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ISCR Case 08-06969.a1 — CASE

ISCR Case 08-06969.a1denied

Case Headnote

ISCR Case No. 08-06969.a1

Jul 7, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A network architect, employed by a Federal contractor, was denied a security clearance under Guideline E (Personal Conduct). The denial stemmed from concerns related to his wife's operation of two pornographic websites.

The primary disqualifying condition raised was E2.A5.1.2, indicating that the applicant's wife's activities could negatively impact his professional or community standing. Furthermore, the applicant was found to have not taken adequate steps to mitigate his potential vulnerability to coercion or exploitation arising from this situation.

The appeal board affirmed the denial, concluding that the applicant's presented claims of mitigating circumstances were insufficient to overcome the security concerns.

Conditions Referenced

Disqualifying

E2.A5.1.2raisedPersonal Conduct

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 issuedOct 10, 2008
Answer filed—
Hearing heldApr 13, 2010
Decision dateJul 7, 2010

Cite For

Security Concerns Related to Personal Conduct Under Guideline E
Impact of a Spouse's Conduct on an Applicant's Security Clearance
Insufficient Mitigating Circumstances in the Context of Coercion Risks

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 a security clearance based on concerns related to the applicant's wife's pornographic websites, which could lead to coercion. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the findings were supported by substantial evidence and that the Judge's conclusions were not arbitrary or capricious.

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

Jeffrey D. Billett
Jean E. Smallin
James E. Moody

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

SYNOPSIS

KEYWORD: Guideline E DIGEST: Applicant’s wife maintained two pornographic web sites, which could affect Applicant’s professional or community standing. Accordingly, they are a means through which he could be subjected to coercion. Adverse decision affirmed. CASENO: 08-06969.a1 DATE: 07/07/2010 DATE: July 7, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-06969

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 10, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 13, 2010, after the hearing, Administrative Judge Mary E. Henry denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that at least some of the photos and written material on one of the wife’s pornographic sites were produced during the wife’s prior relationship with a man other than Applicant. This relationship was part of a series of events that achieved a degree of notoriety. Although not separately alleged, these findings and the evidence upon which they are based are relevant to the Judge’s whole-person analysis. See Directive, Enclosure 2 ¶ 2(a). In her findings, the Judge stated that Applicant denied that his wife solicits clients or advertises that she provides adult entertainment. However, Applicant admitted this allegation in his response to the SOR. Additionally, the record contains evidence which supports Applicant’s admissions. Government Exhibit (GE) 5 at 10-11; GE 8 at 2.

The Judge made the following pertinent findings of fact, which include Applicant’s admissions contained in his response to the SOR: Applicant is a network architect for a Federal contractor. Applicant is married and has a child. Applicant met his wife in the early 2000s, and they began dating in 2004, marrying two years later. Applicant’s wife maintains two web sites which specialize in hardcore pornographic content, some of which includes photographs of her, as well as written commentary about events in her life.1 She does not identify herself explicitly in these web sites, relying on a pseudonym. However, she also operates a third web site under her own name, which contains references to Applicant. It would be possible for a person with the requisite computer skill to connect Applicant’s wife with the two pornographic sites. She solicits clients on one or more of her web sites, and she maintains an “escort” posting advertising her own availability for “adult entertainment.” Applicant’s family is not aware of these web sites. Moreover, Applicant’s employer is not aware of them either. The Judge stated that Applicant had not demonstrated any steps he had taken to reduce or eliminate his vulnerability to exploitation or coercion. Applicant contends on appeal that he has not advised his employer or his family members of his wife’s web sites because the content is not something he would normally discuss with them. He states that the web sites are accessible to the public and, therefore, are not by nature the sort of private matters that could lead to blackmail. However, under the facts of this case, the Judge’s findings and the record evidence establish a reason to believe that the web sites, if they became identified with Applicant through his wife, could affect his professional or community standing. Accordingly, they are a means through which Applicant could foreseeably be subjected to coercion or duress. See Directive, Enclosure 2 ¶ 16(e). The Judge’s conclusion that Applicant’s presentation failed to mitigate this concern is sustainable. After reviewing the record, we conclude that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse 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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board