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ISCR Case 08-01431 — CASE

ISCR Case 08-01431denied

Case Headnote

ISCR Case No. 08-01431

May 28, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A married applicant was denied a U.S. DOHA security clearance under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct). The denial stemmed from an undisclosed extramarital affair with another married individual.

The judge determined that the applicant's failure to disclose the affair to his own spouse or the other individual's spouse raised significant concerns. Specifically, this conduct invoked Disqualifying Conditions AG D.2 and AG E.2, indicating a pattern of questionable judgment and potential vulnerability.

Ultimately, the judge concluded that the applicant's circumstances rendered him susceptible to coercion, thereby creating doubts about his ability to protect classified or sensitive information. This led to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG D.2raisedSexual Behavior
AG E.2raisedPersonal Conduct

Key Rule Quoted

“it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJul 30, 2008
Answer filed—
Hearing heldMar 5, 2009
Decision dateMay 28, 2009

Cite For

Extramarital Affairs as a Basis for Security Clearance Denial
Impact of Undisclosed Personal Conduct on Security Clearance Eligibility
The Standard for Granting Security Clearances as 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 an applicant who was denied a security clearance due to concerns under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct). 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.

Appealed bythe applicant

Applicant representationAttorney

Judge belowWilford H. Ross — denied the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline E

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in his application of the pertinent mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant contended that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board found no error in the Judge's application of mitigating conditions or in the whole-person analysis, affirming the adverse decision based on substantial evidence and a rational connection between the facts and the decision made.

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
Jeffrey D. Billett
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: The Judge found that Applicant is married and having an affair with a married woman. Neither of them has told their spouse of the affair. Also, Applicant’s business partner is not aware of the relationship. Applicant’s conduct left the Judge ample to doubt Applicant’s eligibility to protect classified or sensitive information. Adverse decision affirmed. CASENO: 08-01431 DATE: 05/28/2009 DATE: May 28, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-01431

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Melvin A. Howry, Esq., Department Counsel FOR APPLICANT Charles T. Mathews, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 30, 2008, 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). Applicant requested a hearing. On March 5, 2009, after the hearing, 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 issues on appeal: whether the Judge erred in his application of the pertinent mitigating conditions and whether the Judge’s whole-person analysis was erroneous. Finding no error, we affirm. The Judge found that Applicant, who is married, has been conducting an extramarital affair with A, who is also married. Applicant has given A $16,000 to enable her to purchase a home. Neither Applicant’s spouse nor A’s spouse is aware of the affair. Applicant’s business partner does not know about the affair either. The affair was ongoing at the close of the record. In the Analysis portion of his decision, the Judge concluded that Applicant’s circumstances render him subject to coercion. Applicant specifically argues that he has nothing to hide with his extramarital relationship. However, the Judge found that Applicant’s relationship is not known to his wife, his business partner, or his girlfriend’s husband. These sustainable findings undermine Applicant’s claims on appeal. Also, Applicant says that it was “contradictory for Judge Ross to criticize” Applicant for having dinner with an employee when on a trip with his girlfriend. Applicant’s argument is not persuasive. It is Applicant’s conduct which appears contradictory. On the one hand he has chosen not to disclose the information to all the interested parties, on the other hand he is not being discreet about the situation. Applicant’s conduct left ample room for the Judge to doubt Applicant’s eligibility to protect classified or sensitive information. After reviewing the record, the Board concludes 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)). Applicant contends that Applicant did not properly weigh the mitigating evidence, i.e., the testimony of two witnesses concerning Applicant’s susceptibility to coercion and his fitness for a security clearance. The record does not support a conclusion that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). The Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 8. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board