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ISCR Case 21-02392 — CASE

ISCR Case 21-02392denied

Case Headnote

ISCR Case No. 21-02392

Jan 6, 2023· Hon. Moira D. Modzelewski· appeal

Summary

A military retiree in his mid-forties was denied a security clearance due to concerns under Guideline I (Psychological Conditions) and Guideline D (Sexual Behavior). The appeal board affirmed this denial, citing the applicant's history of psychological issues and a pattern of extramarital affairs as key factors.

Specifically, the applicant's psychological history raised significant doubts regarding his judgment and reliability. Concurrently, his engagement in a series of extramarital affairs was characterized as compulsive behavior, further contributing to the security concerns.

A critical factor in the denial was the absence of evidence demonstrating that the applicant's psychological issues were in remission or had a low probability of recurrence. This lack of mitigating information ultimately led to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16raisedGuideline I: Psychological Conditions
AG ¶ 12raisedGuideline D: Sexual Behavior

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedDec 10, 2021
Answer filed—
Hearing heldOct 19, 2022
Decision dateJan 6, 2023

Cite For

Security Concerns Under Guidelines I and D Due to Psychological Issues and Sexual Behavior
The Importance of Demonstrating Remission or Low Probability of Recurrence in Psychological Conditions
The Standard for Granting Security Clearance as Being Consistent with National Security Interests

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

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of security clearance based on psychological conditions and sexual behavior. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis and concluding that the evidence supported the security concerns raised.

Appealed bythe applicant

Applicant representationAttorney

Judge belowWilford H. Ross — denied the clearance

Decided ona hearing

Guidelines belowGuideline IGuideline D

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings or analysis, affirming that the evidence raised security concerns under both Guidelines I and D. The Judge articulated a satisfactory explanation for the decision, and the Applicant did not rebut the presumption that the Judge considered all evidence.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

James F. Duffy — Chair
James E. Moody
Moira Modzelewski

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

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

APPEAL

APPEARANCES

___________________________________

) In the matter of: )

)

-----

)

ISCR Case No. 21-02392

)

) Applicant for Security Clearance ) _______________________________________) Date: January 6, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Brittany D. Forrester, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 10, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision⸺security concerns raised under Guideline I (Psychological Conditions) and Guideline D (Sexual Behavior) of DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 19, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Wilford H. Ross denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm.

The Judge’s Findings and Analysis Applicant, who is in his mid-forties, is married with two children. He served in the military, retiring in 2019 in the grade of O-4. Applicant holds a bachelor’s degree as well as a master’s and seeks to retain a security clearance in connection to his job. Applicant has had a series of sexual relationships outside of marriage, beginning around 2016 and ending two years later. Although some of these were “one night stands,” one lasted for several months. Decision at 3. Applicant also has a “long-term addiction to pornography, which he is unable, or unwilling, to stop.” Id. He has been receiving treatment for this condition since about 2017 and participates in a 12-step program. In 2021, a DoD psychiatric consultant, Dr. S, interviewed Applicant. He also interviewed Applicant’s supervisors, a security official, and a psychologist who at the time had been treating Applicant for several months. Dr. S diagnosed Applicant with a personality disorder, which “will inherently place [him] at a varying amount of risk in terms of judgment, reliability, and trustworthiness.” Id. at 10. He stated that Applicant’s “emotional reactivity and perception of rejection” could result in impulsive behaviors, noting that in the past Applicant had sought answers to his problems after he had acted in ways that contravened his values and caused harm to his family. Id. Applicant has been seeing another provider, Dr. J, who stated by letter that Applicant “is taking his medications and comes to his follow-up appointments regularly.” AE Q. In another letter, this provider stated that Applicant is motivated to seek help, complies with treatment, and is improving. The Judge made extensive findings of fact, quoting liberally from various evidentiary documents, such as Applicant’s medical records. He summarized his material findings at the beginning of the Analysis portion of the Decision, citing to Applicant’s evidence that he has been addicted to pornography for many years, that he engaged in extra-marital sexual activity, and that he engaged in inappropriate conduct at work, as a consequence of which two female workers blocked him on social media. Although he testified that he has not had an affair since 2018, Applicant advised that he continues to suffer from “obsessive sexually-related thoughts and occasional obsessive conduct.” Id. at 14. Applicant began treatment for his problems while still on active duty, and he did not disclose his extra-marital affairs to providers for several months. “Applicant has not always been an accurate reporter of his conduct . . . [F]or a considerable period of time he misstated or understated the extent of his conduct to his providers. His credibility, as well as his judgment, are suspect.” Id. In evaluating Applicant’s case for mitigation, the Judge noted that Dr. J’s statements do not qualify as a favorable prognosis. He concluded that there is no mental health finding that Applicant’s problems are in remission or that there is a low probability of recurrence. He described Applicant’s conduct as impulsive, high risk, and, insofar as acts of adultery occurred while he was on active duty, illegal under the Uniform Code of Military Justice. Moreover, “Applicant testified that he continued to deal with [his problems] within a few months of the hearing.” Id. at 16. The Judge concluded that Applicant had not met his burden of persuasion as to mitigation.

DISCUSSION

Applicant contends that the Judge did not consider, or that he mis-weighed, significant record evidence, such as the length of time that has elapsed since his last act of extramarital sex, his compliance with treatment, and the opinion of Dr. J. Applicant also contends that the Judge did not demonstrate that his difficulties bore a meaningful relation to the question of his willingness to protect classified information. In this regard, we note the opinion of Dr. S that Applicant suffers from a personality disorder that can manifest itself in impulsivity and poor decision-making, which bears upon his judgment, reliability, and trustworthiness. That prognosis is not substantially refuted by Dr. J. Moreover, the Judge did not err in characterizing Applicant’s extra-marital affairs and other sexual behavior as compulsive and of a nature to subject him to vulnerability to pressure or coercion. We find no reason to disturb the Judge’s conclusion that the evidence raises security concerns under both Guidelines. See, e.g., ISCR Case No. 15-02903 at 2 (App. Bd. Mar. 9, 2017) for the proposition that there is a nexus between admitted or proved conduct and an applicant’s eligibility for a clearance. Considering the record as a whole, we conclude that Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record or established that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 18-02872 at 3 (App. Bd. Jan. 15, 2020). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. Applicant has cited to no harmful error in the Judge’s findings or analysis. The decision is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board