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ISCR 12-00609.h1: Guideline D security clearance hearing, granted, reversed on appeal (2014) · CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date1/3/2014
StatusgrantedReversed on appeal
LevelHEARING
TypeSTANDARD ISCR
Reversed on appeal — clearance denied
The judge granted eligibility below, but the DOHA Appeal Board reversed that decision. The applicant did not keep the clearance. The Appeal Board decided on 4/4/2014.
Read the appeal decision →
Related decisionSee the appeal decision (Case 12-00609.a1) →
From the decisionFacts this decision states. Hover a value to see the exact sentence.
Age at decision31
Tenure~7 years
Held a clearance beforeYes
Participants
Judge: John Grattan Metz, Jr.
Applicant Representation: Pro Se
Guidelines Evaluated
- DSexual Behavior · For Applicant
- EPersonal Conduct · For Applicant
Other decisions whose allegations most closely resemble this one’s. Similarity of the allegations only.
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ISCR Case 12-00609.h1grantedReversed on appeal

Case headnote

ISCR Case No. 12-00609.h1

grantedReversed on appealJan 3, 2014· Hon. John Grattan Metz, Jr.· hearing

Summary

A 31-year-old contracts administrator for a defense contractor sought to retain his security clearance after admitting to past misconduct. Between May 2000 and at least June 2008, the applicant intentionally viewed nude images of underage females. This behavior raised security concerns under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct).

The judge ultimately granted the security clearance, finding that the applicant had successfully mitigated the initial concerns. Key factors in this decision included a significant change in behavior, as the applicant had not viewed pornography since 2008.

Furthermore, the applicant's personal life demonstrated increased maturity, evidenced by his marriage and the expectation of a child. Positive recommendations from supervisors and coworkers also supported his trustworthiness. Based on these mitigating factors, the judge determined that the security concerns were resolved, and the clearance was granted.

Why the applicant prevailed

The applicant has not viewed pornography since 2008, demonstrating a significant change in behavior.
The applicant's personal life has improved, including marriage and an impending child, indicating maturity.
Positive recommendations from supervisors and coworkers supported the applicant's trustworthiness.

Conditions referenced

Disqualifying

AG ¶ 13(a)raisedSexual Behavior of a Criminal Nature
AG ¶ 16(c)raisedCredible Adverse Information in Several Adjudicative Issue Areas

Mitigating

AG ¶ 17(a)appliedThe Behavior Happened a Long Time Ago and Has Not Recurred
AG ¶ 17(b)appliedThe Individual Has Changed Circumstances or Behavior
AG ¶ 17(c)appliedThere Is No Evidence of Current Criminal Conduct
AG ¶ 17(d)appliedThe Individual Has Received Positive References From Coworkers and Supervisors

Key rule quoted

“The Government must prove, by substantial evidence, controverted facts alleged in the SOR.”
Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural posture

SOR issuedJun 19, 2013
Answer filed—
Hearing heldSep 17, 2013
Decision dateJan 3, 2014

Cite for

Mitigation of Past Sexual Behavior Under Guideline D
Consideration of Personal Life Changes in Security Clearance Decisions
Impact of Positive Work References on Clearance Outcomes

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 31: “He is a 31-year-old contracts administrator employed by a defense contractor since March 2007.”
Tenure: ~7 years: “He is a 31-year-old contracts administrator employed by a defense contractor since March 2007.”
Held a clearance before: Yes: “He seeks to retain the clearance he has held since approximately June 2003.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant's past behavior involving the viewing of nude images of underage females constituted a security concern under Guideline D. However, the applicant successfully mitigated these concerns by demonstrating significant personal changes and a lack of repeated behavior since 2008. The judge ruled in favor of the applicant, granting the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant's personal conduct concerns were mitigated. The applicant admitted to past misconduct involving the viewing of nude images of underage females but demonstrated significant changes in his personal life and received positive references from colleagues. Ultimately, the judge ruled in favor of the applicant regarding the personal conduct allegations.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 12-00609 ) Applicant for Security Clearance )

For Government: Philip J. Katauskas, Esquire, Department Counsel For Applicant: Pro se

01/03/2014 ______________

STATEMENT OF CASE

______________

METZ, John Grattan, Jr., Administrative Judge:

Based on the record in this case, Applicant’s clearance is granted.

On 19 June 2013, the Department of Defense (DoD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines D (Sexual Behavior) and E, (Personal Conduct). Applicant timely answered, requesting a hearing before the Defense Office of Hearings and Appeals (DOHA). DOHA assigned the case to me 23 August 2013, and I convened a hearing 17 September 2013. DOHA received the transcript (Tr.) 23 September 2013.

FINDINGS OF FACT

Applicant admitted the SOR allegations. He is a 31-year-old contracts administrator employed by a defense contractor since March 2007. He seeks to retain the clearance he has held since approximately June 2003.

Between May 2000 and at least June 2008, Applicant intentionally viewed nude images of underage females. Most of his pornography viewing occurred while he was in college between August 2000 and May 2004. His pornography viewing came to light in October 2008, when he failed a full scope polygraph examination.

When Applicant began viewing pornography in 2000, he was viewing photographs in the teen category on the website. He assumed at the time that the photographs were of teenagers 18 years old or older. When he underwent his polygraph examination in October 2008, he had an adverse response to questions regarding child pornography. Upon reflection, he realized that some of the teenagers in the pornographic photographs were wearing braces, which he automatically associated with age 13-14, the age at which he wore braces (GE 4). Another Government agency (AGA) disapproved his request for upgraded access and revoked his existing access because of these disclosures in October 2008 (GE 3). Applicant underwent a periodic reinvestigation in August 2010 and was granted the requested clearance in November 2010 by the Defense Industrial Security Clearance Office (DISCO)(AE A). Applicant underwent additional polygraph testing in May 2010 at a different Government agency. That agency denied his program access in June 2011 (GE 3).

Applicant has not viewed pornography since 2008. He married in 2009, and he and his wife are expecting their first child in April 2014.

Applicant’s supervisor and coworkers consider him honest and trustworthy, and recommend him for his clearance (AE B). They are all aware of the circumstances that led to the revocation of his special access in October 2008 and the denial of his re- application for special access in June 2011. Similarly, his program manager, security manager, and wife commend his work ethic and adherence to company policies (Tr. 27- 53).

POLICIES

The adjudicative guidelines (AG) list factors to evaluate a person’s suitability for access to classified information. Administrative judges must assess disqualifying and mitigating conditions under each issue fairly raised by the facts and situation presented. Each decision must also show a fair, impartial, and commonsense consideration of the factors listed in AG ¶ 2(a). The applicability of a disqualifying or mitigating condition is not, by itself, conclusive. However, specific guidelines should be followed when a case can be measured against them, as they are policy guidance governing the grant or denial of a clearance. Considering the SOR allegations and the evidence as a whole, the relevant adjudicative guideline is Guideline D (Sexual Behavior) and Guideline E (Personal Conduct),

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to applicant to refute, extenuate, or mitigate the Government’s case. Because no one has a right to a security clearance, the applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Therefore, the Government has a compelling interest in ensuring each applicant possesses the required judgement, reliability, and trustworthiness of those who must protect national interests as their own. The “clearly consistent with the national interest” standard compels deciding any reasonable doubt about an Applicant’s suitability for access in favor of the Government.3

ANALYSIS

The Government established a case for disqualification under Guidelines D and E. However, Applicant mitigated the security concerns.

At least some of the pornographic photographs Applicant viewed between May 2000 and June 2008 were of underage females, and thus contained criminal content.4 Applicant’s misconduct demonstrated immaturity and poor judgment, albeit not falling within several adjudicative areas. Nevertheless, that conduct was adjudicated for special access in both October 2008 and June 2011. While those adjudications resulted in denials of special access, the underlying pornography issues were favorably adjudicated by the DISCO in November 2010, based on a background investigation that closed in August 2010. Moreover, the May 2010 polygraph examinations added no new facts of security significance, and DoD does not apply negative reciprocity to other agency determinations—particularly where those determinations deal with special access and not with the underlying collateral clearance. Consequently, there is some question whether DISCO should have revisited its favorable November 2010 determination, or reached a contrary conclusion by forwarding the case to the DoD adjudications facility in January 2012. However, now that the case is before DOHA, I see nothing in the record, before or after the favorable November 2010 DISCO adjudication to warrant denial or revocation of Applicant’s clearance.

Finally, Applicant’s conduct occurred over five years ago, and has not been repeated. Applicant’s personal life has changed significantly since he last viewed pornography. He has married and is expecting his first child in the new year. His work references remain uniformly excellent. The whole-person evidence in the record further supports my conclusion that Applicant has mitigated the adverse security significance of his misconduct. Accordingly, I resolve Guideline D and E for Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline D: FOR APPLICANT

Subparagraph a: For Applicant

Paragraph 2. Guideline E: FOR APPLICANT

Subparagraph a: For Applicant

CONCLUSION

Under the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance granted.

JOHN GRATTAN METZ, JR Administrative Judge

FOOTNOTES

Consisting of the transcript (Tr.), Government exhibits (GE) 1-4, and Applicant exhibit (AE) A-C.

DoD acted under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1990), as amended; DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DoD on 1 September 2006. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

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

¶ 16(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;