(dissenting) :

McKeand, an engineer for a major defense contractor, held a “secret” security clearance from 1960 to 1967. At his employer’s request, he applied to the Department of Defense for a “top secret” security clearance in 1967. The Department of Defense, during its investigation of MeKeand’s application, discovered letters which indicated that Mc-Keand was a homosexual. Also, Mc-Keand submitted a written statement which reviewed his infrequent homosexual activity during the last three decades.

The Department of Defense informed McKeand that his security clearance would be revoked. Department of Defense administrative hearings upheld this revocation decision. McKeand’s action in district court ended in summary judgment in favor of the Department of Defense. McKeand now appeals that decision to this court.

This court must decide whether the Department of Defense’s decision to deny McKeand a security clearance at any level is supported by substantial evidence on the record studied in its entirety. The majority, despite its reservations, applies this standard as stated in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951):

I cannot agree that the Department of Defense’s decision is supported by substantial evidence.

The Department of Defense revoked MeKeand’s security clearance pursuant to 32 C.F.R. §§ 155.4 , 155.5 which implement a presidential order concerning security requirements for government contracts. Section 155.4 states that the “policy” that “(a) Access to classified information shall be granted or continued only to those individuals who have been determined eligible based upon a finding that to do so is clearly consistent with the national interest.” Section 155.5 list various “criteria” upon which the Department of Defense could deny an individual a specific security classification. The relevant “criteria” for this case include: “(n) Any behavior, activities, or associations which tend to show that the individual is not reliable or trustworthy.”; and “(p) Any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addition, or sexual perversion.”; and “(s) Any facts or circumstances which furnish reason to believe that the individual may be subjected to coercion, influence, or pressure which may be likely to cause action contrary to the national interest.”

The Department of Defense, to justify the revocation of the security clearance, must offer proof of a rational connection between MeKeand’s admitted homosexuality, and his ability to safeguard classified information. Gayer v. Laird, 332 F.Supp. 169, 171 (D.D.C.1961) (and cases cited therein). Such proof cannot 'depend solely on the use of convenient labels such as “immoral conduct.” Norton v. Macy, 135 U.S.App.D.C. 214 , 417 F.2d 1161 (1969). “A pronouncement of ‘immorality’ tends to discourage careful analysis because it unavoidably connotes a violation of divine, Olympian, or otherwise universal standards of rectitude.” Id. at 1165 . Rather, the government must present specific reasons why an individual’s behavior makes him not reliable, not trustworthy, or open to coercion.

The mere fact that an individual admits his own homosexuality does not provide sufficient reason without further evidence to justify withdrawal of a security clearance. Wentworth v. Laird, 348 F.Supp. 1153 (D.D.C.1972). To support a withdrawal, the record must reveal facts showing why and how the homosexual activity renders an individual a security risk. “Generalized assumptions that all homosexuals are security risks certainly cannot outweigh almost eight years of faithful service.” Adams v. Laird, 136 U.S.App.D.C. 388 , 420 F.2d 230, 241 (1969) (Wright J., dissenting).

In the present ease, the record gives scant evidence that McKeand posed any threat to national security. The record clearly establishes that since 1960 Mc-Keand has never talked with others concerning secret information within his access; has never been approached by others seeking secret information; and, in fact, has never breached his security classification in any way.

The majority relies heavily on the hearing examiner’s determination that McKeand feared disclosure of his homosexuality. However, the trial court, commenting on this suggestion, states,

In addition to this finding of insubstan-tiality, the record shows that McKeand no longer lives with either his wife or his children. Of course, any homosexual with a security clearance will fear disclosure — if not to his family and friends, at least to the government — as long as the Department of Defense continues to revoke security clearances on a *1266 mere finding of homosexuality. However, the Department of Defense easily can cure the danger to national security allegedly posed by all homosexuals. It can abandon its arbitrary system of revoking security clearances solely on a finding of homosexuality and, thus, end homosexuals’ fears that public exposure will cost them their security classifications.

The record does not present further evidence that McKeand’s homosexuality made him unreliable, untrustworthy and open to coercion. Rather, the record reveals that the examiner’s decision reflected an unfortunate preoccupation with McKeand’s morality. The examiner stated,

These remarks, of course, conflict with the clear evidence in the record that McKeand did not breach his security clearance during seven years of work. More important, the examiner’s comments are indicative of the type of arbitrary assumptions that not only the examiner but also the trial court judge accepted. The trial court’s findings note that,

Thus, the trial court judge, and this court’s majority, rely on findings colored by the examiner’s and the Board of Appeal’s assumptions. I find such reliance impermissible. The Department of Defense cannot defend its action on the assumption that all homosexuals necessarily are potential security risks. Went-worth v. Laird. See generally the discussion and the cases cited in Note, Security Clearances for Homosexuals, 25 StanL.Rev. 403, 410-415 (1973).

Of course, I recognize that the federal government has a legitimate interest in establishing a system of security classifications which safeguards national interests. However, the due process clause of the Fifth Amendment protects the “right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference.” Greene v. McElroy, 360 U.S. 474, 492 , 79 S.Ct. 1400, 1411 , 3 L.Ed.2d 1377 (1959). This right deserves special protection when the government seeks to rest its determination of an individual’s fitness for a job on a sexual categorization. See Mindel v. United States Civil Service Comm., 312 F.Supp. 485 (N.D.Cal.1970). Cf. Griswold v. Connecticut, 381 U.S. 479, 485 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965). Therefore, I cannot support the government’s action in the present case without, at the very least, the presence of substantial evidence on the record studied in its entirety.

I believe that the revocation by the Department of Defense of McKeand’s se-, curity clearance should be set aside unless and until the Department presents specific facts peculiar to McKeand that show him not reliable, not trustworthy, or open to coercion.

Therefore, I dissent.