CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 11-13664.h1 — CASE

ISCR Case 11-13664.h1denied

Case Headnote

ISCR Case No. 11-13664.h1

deniedMay 3, 2013· Hon. Paul J. Mason· hearing

Summary

A 61-year-old lead information systems engineer was denied a security clearance under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct). The denial stemmed from allegations that the applicant viewed nude and sexually explicit images of underage females and adult females on work computers.

Specifically, the Statement of Reasons included allegations of viewing nude and sexually explicit pictures of underage females (1.a) and viewing adult nude and sexually explicit photos on a work computer (1.b). These actions raised disqualifying conditions under Adjudicative Guidelines paragraphs 13(c) and 13(d).

The judge found the applicant's explanations regarding his conduct to be inconsistent and not credible, particularly concerning the number and nature of images viewed. The applicant failed to credibly rebut the allegations, leading to significant concerns about his reliability and trustworthiness, and ultimately, the denial of his security clearance.

Why the Applicant Was Denied

The applicant failed to credibly rebut allegations of viewing nude and sexually explicit images of underage females.
The applicant's explanations regarding the number and nature of images viewed were found to be inconsistent and not credible.
The applicant's conduct raised significant concerns about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 13(c)raisedSexual Behavior That Causes an Individual to Be Vulnerable to Coercion, Exploitation, or Duress
AG ¶ 13(d)raisedSexual Behavior of a Public Nature And/or That Reflects Lack of Judgment

Key Rule Quoted

“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 the individual’s reliability, trustworthiness and ability to protect classified information.”

Procedural Posture

SOR issuedOct 24, 2012
Answer filedNov 19, 2012
Hearing heldFeb 1, 2013
Decision dateMay 3, 2013

Cite For

Credibility of Applicant's Explanations Regarding Sexual Behavior Under Guideline D
Impact of Personal Conduct on Security Clearance Eligibility Under Guideline E
Evaluation of Sexual Behavior as a Disqualifying Condition for Security Clearance

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 judge found that the applicant engaged in inappropriate sexual behavior by viewing nude and sexually explicit images of underage females on his home computer and adult females on his work computer. The applicant's explanations for his actions were deemed not credible, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	Viewing nude and sexually-explicit pictures of underage females	Against Applicant	Child Pornography Involvement	Denied	(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress	—	—
1.b	Viewing adult nude and sexually-explicit photos on work computer.	Against Applicant	Online Sexual Misconduct	Denied with Explanation	(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 against the applicant on the personal conduct allegations, determining that the applicant's actions raised significant security concerns regarding his judgment and reliability. The applicant's eligibility for access to classified information was denied based on these findings.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a–2.c	3 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		—		—	—	—

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. 11-13664 ) Applicant for Security Clearance )

For Government: Julie R. Mendez, Esq., Department Counsel For Applicant: Elizabeth L. Newman, Esq.

05/03/2013 ______________

STATEMENT OF CASE

______________

MASON, Paul J., Administrative Judge:

Based on a review of the entire record, Applicant has failed to meet his ultimate burden of persuasion under the sexual behavior and personal conduct guidelines. Eligibility for access to classified information is denied.

Statement of the Case

Applicant was interviewed by another government agency (AGA) on November 17, 2005, and July 23, 2008. On March 5, 2009, he provided a response to AGA September 18, 2008 letter disapproving his sensitive compartmented information access (SCI). He certified and signed an Electronic Questionnaire for Investigations Processing (e-QIP) on April 8, 2010. He provided a signed affidavit to an investigator from the Office of Personnel Management (OPM) on November 15, 2010. On October 24, 2012, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing security concerns under sexual behavior (Guideline D) and personal conduct (Guideline E). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense 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 September 1, 2006.

Applicant submitted his notarized answer to the SOR on November 19, 2012. DOHA issued a notice of hearing on January 15, 2013, for a hearing on February 1, 2013. The hearing was held as scheduled. At the hearing, four Government exhibits (GE) 1-4 were admitted in evidence without objection. Applicant’s exhibit (AE) A was admitted into evidence without objection. References to the transcript will be cited as Tr. followed by the page number. DOHA received the transcript on February 11, 2013. The record closed on February 11, 2013.

Rulings on Procedure

On January 23, 2013, the Government filed a Motion to Amend the SOR 1.bby replacing “pornography” with “nude and sexually explicit photos,” and replacing “August 2008" with “2002.” Applicant had no objection to the proposed amendment and the motion was granted. (Tr. 13-14) The Motion to Amend has been entered into the record as Hearing exhibit (HE) 1.

FINDINGS OF FACT

The SOR contains two allegations under the sexual behavior guideline and one allegation under the personal conduct guideline. Applicant denied SOR 1.a. He admitted SOR 1.bin part and denied in part. He indicated that his answers to SOR 1.a and 1.balso apply to SOR 2.a.

The following factual findings include consideration of the expansive type of questions asked by examiners during polygraphs and interviews, along with the passage of time since Applicant’s polygraph and interview. I have also taken into account his experience with previous polygraphs and mental approach to taking the 2005 polygraph and being interviewed in 2008.

Applicant is 61 years old. He has been married since August 1979. He has three sons, ages 31, 28, and 21. In June 1973, he received a bachelor’s degree in electrical engineering. He worked for several contractors until June 1983, when he began working for his current employer. His present position is lead information systems engineer. He has held security clearances since September 1973. (Tr. 91) His application for SCI access was denied in September 2008. He seeks to retain his security clearance.

Overview

The following dates are cited to provide a chronology of events in Applicant’s security investigation:

November 17, 2005. Applicant participated in a polygraph examination with AGA for approval of access to SCI. One of the issues discussed was his viewing at home or work of nude and sexually-explicit images of underage or adult females on the Internet.

July 23, 2008. Applicant had a face-to-face interview with a case manager from AGA to discuss his viewing of sexually-explicit material of underage and adult females at home or at work.

September 19, 2008. The senior adjudication officer informed Applicant by letter that he was disapproved for access to SCI on August 19, 2008. The decision was based on use of technology systems, criminal conduct, and personal conduct.

March 5, 2009. Applicant submitted a typed response to the senior case manager. In the response, he indicated that he disagreed with the disapproval letter. He opined that the redacted statements in the July 23, 2008 report (which included the redacted statements in the November 2005 polygraph) were “incorrect and/or greatly exaggerated,” and resulted from his misunderstanding the questions of the interviewer, or the interviewer misunderstanding Applicant’s answers. Next, he addressed each sentence of the case manager’s July 23, 2008 memorandum. Applicant stated, “The lack of knowing the specific topic (in July 2008 interview) meant that I was unable to think about it ahead of time in order to collect my thoughts.” (GE 2 at 296)

November 4, 2010. An affidavit signed by Applicant and subscribed by an investigator from the OPM.

SOR 1.a. Viewing nude and sexually-explicit pictures of underage females

A redacted version of the November 2005 polygraph report of AGA indicates that Applicant had 500 to 1,000 images on his home computer involving underage females who were 11 or 12 to 17 years old. His best estimation of the youngest naked girl images were approximately 11 to 13 years of age. He stated it was difficult at times to differentiate ages 15 to 17. Applicant would view and download images of sexual acts or images no matter the age of the participants. He indicated about 20 to 25% of the images he obtained through news groups (NG) were probably females less than 18. The report reflects that Applicant stated adult females 18 to 50 were his first priority, then younger females 11 or 12 to 17, if the images were available and he was interested in them. He was embarrassed to admit he liked girls under 18. (GE 2 at 280)

In his March 2009 response, Applicant stated that the estimated number of underage females was not accurate because he wanted to be “over inclusive.” He believed that naked girls were not child pornography if they did not show anything sexually provocative. In the period of dial-up Internet, Applicant used NG to download emails. If there were any suggestive indicators the images could be underage females, he did not download the email. Applicant did not know where the “20 to 25%” originated in the November 2005 polygraph. Applicant denied the statement that he liked girls under 18. He stated his primary position, which he reiterated at the hearing, that during his search through NG email, if there was any suggestion the contents related to young subjects, he would not download the email. Applicant also testified that based on earlier polygraphs, the examiner’s objective was to uncover all avenues of influence leading Applicant to confessing more than what really occurred. According to Applicant when the words “pornography” and “computer” came up during previous interviews, it was convenient to answer in the affirmative that he had viewed something pornographic. Then if his security knew he had seen pornography, a foreign agent could not use this information as a basis for coercion. (GE 2 at 301-302; Tr. 27-29, 30, 39-40, 44-45, 98, 100) I have weighed Applicant’s polygraph and interview statements against his written explanations and testimony claiming the statements are inaccurate, exaggerated, or false. I do not find his explanations credible.

According to Applicant’s July 2008 redacted personal interview with AGA, he reported viewing pornography once every two weeks since 2002, spending about a half hour to an hour. He downloaded the images from his home computer onto 12 to 15 disks after his November 2005 polygraph because he was embarrassed by it in his polygraph. Applicant estimated there were about 12,000 images of underage girls on the disks. (GE 2 at 276)

In his March 2009 response, Applicant indicated he may have made the statement (regarding viewing frequency), but he exaggerated when he labeled all the stored images pornography because he did not know the definition of pornography. The images he stored were of naked women in provocative positions. His embarrassment was due to the naked women and other images being sexually suggestive. On reflection, he believed the images were suggestive and not pornographic. The statement identifying the approximate number of underage images was incorrect. The number “12,000" represented the total number of images Applicant might have stored altogether and not the number of underage girls. In other documentation, Applicant explained the “12,000" number referred to NG email attachments. He noted the NG did not identify the ages of the females in the pictures so whenever he saw a file name that implied youthful content inside, he did not download the file. (GE 1 at 137, GE 2 at 296-297) Applicant’s explanations have been carefully evaluated, but are not credible.

Subsequently during his July 2008 personal interview with AGA, Applicant stated he did not recall viewing underage pornography. He stated that he was unsure he had any images of underage girls. Then he stated he had one or two disks of underage images. He stated he had images of 14 to 15 year olds and 50 to 60 year olds. He surmised the underage images were 14 to 15-year-old girls because the girls had fully developed breasts and a young face. The images were girls only. He stated he was not good at identifying the ages of the images of the young girls. (GE 2 at 277)

In his March 2009 response, Applicant indicated the first statement in the foregoing paragraph was true because he never intentionally downloaded pictures of underage girls. He was attempting to be as accurate as he could for the examiner. In the remainder of the paragraph, Applicant was trying to convey his uncertainty of the ages of the “girls/women.” He never accessed sites that featured young girls and he never attempted to access an illegal site. Applicant recalled that some of the women in the pictures were either smoking or drinking, illegal activities for females not of legal age. Applicant believed the women to be younger than his wife. He doubted his ability to distinguish between women 30 or 20 years younger than his wife.

At the hearing, he believed he had no pictures of females under 18 years of age. The persistent questioning of the examiner and interviewer about the ages in the pictures induced Applicant to think that some of the females may have been younger than he originally thought. (GE 298-299; Tr. 46-47) I am not persuaded by Applicant’s explanations that he did not view nude and sexually-explicit pictures of underage females at home on the Internet.

Applicant testified that he purchased his home computer in 1984. He did not view sexually-explicit pictures because of family obligations. He indicated he began viewing nude material in the summer of 2003 because he had just purchased a newer computer in December 2002, and he had diminishing family obligations. He had access to sexually- explicit material at home and at work through NG beginning in November 1991. (Tr. 35, 37- 38; AE A at 5)

SOR 1.b. Viewing adult nude and sexually-explicit photos on work computer.

The July 2008 interview with AGA reflects that Applicant viewed pornography on his work computer from 1999 to 2002. His viewing frequency was a half hour to an hour after his work shift. Other coworkers were also viewing pornography. Applicant viewed two sexually-oriented magazine web sites on his work computer. He never viewed pornography on a government computer except one time in 2005. (GE 2 at 276)

In his March 2009 response, Applicant stated that, “when I viewed sexually-explicit or suggestive images on my work computer, there was no company policy prohibiting this use.” (GE 2 at 298) Applicant observed that the pictures were similar to sexually-oriented magazine pictures. He stopped viewing the pictures when his employer implemented a policy prohibiting viewing of sexually-oriented web sites. At the hearing, Applicant was asked about the July 2008 AGA viewing-frequency statement on his work computer between 1999 and 2002. He replied that he did not recall making the statement. (GE 2 298; Tr. 96-97)

Applicant obtained AE A (an article explaining that NGs were introduced at his employment in November 1991) to establish reference points that would assist him in remembering when he began viewing NGs. He explained that the employer provided an avenue to the NGs and identified a subgroup of the NGs that were permitted through his employer’s computer network. Because Applicant had no access to sexually-explicit material on his work computer before November 1991, his statement of having access to sexually-explicit material on his work computer in the 1980swas incorrect. (GE 2 at 255) Applicant stopped accessing sexually explicit sites after his employer implemented a policy prohibiting access to pornography some time after 1995 when web sites at his employer became available. (Tr. 38-39, 60-61, 68, 71-72, 78-79)

The November 2005 polygraph indicates Applicant viewed sexually-oriented magazine cites an estimated ten times from his work computer. In his March 2009 response and his answer to the SOR, he indicated the statement was true, but it was not in violation of any company policy. He questioned whether viewing a certain sexually- oriented magazine cite was considered pornographic. At the hearing, he reduced the estimated number of times he viewed the sexually-oriented magazine web site to one occasion, and did not return when the site requested that he subscribe to the magazine.

In his March 2009 response, he explained the one time he searched for sexually- explicit pictures on his government computer was related to his work as a facilitator for a monthly group. His search revealed no sexually-explicit images. (GE 2 at 298; Tr. 68, 79- 80, 82, 85-86)

At the hearing, Applicant testified that the only women he accessed on his work computer were through the super model (SM) NG. He never tried to access nude SM NG, or any other NG that began with the word “nude” because the sites were not permitted or available in his employer’s subset of NGs. The photos of the SM NG email looked like publicity shots or magazine photos. The women were fully clothed, having portions of their breasts exposed. Applicant saw more exposed breasts on an American beach than he saw in the photos. (Tr. 60-61, 66-67, 77, 86)

On cross-examination, Applicant was asked to review GE 4 (affidavit he signed in November 2010) addressing what nude pictures he viewed on his work computer. According to the affidavit, he stated that at the time (he could not recall the time frame or frequency) when there was no company policy, he viewed pictures of SM clothed and topless on his work computer. He was asked to view a second statement on the same page indicating that he viewed topless images by himself or with other employees. Applicant could not recall either statement. (GE 2 at 16; Tr. 76, 86-90)

On two occasions during the July 2008 interview with AGA, Applicant offered to turn the disks over to the case manager. After the interview ended, Applicant informed the case manager by telephone that he was going to discard the disks because keeping the pornographic images was not worth the trouble he had encountered in trying to get a security clearance. Applicant stopped accessing sexually-explicit sites and discarded all the stored disks after his July 2008 interview. His reason was that the follow-up questions asked by the interviewer did not seem to flow from his responses, prompting him to feel “out of sync” with the questions the interviewer had asked him. He did not want to jeopardize his security clearance. He has not viewed any sexually-explicit material since July 2008 and he has no intentions of viewing the subject matter in the future. (GE 2 at 276-278; Tr. 47, 53-54)

Applicant stated that he never was a part of any group or chat room engaged in pornography. He never paid for pornographic material. He never paid for prostitution services. He was never stimulated by accessing pornography at work and he was partially aroused at home. Applicant testified he has no intent of accessing sexually explicit materials in the future. (GE at 277, 300; Tr. 82)

After he received the denial letter from AGA, Applicant told his wife that he viewed sexually-explicit material on his home computer. He told other employees at work that he viewed sexually-explicit material on his home or his work computer. He showed his department head, the systems engineer (witness A), and three other employees the denial letter that he received from AGA. He told them that the underage image findings by AGA were incorrect. The total number of pictures that he stored was misidentified by AGA as the total number of underage pictures. (GE 4 at 20; Tr. 74-78)

Character Evidence

Witness A testified that she has worked for Applicant’s employer for 14 years. Currently, she is a systems engineer. She works with government agencies in identifying security issues or implementing new cybersecurity systems. She has known Applicant for about five years and had daily contact with him as his task leader for about one and a half years. After being taken off a task in late 2008 or early 2009, Applicant advised witness A he could no longer continue in his position because he had been denied SCI access for viewing pornography on the Internet. Applicant told witness A he had stopped and she believed him. He told her the activity occurred years ago and not during the time he was supporting her task. Witness A believes Applicant’s security clearance access should be retained based on his trustworthiness, reliability as a team player, and an outstanding job performance. (Tr. 110-117)

Applicant’s wife testified she is employed by a law firm as a tax lawyer. She married Applicant in 1979. She remembered viewing the AGA denial letter advising Applicant that his security clearance was going to be denied for viewing pornography on line. She did not remember whether the letter indicated at work or at home. She never saw him looking at sexually-explicit materials. She was not surprised that Applicant admitted viewing sexually- explicit materials during the security clearance proceeding. Applicant spent a lot of time on the computer and would turn the computer screen off when she entered the computer room of their home. Applicant’s wife surmised he was viewing something even though she never saw sexually-explicit materials. After she read the denial letter, she recalled his time on the computer was reduced. He no longer turned the computer off. When Applicant told her that he did not view any pictures of underage children, she believed him. She did not believe she asked him whether he had viewed nude photos or sexually-explicit material on his work computer. Applicant’s wife considers her husband to be trustworthy and honest. He has a good memory, but is not good with names. She believes his security clearance should be continued. (Tr. 120-134)

POLICIES

When evaluating an applicant's suitability for a security clearance, the administrative judge must consider the AG. Each guideline lists potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant's eligibility for access to classified information. The decision should also include a careful, thorough evaluation of a number of variables known as the "whole-person concept" that brings together all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. Such decisions entail a certain degree of legally permissible extrapolation as to the potential, rather than actual, risk of compromise of classified information.

Under Directive ¶ E3.1.14., the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.l5., the applicant is responsible for presenting "witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . ." The applicant has the ultimate burden of persuasion as to obtaining a favorable security decision.

ANALYSIS

Sexual Behavior

AG ¶ 12 defines 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 the individual’s reliability, trustworthiness and ability to protect classified information. No adverse inference concerning standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.

AG ¶ 13 describes three conditions that may be potentially disqualifying:

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

There is sufficient record evidence that establishes both allegations under the sexual behavior guideline. Though the record does not identify a date when Applicant began viewing underage females on the Internet, the polygraph and interview contain sufficient detail that has not been satisfactorily rebutted. In the November 2005 polygraph, Applicant indicated he had between 500 and 1,000 images of underage females on his home computer, with the youngest naked girl between 11 and 13 years old. In July 2008, he had up to 12,000 pictures of underage girls.

In the November 2005 polygraph, Applicant admitted his embarrassment in viewing the underage images of girls. As he explained in his July 2008 interview, he downloaded the pictures from his computer to disks because he was embarrassed by the revelation in his November 2005 polygraph. He turned off the computer screen when his wife walked through the computer room at their home. He did not reveal his conduct to his wife and company employees until after he received the denial letter in September 2008.

Regarding Applicant’s viewing of nude and sexually-explicit pictures of adult females on his work computer from the 1980sto 2002, there is documentary evidence that Applicant did not have access to sexually-explicit material on his work computer until November 1991. The record reflects that he viewed sexually-explicit material from 1999 to 2002, and his viewing frequency was two or three times a month for a half to an hour after work. Applicant claims that he only viewed SM NG provided through his employer’s subset of NGs, and not other nude NGs because the nude prefix was not available in his employer’s NG selection list. Applicant’s claim is substantially discredited by his November 2010 affidavit stating that he admitted viewing clothed and topless SM on his work computer in his office after hours. He showed some of the pictures to other employees. Applicant exercised poor judgment in saving and storing underage images of girls on his home computer. He exercised poor judgment in viewing nude and sexually-explicit pictures of adults on his work computer after hours, even though no policy was in effect during the period. AG ¶¶ 13(c) and 13(d) apply.

AG ¶ 14 describes two pertinent conditions that may be potentially mitigating:

(b) the sexual behavior happened so long ago, so infrequently, or under unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and

There is no evidence that Applicant has viewed sexually-explicit pictures of underage girls since he discarded them in July 2008. There is no evidence that he has viewed sexually-explicit pictures of adult women on his work computer since 2002. However, the extensive number of explanations minimizing or denying any conscious viewing of nude and sexually-explicit pictures of underage girls and his discrepant positions about viewing sexually-explicit pictures of adults on his work computer raise continuing security concerns about his judgment, reliability and trustworthiness. AG ¶¶ 14(b) and 14(c) are not applicable. Personal Conduct

The security concern for personal conduct is set forth in AG ¶ 15:

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 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 contains one disqualifying condition that is relevant to Applicant’s conduct:

(e) personal conduct, or concealment of information about one’s conduct, that creates 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....

Applicant’s accessing of nude and sexually explicit pictures of underage females on his home computer and adult females on his work computer has been addressed under the sexual behavior guideline discussion. The activity creates a vulnerability to pressure under AG ¶ 16(e).

There are three pertinent mitigating conditions under AG ¶ 17:

(c) the offense was 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 stressors, circumstances, or factors that caused untrustworthy, unreliable or other inappropriate behavior, and such behavior is unlikely to recur; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

In November 2005 and July 2008, Applicant admitted viewing sexually-explicit pictures of underage females on his home computer and sexually explicit pictures on his work computer. The sexual behavior was not minor and Applicant continues to deny he deliberately viewed sexually explicit pictures of underage females. He threw away all the pictures after the interview in July 2008. Even though he showed the AGA denial letter to his wife and he informed other employees about viewing pornography at home and at work, I am unable to confidently conclude that he was completely forthright with his wife and other company employees.

WHOLE PERSON CONCEPT

I have examined the evidence under the disqualifying and mitigating conditions in my ultimate finding for Applicant under the personal conduct guideline. I have also weighed the circumstances within the context of nine variables known as the whole-person concept. In evaluating the relevance of an individual's conduct, the administrative judge should consider the following factors set forth in 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 the participation was 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 decision of whether the granting or continuing eligibility for a security clearance is clearly consistent with the interests of national security must be a judgment based on common sense after a careful review of the guidelines, which are to be evaluated in the context of the whole-person concept.

Applicant is 61 years old. He has been married since 1979 and has three adult-age children. He has been employed by a defense contractor since 1983 and is currently a lead systems engineer. Witness A described Applicant’s job performance as outstanding. Witness A considers him to be trustworthy. His wife believes he is honest and has a good memory except for names. Both believe he should retain his security clearance.

On the other hand, Applicant provided information to AGA in November 2005 and July 2008, that he downloaded and viewed nude and sexually-explicit pictures of under age females on his home computer. He told AGA that he viewed sexually explicit pictures of adult females. In both AGA statements, he provided age details, viewing frequencies, and period of viewing.

Beginning in March 2009, Applicant began denying or minimizing the complete extent of his misconduct. First, he faulted the timing of the July 2008 interview. Because he was not told of the specific topic in advance, he was not able to prepare himself. Second, the expansive nature of the questions in the polygraph and interview led Applicant to overstate or confess more than the truth. If Applicant was trying to be as honest as he could during the 2005 polygraph and the 2008 interview, then overstating his viewing of nude and sexually-explicit pictures of underage girls is not a reasonable or responsible method of foreclosing avenues of coercion. Third, Applicant’s failure to recall detailed parts of AGA statements and the statements he wrote in an affidavit he signed in November 2010 about viewing nude pictures of adults on his work computer after hours, cannot be overlooked.

Applicant has indicated that when he viewed nude and sexually-explicit pictures of adult females on his work computer, it occurred after business hours, and there was no company policy banning the access of sexual pictures. His viewing of nude pictures on his work computer demonstrated poor judgment and a lack of common sense. Having weighed the disqualifying conditions with the mitigating conditions, and all the facts and circumstances in the context of the whole-person concept, Applicant has not mitigated the security concerns under sexual behavior and personal conduct.

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

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant

Paragraph 2 (Guideline Et): AGAINST APPLICANT

Subparagraph 2.a: Against 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.

Paul J. Mason Administrative Judge

FOOTNOTES

Exhibit page numbers are located in the lower right hand corner of the page, unless otherwise noted. Applicant had been interviewed by AGA at least one time before the November polygraph. (Tr. 92) At the hearing, he did not recall making the statement identifying the approximate number of underage images of girls or their age range. (Tr. 98)