;

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.

Applicant admitted he committed the offenses, and he was not pressured into committing the offenses. The criminal conduct is not mitigated for the reasons stated in the sexual behavior section.

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.

Four personal conduct disqualifying conditions under AG ¶ 16 are potentially applicable. Those four disqualifying conditions provide:

(b) deliberately providing false or misleading information concerning relevant facts to an . . . investigator . . . ;3 (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information;

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information. This includes but is not limited to consideration of: . . . (3) a pattern of . . . or rule violations; and

(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. . . .

AG ¶ 16(b) applies. The Government produced substantial evidence that Applicant lied when he exaggerated the therapy and counseling he received in his SF 86 and twice to an OPM investigator during his PSIs. He did not actually receive any significant therapy and counseling. Prior to completing his SF 86 and making two statements to OPM investigators, Applicant was referred by a therapist to Dr. B around May 2008, received an evaluation from Dr. B in May 2008, and went to Dr. B’s office to request a letter falsely indicating he was receiving therapy for his probation officer in July 2008.

The allegations in SOR ¶¶ 3.e and 3.fthat he failed to list all the charged criminal offenses when interviewed by OPM investigators is not supported by substantial evidence. He provided the gist of his criminal offenses in 2001, 2005, and 2006. The OPM interviews are summaries and the questions the investigators asked Applicant are not included. He denied that he intentionally omitted information.

AG ¶ 16(d) applies. Applicant violated rules when he committed four criminal offenses, and when he exaggerated his receipt of counseling and therapy on his SF 86 and during his two OPM PSIs.

AG ¶ 16(e) applies. When Applicant committed four criminal sexual offenses, and when he exaggerated his receipt of counseling and therapy on his SF 86 and during his two OPM PSIs, he engaged in conduct which adversely affects his personal, professional, and community standing. Further analysis concerning applicability of mitigating conditions is required. AG ¶ 16(c) does not apply. There is sufficient credible adverse information under the sexual behavior and criminal conduct guidelines for an adverse determination.

Four 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 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.

AG ¶ 17(f) applies to the allegations in SOR ¶¶ 3.e and 3.fthat he failed to list all the charged criminal offenses when interviewed by OPM investigators. He provided the gist of his criminal offenses in 2001, 2005, and 2006 to the OPM investigators.

The personal conduct allegations in SOR ¶ 3.a duplicated the sexual behavior allegations in SOR ¶¶ 1.a to 1.d. The scope of his security-related conduct is thoroughly addressed under Guideline D and the Whole-Person Concept, infra. As such, SOR ¶ 3.a is found for Applicant as a duplication of SOR ¶¶ 1.a to 1.d.

The other SOR allegations in SOR ¶¶ 3.b, 3.c, and 3.dare that he intentionally provided false information when he exaggerated the therapy and counseling he received. This conduct was recent (July 13, 2010, August 31, 2010, and October 15, 2010), is serious, and is not mitigated.

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) 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 have incorporated my comments under Guidelines D, J, and E in my whole-person analysis. Some of the factors in AG ¶ 2(a) warrant additional comment.

There are some facts supporting mitigation of security concerns under the whole- person concept; however, they are insufficient to fully mitigate security concerns. Applicant is a 36-year-old network engineer, who earned an online bachelor’s degree in information systems security in 2006 as well as several certificates. He has completed numerous technical courses. Three character witnesses, including supervisors, a coworker, and an uncle, describe him as mature, responsible, reliable, honest, conscientious, mature, ambitious, diligent, and trustworthy. There are no allegations that Applicant violated security. He has the ability and maturity to comply with security requirements. He is an intelligent person, who understands the importance of compliance with security rules. There is no evidence of disloyalty. His admissions that he committed the sexual offenses are an important step towards rehabilitation and mitigation of security concerns.

The evidence against approval of Applicant’s clearance is more substantial at this time. In February 2001, April 2005, and May 2006, Applicant exposed his penis in public areas. Sometimes he exposed himself to children and masturbated. He was charged with four sexual behavior-type offenses. On July 13, 2010, he completed his SF 86. He listed the criminal offenses on his SF 86 and claimed he was receiving counseling or therapy from November 2006 to April 2007. Dr. B had recommended that he receive six months of weekly therapy. In reality he did not receive any therapy or counseling sessions. On August 31, 2010 and October 15, 2010, Applicant exaggerated the extent of his therapy and counseling to OPM investigators. Accurate information in a security context is crucial to national security. His sexual misbehavior in 2001, 2005, and 2006, and his false statements on his SF 86 and to OPM investigators show lack of judgment and raise unresolved questions about Applicant’s reliability, trustworthiness and ability to protect classified information.

I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude sexual behavior, criminal conduct, and personal conduct concerns are not mitigated. 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.d: Against Applicant

Paragraph 2, Guideline J: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Paragraph 3, Guideline E: AGAINST APPLICANT

Subparagraph 3.a: For Applicant Subparagraphs 3.bto 3.d: Against Applicant Subparagraphs 3.e and 3.f: For Applicant

CONCLUSION

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

_________________________ Robert J. Tuider Administrative Judge

FOOTNOTES

1 The 2005 police report indicates on the first occasion, Applicant blocked the sidewalk with his vehicle, and offered $50 to two 12-year-old girls, if they would watch him masturbate. The two children told him that they were 12 years old. Applicant exposed his penis to them and began to masturbate. They subsequently picked his photograph out of a lineup at their grade school. In the second instance, Applicant pulled his vehicle up next to another vehicle containing two individuals, pulled down his trousers, exposed his penis, and began to masturbate. He was not arrested until several days later. There is no evidence in the police report that he was under the influence of alcohol when he committed either of these offenses. (GE 2) 2The sources of the character evidence are statements submitted as part of Applicant’s SOR response. 3The Appeal Board has cogently explained the process for analyzing falsification cases, stating: (a) when a falsification allegation is controverted, Department Counsel has the burden of proving falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent or state of mind at the time the omission occurred. [Moreover], it was legally permissible for the Judge to conclude Department Counsel had established a prima facie case under Guideline E and the burden of persuasion had shifted to the applicant to present evidence to explain the omission. ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9, 2004)).