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ISCR 09-06026.a1: Guideline D security clearance appeal, denied (2013) · CASE

ISCR Case 09-06026.a1denied

Case headnote

ISCR Case No. 09-06026.a1

Mar 5, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A retired government employee with over 30 years of service was denied a security clearance due to concerns under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct). The applicant's extramarital conduct, specifically engaging with prostitutes and an ongoing affair, raised significant security concerns.

The judge determined that this behavior demonstrated a lack of judgment and created a vulnerability to coercion, exploitation, or duress. The applicant failed to mitigate these concerns, leading to the denial.

The Appeal Board affirmed the denial, concurring that the unmitigated issues related to the applicant's judgment and ongoing affairs presented an unacceptable security risk. The denial was based on disqualifying conditions 13(c) and 13(d).

Conditions referenced

Disqualifying

13(c)appliedSexual Behavior That Causes an Individual to Be Vulnerable to Coercion, Exploitation, or Duress.
13(d)appliedSexual Behavior of a Public Nature And/or That Reflects Lack of Discretion or Judgment.

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 issuedMay 23, 2012
Answer filed—
Hearing heldDec 19, 2012
Decision dateMar 5, 2013

Cite for

Security Concerns Related to Extramarital Conduct Under Guideline D and E
Lack of Judgment as a Basis for Security Clearance Denial
The Standard for Granting Clearance Must Align 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 was from a denial of a security clearance based on security concerns under Guidelines D and E. The applicant argued that the Judge did not consider all evidence and that the decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean denied the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge failed to consider all evidence in the record.
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 that the Judge considered all evidence and articulated a satisfactory explanation for the decision, with a rational connection between the facts found and the choice 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

Jeffrey D. Billett
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: Applicant failed to rebut the presumption that the Judge considered all of the evidence in the record. The Appeal Board has no authority over how clearance investigations are conducted. Judge’s description of the Guideline D security concern did not mean that he found all aspects of that concerned implicated in Applicant’s case. Adverse decision affirmed. CASE NO: 09-06026.a1 DATE: 03/05/2013 DATE: March 5, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-06026

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 23, 2012, DoD 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). Department Counsel requested a hearing. On December 19, 2012, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Thomas M. Crean 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 considered all of the record evidence and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge made the following pertinent findings of fact: Applicant has been married for over 30 years. He and his wife have three children. Applicant worked for a Government Agency (GA) for over 23 years. He retired in 2007 and has worked for a Defense contractor since then. The SOR alleged security concerns arising from Applicant’s extramarital sexual conduct. From 2004 to 2006, he engaged the services of prostitutes in various overseas locations. He also engaged in sexual conduct with a foreign national in a hotel steam room. Although his wife and friends are not aware of this conduct, he disclosed it to security clearance investigators and no action was taken against him. In addition, he engaged in an extramarital affair with a college friend from 2007 until 2010, and the two resumed their affair in 2012. This affair was ongoing as of the close of the record. Applicant’s wife is not aware of his extramarital sexual conduct, nor are the GA, his friends, or his current employer. Applicant has acknowledged that he occasionally engages in extramarital affairs, having recently done so with various women while on business-related travel. He has acknowledged that his behavior could raise counterintelligence concerns and that some of his decisions on sexual matters were failures in judgment. Applicant enjoys an excellent reputation for his dedication to mission-accomplishment, job performance, and good judgment. The Judge’s Analysis The Judge concluded that Applicant’s sexual conduct raised security concerns under Guidelines D and E. He further concluded that Applicant had failed to mitigate those concerns. He stated that Applicant’s conduct evinced a lack of judgment, and that his ongoing affair could subject him to coercion, exploitation, or duress. The Judge stated that Applicant had taken no steps to eliminate his vulnerability to coercion. In the whole-person analysis, the Judge stated that Applicant’s pattern of recklessness in his sexual conduct shows poor judgment, lack of discretion, and failure to exercise self control, casting doubt on his ability to safeguard classified information. Discussion of Appeal Issues Applicant points to evidence of his lengthy federal career without security incident or concern, his favorable character evidence, and his evidence that he has not been targeted by foreign intelligence operatives. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-11083 at 2 (App. Bd. Dec. 18, 2102). The Judge was required to consider the matters that Applicant has cited, along with all the other evidence in the record. The Judge made extensive findings about Applicant’s circumstances, including the evidence Applicant cites in his appeal. Applicant’s argument on appeal is not sufficient to rebut the presumption that the Judge considered all of the evidence in the record. Regarding Applicant’s good security record, the Government need not wait until an individual mishandles or fails to safeguard classified information before it can make an unfavorable security determination. See, e.g., ISCR Case No. 08- 00435 at 3 (App. Bd. Jan. 22, 2009). Applicant takes issue with language in the Decision in which the Judge states that sexual behavior can raise security concerns if it indicates a personality or emotional disorder, a lack of judgment, or that the applicant may be lacking in reliability. He argues that there is nothing in the record to support the belief that he has a personality disorder. However, the Judge was merely citing to the Directive’s statement of security concern under Guideline D.1 He was not concluding that Applicant’s circumstances actually evidenced a personalty disorder. The Judge found that two of the Guideline D disqualifying conditions applied to Applicant’s circumstances: 13(c)2 and 13(d),3 neither of which involve allegations of personality disorders. We find no error in the challenged statement by the Judge. Applicant contends that those investigating him for a clearance failed to interview his colleagues. He states that this lapse prevented DOHA from making a fully informed decision in his case. The Appeal Board has no authority over how clearance investigations are conducted. See, e.g., ISCR Case No. 11-01618 at 3 (App. Bd. Jan. 24, 2013). In any event, at a DOHA hearing the applicant bears the burden of persuasion as to mitigation. Directive ¶ E3.1.15. Applicant submitted a character reference, which the Judge cited in his Decision. The record provides no reason to believe that Applicant was precluded from submitting additional evidence in mitigation, had he so desired. To the extent that Applicant is alleging a failure of due process, we resolve this issue adversely to him. 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.’” 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 Decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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

FOOTNOTES

1 See Directive, Enclosure 2 ¶ 12: “Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence of coercion, exploitation, or duress can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information.”

2 Directive, Enclosure 2 ¶ 13(c): “sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress[.]”

3 Directive, Enclosure 2 ¶ 13(d): “sexual behavior of a public nature and/or that reflects lack of discretion or judgment[.]”