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Summary

The applicant, a 44-year-old married male with a grade school education, sought to retain a Top Secret-level security clearance despite allegations of criminal sexual behavior and personal conduct issues. The judge found that the applicant did not engage in the alleged criminal acts and that his admissions were made under duress, ultimately granting the security clearance.

Under Guideline D (Sexual Behavior), the Statement of Reasons alleged the following: The Applicant was arrested for Disorderly Conduct (Soliciting a Lewd Act) in March 1986, and subsequently plead nolo contendere to the charge (1.a). In January 1996, the Applicant was arrested and charged with Lewd Conduct for allegedly masturbating in front of a police officer while urinating in a public restroom. The Applicant denied the charge, plead not guilty, and was acquitted at the end of a jury trial (1.b). The Government alleges that the Applicant intentionally falsified material aspects of his personal background during the clearance screening process (2.a). The Applicant has never denied the fact of his nolo contendere plea on the 1986 charge (2.b). The Government alleges that the Applicant has engaged in criminal acts (3.a).

The judge granted the clearance. The government raised disqualifying conditions D, E, J. The decision turned on the following: The judge found the applicant credible and believed his testimony regarding the incidents; The applicant's nolo contendere plea was determined to be made under the advice of counsel and not an admission of guilt; The applicant successfully mitigated the government's case by demonstrating he did not engage in criminal sexual activity.

Why the applicant prevailed

• The judge found the applicant credible and believed his testimony regarding the incidents.
• The applicant's nolo contendere plea was determined to be made under the advice of counsel and not an admission of guilt.
• The applicant successfully mitigated the government's case by demonstrating he did not engage in criminal sexual activity.

Conditions referenced

Key rule quoted

“Each adjudication is to be an overall common sense determination based upon consideration and assessment of all available information, both favorable and unfavorable, with particular emphasis placed on the seriousness, recency, frequency, and motivation for the individual's conduct; the extent to which conduct was negligent, willful, voluntary, or undertaken with the knowledge of the circumstances or consequences involved; and, to the extent that it can be estimated, the probability that conduct will or will not continue in the future.”

Procedural posture

• SOR issuedApr 7, 1997
• Answer filedApr 23, 1997
• Hearing heldAug 26, 1997
• Decision dateFeb 11, 1998

Cite for

• Credibility of Applicant's Testimony in Mitigating Allegations of Misconduct
• Impact of Duress on Admissions During Investigative Interviews
• Consideration of Sexual Orientation in Security Clearance Determinations