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ISCR Case 15-02407.a1 — CASE

ISCR Case 15-02407.a1denied

Case Headnote

ISCR Case No. 15-02407.a1

Oct 12, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A male applicant was denied a U.S. security clearance under Guideline E (Personal Conduct) due to concerns about his extramarital affairs and the potential for coercion. The applicant used an alias during these affairs, which raised significant security concerns.

The judge determined that the applicant's conduct indicated an ongoing risk, noting that his last extramarital affair occurred shortly before the hearing. A key concern was that the applicant's wife was unaware of his activities, creating a potential vulnerability for pressure to disclose classified information.

Despite the applicant's assertion that he could separate his personal and professional life, the judge found that his personal conduct presented a substantial security risk. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

E2raisedPersonal Conduct

Key Rule Quoted

“The Directive presumes there is a nexus between proven circumstances under any of its guidelines and an applicant’s security eligibility.”
— ISCR Case No. 15-02903 at 2 (App. Bd. Mar. 9, 2017)

Procedural Posture

SOR issuedMay 5, 2016
Answer filed—
Hearing heldJul 27, 2017
Decision dateOct 12, 2017

Cite For

Security Concerns Related to Personal Conduct Under Guideline E
Nexus Between Personal Conduct and Security Eligibility
The Importance of Maintaining a Clear Separation Between Personal and Professional Life in Security Clearance Evaluations.

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 seeking a security clearance after being denied due to concerns under Guideline E related to personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the Judge's conclusions were supported by substantial evidence and consistent with the Directive.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRichard A. Cefola — 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 decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge followed required procedures. The Board concluded that the Judge's findings were not arbitrary or capricious and that the adverse decision was consistent with national security interests.

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

James E. Moody
James F. Duffy
Michael Ra’anan — Chair

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: The Directive presumes there is a nexus between proven circumstances under any of its guidelines and an applicant’s security eligibility. Adverse decision affirmed. CASENO: 15-02407.a1 DATE: 10/12/2017 DATE: October 12, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-02407

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Skyler Samp, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 5, 2016, DoD 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). Department Counsel requested a hearing. On July 27, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: 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 and Analysis Since about 2003, Applicant has used an alias to meet women online with whom he conducts extramarital affairs. He has done so about fifteen times, and many of the women have been foreign nationals. In 2012, his security clearance was revoked due to this behavior. His last extramarital affair took place about two weeks before the hearing. Applicant’s wife is unaware of his conduct, and Applicant does not want her to find out about it. In the Analysis, the Judge concluded that Applicant’s conduct raised concerns under Guideline E. He then listed the pertinent mitigating conditions and stated that none of them applied. In the whole-person analysis, the Judge noted Applicant’s good job performance but stated that he was left with questions and doubts about Applicant’s fitness for a clearance.

DISCUSSION

Applicant denies that his conduct raises security concerns. Among other things, he states that there is no evidence that he is vulnerable to coercion because he keeps his work and his personal relationships separate. Irrespective of whether there is evidence that Applicant has actually come to the attention of foreign intelligence operatives, there is certainly a rational connection between conduct that Applicant does not want his wife to discover and a concern that he could be pressured to disclose classified information should this conduct come to the attention of those interested in acquiring U.S. protected information.1 See, e.g., ISCR Case No. 15-02903 at 2 (App. Bd. Mar. 9, 2017) for the proposition that the Directive presumes there is a nexus between proven circumstances under any of its guidelines and an applicant’s security eligibility. Applicant challenges the Judge’s mitigation analysis. That analysis is admittedly conclusory. However, the Directive requires a Judge to set forth findings, policies, and conclusions as to the allegations in the SOR. Directive ¶ E3.1.25. It does not prescribe a quantum of analysis. Each case must be decided on its own merits, and in this one we conclude that the Judge has satisfied the requirements of the Directive. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

FOOTNOTES

1 “[Q]: The mere fact that you don’t want your wife to know. I assume your parents, if they are still alive, don’t know. Your brothers and your sisters don’t know. Your close friends don’t know. And probably the people you work with don’t know. Do you understand that puts you in a position of compromise? [A]: I understand it could potentially put me in a position of compromise. [Q]: Okay. Well, you have no witnesses here testifying for you. Obviously, you don’t want them to know. Correct? [A]: Correct. [Q]: Okay. Who knows about your [lovers] and your relationships with them? [A]: Myself and them alone.” Tr. at 50. The Decision is AFFIRMED. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board CONCURRING OPINION OF ADMINISTRATIVE JUDGE MICHAEL RA’ANAN There are cases where the parties or the Board might benefit from a more extensive analysis by the Administrative Judge. This is not such a case. Applicant’s conduct (surreptitiously engaging in extra-marital affairs using a pseudonym for more than a decade) raises such obvious security concerns that it is not plausible to imagine any benefit were we to ask the Judge to elaborate. Furthermore, it is not plausible to imagine a sustainable favorable decision on this record. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board