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ISCR Case 14-05710.h1 — CASE

ISCR Case 14-05710.h1denied

Case Headnote

ISCR Case No. 14-05710.h1

deniedMay 29, 2015· Hon. David M. White· hearing

Summary

A 55-year-old compliance officer was denied a security clearance under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct) due to his admitted history of downloading, storing, and viewing child pornography. The applicant acknowledged engaging in this conduct for sexual gratification over several years, specifically from 2010 to 2013.

The Statement of Reasons detailed that the applicant's actions made him susceptible to blackmail or coercion. Furthermore, he concealed this behavior from his family and professional colleagues, recognizing that it would negatively impact his personal and professional standing. This concealment was cited as evidence of poor judgment and discretion.

Ultimately, the judge determined that the applicant's conduct raised significant security concerns. The denial was based on the applicant's admission of the behavior and his failure to present any evidence of rehabilitation or other mitigating circumstances to alleviate these concerns.

Why the Applicant Was Denied

The applicant admitted to downloading, storing, and viewing child pornography for sexual gratification over several years.
He concealed this conduct from his family and professional associates, indicating a lack of judgment and discretion.
The applicant failed to provide evidence of rehabilitation or mitigating circumstances to address the security concerns.

Conditions Referenced

Disqualifying

D.12(a)raisedSexual Behavior of a Criminal Nature
D.12(c)raisedSexual Behavior That Causes Vulnerability to Coercion
D.12(d)raisedSexual Behavior Reflecting Lack of Discretion
E.15(e)raisedConcealment of Conduct Creating Vulnerability

Key Rule Quoted

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

Procedural Posture

SOR issuedDec 8, 2014
Answer filedDec 22, 2014
Hearing held—Decided without a hearing
Decision dateMay 29, 2015

Cite For

Security Concerns Related to Criminal Sexual Behavior Under Guideline D
Lack of Mitigating Evidence for Personal Conduct Issues Under Guideline E
Importance of Transparency and Honesty in the Security Clearance Process.

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 admitted to downloading, storing, and viewing child pornography for sexual gratification over several years, which raised significant security concerns under Guideline D. The judge found that the applicant's conduct was felonious and reflected a serious lack of discretion and judgment, leading to a denial of security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	The applicant downloaded, stored, and viewed child pornography for sexual gratification over the course of several years.	Against Applicant	Child Pornography Involvement	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	The applicant's conduct made him susceptible to blackmail or coercion.	Against Applicant	Unspecified Sexual Behavior	Denied	(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, specifically regarding the downloading, storing, and viewing of child pornography. The applicant's concealment of this conduct from family and colleagues raised significant security concerns that were not mitigated.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant downloaded, stored, and viewed child pornography on multiple occasions from 2010 to 2013. He concealed that conduct from his family members and professional colleagues, knowing that it would adversely affect his personal and professional standing.	Against Applicant	Concealment Creating Coercion Vulnerability	—	Admitted	—	—	—

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. 14-05710 ) ) Applicant for Security Clearance )

For Government: Chris Morin, Esq., Department Counsel For Applicant: Pro se

05/29/2015 ______________

STATEMENT OF CASE

______________

WHITE, David M., Administrative Judge:

Applicant revealed, during a security clearance interview, that he had downloaded, stored, and viewed child pornography for sexual gratification over the course of several years. He concealed this information from his employer, family, and friends. Resulting security concerns were not mitigated. Based on a review of the pleadings and exhibits, eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application on April 10, 2014. On December 8, 2014, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing security concerns under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct).2 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 that came into effect in the Department of Defense on September 1, 2006.

Applicant submitted a written response to the SOR on December 22, 2014, and requested that his case be decided by an administrative judge on the written record without a hearing. Department Counsel submitted the Government’s written case on January 15, 2015. A complete copy of the File of Relevant Material (FORM) was provided to Applicant, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation within 30 days of his receipt of the FORM.

Applicant acknowledged receipt of his copy of the FORM and replied on April 9, 2015, stating, “I have no further responses regarding my security clearance. I understand that my clearance will be revoked.” I received the case assignment on April 27, 2015.

FINDINGS OF FACT

Applicant is 55 years old, and has worked as a compliance officer for a major public university since 2008. He is married, and has twin 21-year-old children. He earned his bachelor’s degree in 1984 and master’s degree in 1990. He served a three- year enlistment in the U.S. Army, from which he was honorably discharged in 1982.

In his response to the SOR, Applicant admitted the allegations in SOR ¶ 1.a and 2.a, concerning his downloading, storing, and viewing of numerous internet files containing pornographic images and videos of what he believed to be minor children. He denied the allegation in SOR ¶ 1.b, claiming that he did not acknowledge that this conduct made him susceptible to blackmail or coercion because the only people who knew about it were state law enforcement investigators and DoD security personnel.6 Applicant’s admissions are incorporated in the following findings of fact.

From 2010 to 2013, Applicant voluntarily downloaded and viewed images and videos of child pornography, saved them on his computer, and viewed them for purposes of his sexual gratification. These files have since been removed from the computer. He concealed this activity from his wife and children, as well as from professional supervisors and coworkers. His claim that this activity does not subject him to potential coercion is based on his attempts to keep it secret.

The record lacks evidence concerning the quality of Applicant’s professional performance, the level of responsibility his duties entail, or his track record with respect to handling sensitive information and observation of security procedures. No character witnesses provided statements describing his judgment, trustworthiness, integrity, or reliability. I was unable to evaluate his credibility, demeanor, or character in person since he elected to have his case decided without a hearing.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions (DCs) and mitigating conditions (MCs), which are to be used 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in the context of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, “[t]he applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7 of Executive Order 10865 provides: “[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”

A person applying for access to classified information seeks to enter 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.

ANALYSIS

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 conditions that could raise a security concern and may be disqualifying. The evidence in this case supports concerns under the following provisions:

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

(d) sexual behavior of a public nature and/or that reflects lack of discretion or judgment. Applicant’s child pornography activities were felonious in nature, despite the decision of local authorities not to prosecute him. He kept them secret from his family and professional associates, knowing that knowledge of them would make him subject to coercion, exploitation, and duress. His repetitive receipt and use of child pornography for purposes of sexual gratification reflected a serious lack of discretion and judgment.

AG ¶ 14 provides 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.

Applicant offered no evidence to support mitigation under any of these potentially mitigating conditions.

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 one condition that raises security concerns and may be disqualifying with relation to the allegations 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 . . . engaging in activities which, if known, may affect the person’s personal, professional, or community standing. Applicant downloaded, stored, and viewed child pornography on multiple occasions from 2010 to 2013. He concealed that conduct from his family members and professional colleagues, knowing that it would adversely affect his personal and professional standing.

AG ¶ 17 provides conditions that could mitigate personal conduct security concerns. Three have potential applicability under the facts in this case:

(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; and

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

Applicant’s conduct was surreptitious and remains secret from people whose opinions matter to him. His misconduct occurred on multiple occasions, was recent, and was without justification. Thus, Applicant failed to establish mitigation under any of these conditions.

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 relevant 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 considered the potentially disqualifying and mitigating conditions in light of all pertinent facts and circumstances surrounding this case. Applicant is an accountable adult, who is responsible for the voluntary choices and conduct that underlie the security concerns expressed in the SOR. He did not establish rehabilitation or show that the potential for pressure, coercion, and duress from his child pornography activities was in any way diminished. He has not demonstrated a basis to conclude that he would not violate laws, rules, or regulations for personal gratification in the future. Overall, the record evidence leaves me with substantial doubt as to Applicant’s present eligibility and suitability for a security clearance. He did not meet his burden to mitigate the security concerns arising from his sexual behavior and personal conduct.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline D: AGAINST APPLICANT

Subparagraphs 1.a and 1.b: Against Applicant

Paragraph 2, Guideline E: 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 the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

DAVID M. WHITE Administrative Judge

FOOTNOTES

Item 5. Item 1. Item 4. Department Counsel submitted 10 Items in support of the SOR allegations. Item 6 is inadmissible and will not be considered or cited as evidence in this case. It is the summary of an unsworn interview of Applicant conducted by an interviewer, from the Office of Personnel Management on May 21, 2014, that was never adopted by Applicant as his own statement, or otherwise certified by him to be accurate. Under Directive ¶ E3.1.20, this Report of Investigation summary is inadmissible in the absence of an authenticating witness. Item 5. Item 4. Items 4, 5, 7, 8, 9, and 10.