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ISCR Case 07-16240.a1 — CASE

ISCR Case 07-16240.a1denied

Case Headnote

ISCR Case No. 07-16240.a1

Oct 1, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A 42-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) due to an undisclosed extra-marital affair that resulted in an illegitimate child. While the applicant disclosed the affair and child to the government, he intentionally withheld this information from his wife. This lack of transparency was deemed a significant security concern.

The judge identified several disqualifying conditions, specifically AG E2, noting that the applicant's wife was unaware of the affair and child. Furthermore, the applicant's use of his mother's address for related correspondence indicated a deliberate effort to conceal his personal circumstances. Although mitigating conditions (AG E3) were considered, they were not sufficient to overcome the security risks.

Ultimately, the judge concluded that the applicant remained vulnerable to exploitation due to his undisclosed personal circumstances, leading to the denial of his clearance. This decision was affirmed on appeal, underscoring the necessity of full and complete disclosure in security matters.

Conditions Referenced

Disqualifying

AG E2raisedE2: Personal Conduct

Mitigating

AG E3rejectedE3: Mitigating EvidenceThe judge found that the applicant's admission of the affair and child did not mitigate the security concerns.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance.”
— ISCR Case No. 07-10454 at 2 (App. Bd. Aug. 12, 2008)

Procedural Posture

SOR issuedMar 24, 2008
Answer filed—
Hearing heldJun 30, 2008
Decision dateOct 1, 2008

Cite For

Security Concerns Arising From Undisclosed Personal Conduct
Importance of Full Disclosure in Security Clearance Evaluations
Vulnerability to Coercion Due to Personal Circumstances

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 personal conduct concerns under Guideline E. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the concerns regarding the Applicant's undisclosed affair and child were valid and supported by the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz, Jr. — 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 unfavorable clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the Applicant's lack of disclosure to his wife and the potential for coercion were sustainable and supported by substantial 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

Michael Y. Ra’anan — Chair
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, who is married, had an extra-marital affair and as a result, he fathered a child. While Applicant revealed the affair and his child to the government, his wife remained unaware of them and Applicant had used his mother’s address when corresponding with the government about his clearance. The Judge concluded that Applicant’s revelation of the affair to the government failed to mitigate the security concerns arising out of Applicant’s wife’s lack of knowledge. Such conclusion is sustainable. Adverse decision affirmed. CASENO: 07-16240.a1 DATE: 10/01/2008 DATE: October 1, 2008 In Re: --------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-16240

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 March 24, 2008, DOHA issued a statement of reasons 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 June 30, 2008, after the hearing, Administrative Judge John Grattan Metz, Jr., denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s unfavorable clearance decision is arbitrary, capricious, or contrary to law. The Judge made the following factual findings: Applicant is 42 years old and is an employee of a Defense contractor. Applicant is married, and he and his wife have two children, ages 13 and 14. Applicant had an extra-marital affair with an old friend between late 2003 and late 2004, and at that time he fathered a child who was born in January 2005. No one is aware of the affair and the paternity of the child except the mother of the child, although Applicant is listed as the child’s father on the birth certificate. Applicant sees the child monthly and makes a $1,000 cash deposit in the child’s mother’s bank account monthly to cover child care expenses. At present, there is no formal agreement governing child support, although Applicant agrees that the child’s mother could seek a court order or other formal agreement for additional support in the future. Applicant does not want his wife to learn of the affair and is convinced that she would divorce him if she learned of it. Applicant’s wife was unaware of the clearance hearing, because Applicant had the papers related to the case mailed to his mother’s address. Applicant did not present any evidence regarding his job performance. Applicant admitted the allegations against him, and those admissions were sufficient to establish the government’s case against him. The burden of proof then shifted to Applicant to rebut, explain, extenuate, or mitigate the case against him. Directive ¶ E.3.1.15. Applicant argues that he should have been granted a clearance because he demonstrated honesty and trustworthiness by revealing his affair and his illegitimate child. He states that the government probably would not have become aware of the affair and the child if he had not mentioned them. While the Judge stated that Applicant was subject to coercion because of the affair and the child, Applicant maintains that he revealed the information to the government to “mitigate the possibility for bribery or coersion (sic).” Applicant testified at the hearing regarding his honesty in revealing his affair, and he stated that he would not compromise the interests of the United States. That was mitigating evidence for the Judge to consider, and there is a rebuttable presumption that the Judge considered it unless he specifically stated otherwise. However, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 07-10454 at 2 (App. Bd. Aug. 12, 2008). Most of the testimony at Applicant’s hearing involved the fact that his wife was unaware of his affair and the existence of his young son. While Applicant revealed the affair and his young child to the government, his wife remained unaware of them at the time of the hearing, and Applicant had used his mother’s address when corresponding with the government about his clearance. The Judge’s conclusions that Applicant’s wife’s lack of knowledge was a continuing security concern and that Applicant remained vulnerable to exploitation, manipulation, or duress in that regard are sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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