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ISCR Case 09-05617.a1 — CASE

ISCR Case 09-05617.a1denied

Case Headnote

ISCR Case No. 09-05617.a1

Jul 26, 2011· Hon. Jean E. Smallin· appeal

Summary

A 49-year-old operations manager for a defense contractor was denied a security clearance under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct). The denial stemmed from the applicant's history of cyber-sexual activities with multiple women, which raised significant security concerns.

Further disqualifying conditions included the applicant's failure to disclose this sexual misconduct to his wife and during polygraph examinations. While mitigating conditions were considered under both guidelines, they were ultimately deemed insufficient.

Specifically, a 2009 incident of cyber-sex undermined the applicant's claims of mitigation. The judges concluded that the applicant's actions presented unmitigated security risks, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG D.2raisedSexual Behavior That Raises a Question About an Individual's Judgment, Reliability, or Trustworthiness.
AG E.2raisedDeliberately Providing False or Misleading Information to an Investigator.

Mitigating

AG D.3rejectedThe Sexual Behavior Occurred Under Circumstances That Were Not Indicative of a Lack of Judgment or Discretion.The judge found that the applicant's actions were indicative of poor judgment.
AG E.2rejectedThe Individual Has Taken Positive Steps to Reduce or Eliminate Vulnerability to Exploitation, Manipulation, or Duress.The applicant's failure to disclose his misconduct undermined claims of taking positive steps.

Key Rule Quoted

“A Judge is presumed to have considered all the record evidence.”
— ISCR Case No. 09-01735 at 2 (App. Bd. Aug. 31, 2010)

Procedural Posture

SOR issuedMar 15, 2010
Answer filed—
Hearing heldMay 4, 2011
Decision dateJul 26, 2011

Cite For

Security Concerns Under Guideline D and E Due to Cyber-sexual Activities
Failure to Disclose Misconduct as a Significant Factor in Clearance Denial
The Presumption That Judges Consider All Record Evidence in Their Decisions.

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 security concerns under Guideline D and Guideline E. The applicant argued that the Judge erred in applying mitigating conditions and in the whole-person analysis. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge failed to consider all of the record evidence regarding the applicant's cyber-sex activities.
Whole-person analysis — raised by the applicantRejected
The Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge properly applied the relevant mitigating conditions and conducted a whole-person analysis. The Board affirmed the adverse decision based on the applicant's failure to demonstrate sufficient mitigation of security concerns.

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

Jean E. Smallin
William S. Fields
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 D; Guideline E DIGEST: A Judge is presumed to have considered all the record evidence. Adverse decision affirmed. CASENO: 09-05617.a1 DATE: 07/26/2011 DATE: July 26, 2011 In Re: ----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05617

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison O’Connell, Esq., Department Counsel FOR APPLICANT John N. Griffith, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 15, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). DOHA subsequently amended the SOR by (1) deleting the Guideline D security concerns; (2) modifying one allegation under Guideline E and (3) adding allegations under Guideline E. Applicant requested a hearing. On May 4, 2011, after the hearing, Administrative Judge Elizabeth M. Matchinski 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 application of the pertinent mitigating conditions was erroneous and whether the Judge’s whole-person analysis was erroneous. Consistent with the following, we affirm the Judge’s decision. Facts The Judge made the following pertinent findings of fact: Applicant is a 49-year-old operations manager for a Defense contractor. He has previously held a Top Secret clearance with Sensitive Compartmented Information (SCI) access. He served in the U.S. military from 1980 until 1990. His first marriage ended in divorce, and he has a daughter from that marriage. While living and working in a foreign country, he met a citizen of that country, whom he married. When assigned to work in this country, Applicant was granted “special program access” and agreed in writing to refrain from disclosing certain aspects of his job, specific program information, and links to specific government agencies. His job required him to receive annual security briefings. Subsequently, he committed some security infractions. He left some classified documents in the open where uncleared persons could have seen them, although there is no evidence of actual compromise. On another occasion, while traveling in Europe, he inadvertently removed a disk containing classified information and went to lunch with the disk in his pocket. He informed the appropriate security representatives. As a result of a corporate acquisition, he began working for his current employer in the late 1990s. Between 1999 and 2002, he brought six homemade music compact disks into his classified work area without having them scanned. He was not aware that he should not do this, even if the disks were not inserted into government sponsored computers. Later, he inadvertently brought his cell phone with him into the workplace on two occasions. He did not inform security officials of these violations. Previously, in the mid-1990s, Applicant took a series of polygraph exams. He volunteered to the examiners that he had disclosed certain aspects of his job to his wife. In 2001, Applicant became involved in on-line games of a sexual nature. He engaged in “cyber-sex” with several women. During a polygraph exam in 2004 he estimated the number of encounters as 50 to 100 with over 50 women, although he later stated that this was an overestimate. He revised the number to 20 occasions with 5 women. He informed some of his contacts that he was an engineer holding a security clearance. He had a sexual encounter with one of the women, a schoolteacher from another country. When he met the woman, he was wearing patches associated with his job, which were classified. He also developed an on-line friendship with an American woman who was married, and they became intimate. He met her through his position as the host of an on-line radio program. In 2004, he used an unclassified work computer to contact women. He did so on six occasions. Much of the information concerning Applicant’s on-line sexual contacts and security infractions came to light during a polygraph exam. In 2004, Applicant’s SCI access was revoked, and he was removed from working on the special access program. Neither could he continue to reside in the foreign country, because he no longer had a job. He told his wife why they were forced to leave the country and move to the U.S. He told her about his on-line activities but initially did not mention his affair with the schoolteacher. He later did so, after receiving the SOR. He engaged in a cyber-sexual activity on one additional occasion, in 2009, during the course of his on-line radio show. He has expressed remorse for his on-line activities, his affair, and his failure to confess these activities to his wife earlier. Applicant enjoys a good reputation for the quality of his work, his character, and his trustworthiness. In performing her analysis of Applicant’s case, the Judge concluded that allegations pertaining to his having failed to advise his wife of his sexual misconduct and to his security violations had been mitigated. However, she concluded that he had failed to demonstrate mitigation as to the balance of the allegations. She noted that Applicant appeared to consider himself a victim of the women with whom he interacted on line and of the polygraph process, his employer, and, to an extent, the Government. She stated that his 2009 incident of cyber-sex vitiates his efforts to show mitigation of security concerns arising from that kind of activity.

DISCUSSION

Applicant contends that the Judge failed to consider all of the record evidence, for example his testimony concerning the number of times he engaged in cyber-sex and his attempts to explain the discrepancies among his various statements on the subject. However, a Judge is presumed to have considered all of the record evidence. See, e.g., ISCR Case No. 09-01735 at 2 (App. Bd. Aug. 31, 2010). In the case under consideration here, the Judge explicitly discussed the evidence cited by Applicant. She treated this matter in the context of Applicant’s having failed to be completely candid during his polygraph questioning, which is consistent with the record that was before her. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. The record supports a conclusion 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,’” both as to the mitigating conditions and the whole-person factors. 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board