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ISCR Case 15-02407.h1 — CASE

ISCR Case 15-02407.h1denied

Case Headnote

ISCR Case No. 15-02407.h1

deniedJul 27, 2017· Hon. Richard A. Cefola· hearing

Summary

A 59-year-old defense contractor employee was denied a security clearance under Guideline E (Personal Conduct) due to concerns about his reliability and trustworthiness. The applicant had engaged in extramarital affairs with approximately 15 women since about 2003, many of whom were foreign nationals. He used an online alias for this conduct, and his last affair occurred two weeks before his hearing.

A significant factor in the denial was that the applicant's wife was unaware of his extramarital activities, and he expressed a desire to keep her uninformed. Furthermore, the applicant's security clearance had been revoked in 2012 for similar conduct, indicating a pattern of behavior.

The administrative judge determined that these actions, particularly the repeated undisclosed conduct and the involvement with foreign nationals, raised substantial questions about the applicant's judgment and integrity, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant engaged in extramarital affairs with approximately 15 women, many of whom were foreign nationals.
The applicant's wife was unaware of his extramarital conduct, and he did not wish her to know.
The applicant's security clearance had previously been revoked in 2012 for similar conduct.

Conditions Referenced

Disqualifying

E2raisedPersonal Conduct
E3raisedPersonal Conduct
E4raisedPersonal Conduct

Key Rule Quoted

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

Procedural Posture

SOR issuedMay 5, 2016
Answer filedMay 28, 2016
Hearing heldOct 7, 2016
Decision dateJul 27, 2017

Cite For

Disqualifying Conduct Under Guideline E Due to Personal Conduct Issues
Impact of Extramarital Affairs on Security Clearance Eligibility
Failure to Mitigate Security Concerns Related to Personal Conduct

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 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 under Guideline E, specifically regarding the applicant's engagement in extramarital affairs and the concealment of this conduct from his spouse. The applicant's actions raised significant concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Since about 2003, Applicant has been using an alias online to engage in extramarital affairs with about 15 women, many of them foreign nationals. In 2012, Applicant’s security clearance was revoked as the result of such conduct. His last extramarital affair was about two weeks prior to his hearing. Applicant’s wife is unaware of his extramarital affairs, and he does not wish her to know of their existence.	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.

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. 15-02407 ) ) Applicant for Security Clearance )

For Government: Jeff Nagel, Esq., Department Counsel For Applicant: Arran Treadway, Esq., Applicant’s Counsel

July 27, 2017 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On May 5, 2016, 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 Guideline E.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.

Applicant answered the SOR on May 28, 2016, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on August 19, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on August 31, 2016, scheduling the hearing for October 7, 2016. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 through 3, which were admitted without objection. Applicant testified on his own behalf and offered Applicant’s Exhibits (AppX) A through C, which were also admitted without objection. The record was left open until November 7, 2016, for receipt of additional documentation. Applicant’s closing argument was received on that date. DOHA received the transcript of the hearing (TR) on October 11, 2016.

FINDINGS OF FACT

Applicant denied to the one allegation of the SOR. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 59-year-old employee of a defense contractor. (GX 1 at page 5.) He has been employed with the defense contractor since 1991. (GX 1 at page 10.) He lost his security clearance in 2012 for “Alleged inadequate foreign contact reporting and disqualifying sexual behavior.” (GX 1 at page 44.) He has been married since 1992. (GX 1 at pages 14–15.)

Guideline E – Personal Conduct

1.a. Since about 2003, Applicant has been using an alias online to engage in extramarital affairs with about 15 women, many of them foreign nationals. (TR at page 48 line 17 to page 70 line 6.) In 2012, Applicant’s security clearance was revoked as the result of such conduct. (TR at page 42 line 7 to page 43 line 16.) His last extramarital affair was about two weeks prior to his hearing. (TR at page 48 line 17 to page 70 line 6.) Applicant’s wife is unaware if his extramarital affairs, and he does not wish her to know of their existence. (TR at page 38 line 9 to page 39 line 17, and at page 46 line 16 to page 48 line 21.)

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 to be used 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 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.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the “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 applies for national security eligibility seeks to enter 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 (EO) 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. Three are potentially applicable in this case:

(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information;

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of:

(1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information;

(2) any disruptive, violent, or other inappropriate behavior;

(3) a pattern of dishonesty or rule violations;

(4) evidence of significant misuse of Government or other employer's time or resources; and

(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 has engaged in; and continues to engage in, extramarital relationships. Of particular concern is the fact that his wife does not know of his conduct, and that Applicant does not want her to know of his conduct. The evidence is sufficient to raise these disqualifying conditions.

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

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

(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;

(f) the information was unsubstantiated or from a source of questionable reliability; 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.

None of these are applicable.

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 Guideline E in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment.

Except for losing his security clearance in 2012, Applicant has a fairly positive history of working in the defense industry. (AppX B.) He performs well at his job. (AppX C.)

Overall, the record evidence leaves me with questions and 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 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

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 national security eligibility. Eligibility for access to classified information is denied.

________________________ Richard A. Cefola Administrative Judge

FOOTNOTES

1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines, effective September 1, 2006.