Bad Memory Does Not Mitigate Viewing Child Pornography

One of the first cases of 2022 heard by the Defense Office of Hearing an Appeals (DOHA) involved an DoD contractor who had downloaded child pornography from 2006-10 and was interviewed about it by the FBI after they had seized his computer. The DoD CAF denied clearance eligibility, but that decision was initially overturned on appeal to DOHA. The Department Counsel appealed then that decision citing the initial judge’s opinions and facts were not consistent with established guidelines. Here is a quick summary of the case:

When the applicant was 27 years old, he searched for and downloaded child pornography and engaged activities such as exposing himself online in chat rooms. The FBI got wind of it, seized his computer, and pulled him in for interviews twice. Although he was never formally charged and his computer was returned, the FBI wrote up a detailed report that indicated the applicant did indeed engage in the criminal sexual behavior. In his appeal to DOHA the applicant claimed to not remember things very well and seemed to suggest he didn’t know why the FBI showed up at his house and interviewed him. The details he provided were quite different then the ones in the FBI report.

The initial judge in this case didn’t address the full range of disqualifying concerns identified in the FBI report, nor did he properly identify mitigating factors that would override those concerns. The applicant’s argument that he was never charged with a crime does not negate his self-admitted criminal and sexual behavior. His “sudden amnesia” about the events also does not provide any mitigation. In fact, the failure to take responsibility for his actions works against him. After review of the facts and information in the initial decision, the second DOHA judge reversed the initial favorable decision and denied eligibility for a security clearance.