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ISCR Case 16-03426.h1 — CASE

ISCR Case 16-03426.h1denied

Case Headnote

ISCR Case No. 16-03426.h1

deniedJul 18, 2017· Hon. Jennifer I. Goldstein· hearing

Summary

A 62-year-old defense contractor employee was denied a security clearance due to concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). Between 2009 and 2016, the applicant admitted to receiving sexual services at massage parlors on multiple occasions. This conduct was concealed from his wife, who remained unaware of his infidelity.

The Statement of Reasons detailed that the applicant's actions constituted criminal conduct and a pattern of high-risk sexual behavior, reflecting a lack of discretion and judgment. It also created a vulnerability to coercion. The applicant's claim that he only paid for massages and not the sexual services was deemed not credible.

The denial was based on the applicant's involvement in receiving sexual services, his concealment of these actions from his wife and coworkers, which created a vulnerability to exploitation, and his failure to demonstrate rehabilitation or mitigating circumstances for his behavior. The judge concluded that this conduct raised significant doubts about the applicant's reliability and trustworthiness.

Why the Applicant Was Denied

The applicant's conduct involved receiving sexual services, which raised security concerns under multiple guidelines.
He concealed his actions from his wife and coworkers, creating vulnerability to exploitation.
The applicant failed to demonstrate rehabilitation or mitigating circumstances for his behavior.

Conditions Referenced

Disqualifying

E2raisedPersonal Conduct
D1raisedSexual Behavior
J1raisedCriminal Conduct

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedJan 31, 2017
Answer filedMar 6, 2017
Hearing heldMay 16, 2017
Decision dateJul 18, 2017

Cite For

Vulnerability to Coercion Due to Concealed Conduct Under Guideline E
Lack of Mitigating Circumstances for Sexual Behavior Under Guideline D
Criminal Conduct Raising Doubts About Reliability Under Guideline J

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant engaged in sexual behavior that raised security concerns, including receiving sexual services at massage parlors over several years. The judge found this conduct to be criminal and indicative of a pattern of high-risk sexual behavior, which created vulnerability to coercion. The applicant's claims of mitigating circumstances were not accepted, leading to a denial of security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
2.a	Applicant received sexual gratification at massage parlors on multiple occasions. His conduct is criminal and represents a pattern of high-risk sexual behavior that reflects a lack of discretion or judgment. It also creates a vulnerability to coercion, as discussed above under Guideline E. The evidence is sufficient to raise these disqualifying conditions.	Against Applicant	Criminal Sexual Conduct	Denied	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted (b) a pattern of compulsive, self-destructive, or high-risk sexual behavior that the individual is unable to stop (c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress (d) sexual behavior of a public nature or that reflects lack of discretion or judgment	—	—

Descriptive standardized rendering of a decided public case (Guideline D). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct allegations, specifically regarding his engagement in sexual activities at massage parlors, which raised significant security concerns. The applicant's failure to disclose this conduct to his wife and the potential for coercion were key factors in the decision to deny his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant received sexual services during his visits to massage parlors between 2009 and 2016. His wife is unaware of his infidelity.	Against Applicant	Questionable Judgment General	—	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the criminal conduct allegations, determining that the applicant's behavior raised significant security concerns. The applicant's receipt of sexual services at massage parlors was deemed to reflect poor judgment and a vulnerability to coercion, leading to the denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant received sexual services at massage parlors. He claimed that he only paid for the massage and not the sexual services that were provided in hopes of a better tip. His claim is not credible. The evidence establishes the above disqualifying condition.	Against Applicant	Sexual Offense Criminal	Conduct No Charge	Denied	(b) evidence of criminal conduct, regardless of charge or conviction	—	—

Descriptive standardized rendering of a decided public case (Guideline J). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-03426 ) ) Applicant for Security Clearance )

For Government: Andrew Henderson, Esq., Department Counsel For Applicant: Pro se

July 18, 2017 ______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Between 2009 and 2016, Applicant received sexual services during his visits to massage parlors. His wife is unaware of his infidelity. His conduct raised security concerns under the guidelines for personal conduct, sexual behavior, and criminal conduct. Eligibility for access to classified information is denied.

Statement of the Case

On January 31, 2017, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines E, D, and J.1 The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance.

1 I considered the previous Adjudicative Guidelines (AG), effective September 1, 2006, as well as the new Applicant answered the SOR on March 6, 2017, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on April 3, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on April 4, 2017, scheduling the hearing for May 16, 2017. The hearing was convened as scheduled. The Government offered Exhibits (GE) 1 through 2, which were admitted without objection. Applicant testified on his own behalf. The record was left open until May 23, 2017, for receipt of additional documentation. On May 16, 2017, the Government presented GE 3, which was admitted over Applicant’s objection. On May 23, 2017, Applicant submitted two exhibits, marked Applicant Exhibit (AE) A and B, which were admitted without objection. The record then closed. DOHA received the transcript of the hearing (Tr.) on May 23, 2017.

FINDINGS OF FACT

Applicant denied the allegations in SOR ¶¶ 1.a, 2.a, and 3.a. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 62-year-old employee of a defense contractor. He has been employed with the defense contractor since 2002. He is married since 1983, and has two adult children. (Tr. 15-16.)

Applicant was alleged to have visited massage parlors and paid for sexual services from about 2009 to at least 2016. He admitted that between 2005 and 2008, he received sexual services at massage parlors approximately 20 times. He stopped frequenting massage parlors in 2009, after he had disclosed receiving sexual services from foreign nationals at massage parlors during a polygraph administered to him in 2009. (Tr. 16-18.) He resumed receiving “hand jobs” three times in 2014. (GE 2.) He testified:

Well, in 2010, I started - - I was diagnosed with heart issues - - and, at that time, I resumed getting massages. And, then, in August of 2011, I actually had heart surgery, and I continued to get massages. There were no issues. And, then, in August of 2013, I started having severe back pain and was laid out on the floor for a week or so. And eventually, I needed surgery. I had that surgery, and I was recovering from that surgery. And then, in November, I re-injured my back, which laid me out for a few days and for a while. And, then, in January, I was getting massage and was offered a hand job and didn’t say no. And that behavior happened again in March, and I believe, August. So, it happened three times. There were other times - - approximately 10 times - - where they started massaging me and I stopped them. However, one time in July of 2016, even though I stopped them, I continued with the act while they were there. And that’s about the sum of my [in]discretions that happened between, you know, 2010 to the present. (Tr. 14.) Applicant testified that he only paid for the massage and a tip. He implied that he did not pay for the added sexual services. Applicant has not disclosed his indiscretions to his wife or coworkers. (Tr. 20-22.)

Applicant presented documentation to show he was part of a team at work that received a prestigious award. (AE A.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Directive ¶ E3.1.14, requires the Government to present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline E, Personal Conduct

The security concern relating to the guideline for Personal Conduct is set out in AG ¶ 15:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

The guideline notes several conditions that could raise security concerns under AG ¶ 16. One is potentially applicable in this case:

(e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes:

(1) engaging in activities which, if known, could affect the person's personal, professional, or community standing.

Applicant received “hand jobs” from women at massage parlors on several occasions. His wife and coworkers do not know of this conduct. As a result, he is vulnerable to exploitation, manipulation, and duress. The evidence is sufficient to raise this disqualifying condition.

AG ¶ 17 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 17 including:

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and

(g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

Applicant remains vulnerable to coercion. He produced no evidence of counseling or positive steps that would alleviate the risks present from his conduct. He claims he abstained from receiving sexual gratification at massage parlors from 2009 to 2014, but resumed several times in 2014 and 2016. This decision demonstrated questionable judgment. None of the above mitigating conditions apply.

Guideline D, Sexual Behavior

The security concern relating to the guideline for Sexual Behavior is set out in AG ¶ 12:

Sexual behavior that involves a criminal offense; reflects a lack of judgment or discretion; or may subject the individual to undue influence of coercion, exploitation, or duress. These issues, together or individually, may raise questions about an individual's judgment, reliability, trustworthiness, and ability to protect classified or sensitive information. Sexual behavior includes conduct occurring in person or via audio, visual, electronic, or written transmission. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.

The guideline notes several conditions that could raise security concerns under AG ¶ 13. All are potentially applicable in this case:

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted;

(b) a pattern of compulsive, self-destructive, or high-risk sexual behavior that the individual is unable to stop;

(d) sexual behavior of a public nature or that reflects lack of discretion or judgment. Applicant received sexual gratification at massage parlors on multiple occasions. His conduct is criminal and represents a pattern of high-risk sexual behavior that reflects a lack of discretion or judgment. It also creates a vulnerability to coercion, as discussed above under Guideline E. The evidence is sufficient to raise these disqualifying conditions.

AG ¶ 14 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 20 including:

(a) the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature;

(b) the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or judgment;

(d) the sexual behavior is strictly private, consensual, and discreet; and

(e) the individual has successfully completed an appropriate program of treatment, or is currently enrolled in one, has demonstrated ongoing and consistent compliance with the treatment plan, and/or has received a favorable prognosis from a qualified mental health professional indicating the behavior is readily controllable with treatment.

None of the above mitigating conditions apply. Applicant is 62 years old. He has visited public massage parlors and received sexual gratification on multiple occasions prior to 2009, stopped for a period of several years, and then again resumed receiving those services. There is no evidence that future instances of this nature are unlikely to occur. His wife still does not know of this conduct, which makes him susceptible to coercion, exploitation, or duress. He has not attended any counseling.

Guideline J: Criminal Conduct

AG ¶ 30 sets forth the security concerns pertaining to criminal conduct:

Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.

AG ¶ 31 describes one condition that could raise a security concern and may be disqualifying in this case:

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.

Applicant received sexual services at massage parlors. He claimed that he only paid for the massage and not the sexual services that were provided in hopes of a better tip. His claim is not credible. The evidence establishes the above disqualifying condition.

AG ¶ 32 provides two conditions that could mitigate the above security concerns raised in this case:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.

Applicant has not established either of the above mitigations conditions. The evidence continues to cast doubt on the individual's reliability, trustworthiness, and judgment. He has not documented any rehabilitation, aside from a group award he received.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guidelines E, D, and J in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment.

Applicant remains vulnerable to coercion. Overall, the record evidence leaves me with questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the personal conduct, sexual behavior, and criminal conduct security concerns.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are:

Paragraph 1, Guideline E: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Paragraph 2, Guideline D: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Paragraph 3, Guideline J: AGAINST APPLICANT

Subparagraph 3.a: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Jennifer Goldstein Administrative Judge

FOOTNOTES

AG, effective June 8, 2017. My decision would be the same if the case was issued under the previous AG. Applicant was provided with a copy of the new AG prior to the hearing, and permitted time after the hearing to submit further argument based on the new guidelines. (Tr. 4-6.)