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ISCR Case 08-09123.h1 — CASE

ISCR Case 08-09123.h1granted

Case Headnote

ISCR Case No. 08-09123.h1

grantedJul 1, 2008· Hon. Claude R. Heiny II· hearing

Summary

A 46-year-old former Marine Corps officer was granted a security clearance despite past issues under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The applicant had been involved in an inappropriate relationship with the wife of a former subordinate, a Marine Corps captain he had previously led, from April 2007 to August 2007, while he was married. This conduct resulted in nonjudicial punishment under the Uniform Code of Military Justice (UCMJ) and the end of his military career.

The Statement of Reasons alleged that the applicant engaged in inappropriate conduct and demonstrated poor judgment. However, the judge found that the applicant mitigated these security concerns. He acknowledged his inappropriate conduct and expressed remorse for his actions.

Furthermore, the applicant demonstrated that his relationship with the other woman began only after both parties had separated from their respective spouses. His military service record and character references also supported his reliability and trustworthiness, leading to the clearance being granted.

Why the Applicant Prevailed

The applicant acknowledged his inappropriate conduct and expressed remorse for his actions.
He demonstrated that the relationship with the other woman began only after both parties had separated from their spouses.
The applicant's military service record and character references supported his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 16(b)raisedDeliberately Providing False or Misleading Information
AG ¶ 16(d)raisedCredible Adverse Information That Raises Questions About Reliability

Mitigating

AG ¶ 17(c)appliedThe Offense Is so Minor or Occurred Under Unique Circumstances
AG ¶ 17(d)appliedThe Individual Has Acknowledged the Behavior and Taken Positive Steps

Key Rule Quoted

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

Procedural Posture

SOR issuedMar 4, 2009
Answer filedApr 29, 2009
Hearing heldAug 25, 2009
Decision dateSep 1, 2009

Cite For

Mitigation of Personal Conduct Issues Under Guideline E
Consideration of Unique Circumstances in Disqualifying Conduct
The Importance of Acknowledging Past Behavior 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.

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant engaged in inappropriate conduct by having an affair with the wife of a subordinate while still married. However, the judge ruled in favor of the applicant, concluding that the applicant mitigated the personal conduct concerns raised by the allegations.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	From April 2007 to August 2007, Applicant, while married, was involved in an inappropriate relationship with the wife of a former subordinate, a Marine Corps captain he had previously led.	For Applicant	Questionable Judgment General	—	Admitted	—	(b) omission/refusal followed advice of counsel; later cooperated fully	Credited Acknowledgment and Remorse

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: granted

The judge found that the applicant's conduct, which included an inappropriate relationship while married, was mitigated by his acknowledgment of the misconduct and the circumstances surrounding it. The judge ruled in favor of the applicant on all allegations under Guideline J, granting the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	From April 2007 to August 2007, Applicant, while married, was involved in an inappropriate relationship with the wife of a former subordinate, a Marine Corps captain he had previously led.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	—	—	—
1.a	Applicant engaged in inappropriate conduct and demonstrated poor judgment, which resulted in his receipt of nonjudicial punishment under the UCMJ, and the end of his military career.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	—	—	—

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. 08-09123 SSN: ) ) Applicant for Security Clearance )

For Government: Julie Mendez, Esq., Department Counsel For Applicant: Larry N. Burch, Esq.

December 16, 2009 ______________

STATEMENT OF CASE

______________

HEINY, Claude R., Administrative Judge:

From April 2007 to August 2007, Applicant, while married, was involved in an inappropriate relationship with the wife of a former subordinate, a Marine Corps captain he had previously led. Applicant has rebutted or mitigated the government’s security concerns under personal conduct and criminal conduct. Clearance is granted.

Statement of the Case

Applicant contests the Defense Department’s intent to deny or revoke his eligibility for an industrial security clearance. Acting under the relevant Executive Order and DoD Directive,1 the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) on March 4, 2009, detailing security concerns under personal conduct and criminal conduct.

On April 29, 2009, Applicant answered the SOR, and requested a hearing. On May 27, 2009, I was assigned the case. On June 9, 2009, DOHA issued a notice of hearing scheduling the hearing which was to be held on July 28, 2009. For good cause shown, that hearing was cancelled. On July 29, 2009, DOHA issued a notice of hearing scheduling the hearing which was held on August 25, 2009.

The government offered Exhibits (Ex.) 1 through 13, which were admitted into evidence. Applicant testified on his own behalf and submitted Exhibits A through F, which were admitted into evidence. On September 1, 2009, the transcript (Tr.) was received.

FINDINGS OF FACT

In Applicant’s Answer to the SOR, he denied the allegations in SOR ¶ 2.a. He admitted the factual allegations, with explanation, set forth in SOR ¶ 1.a. Applicant’s admissions to the SOR allegations are incorporated herein. After a thorough review of the record, pleadings, exhibits, and testimony, I make the following additional findings of fact:

Applicant is a 46-year-old who has worked as a program manager for a defense contractor since March 2008, and is seeking to obtain a security clearance. In August 1985, Applicant married for the first time a woman he met in college. (Tr. 62) The marriage ended in divorce 15 years later, in June 2003. Two sons were born of the marriage, in February 1990 and March 1996, and a daughter was born in March 1998. (Ex. 1, Tr. 84) The children are now ages 11, 13, and 19. (Tr. 62)

In 1986, Applicant joined the Marine Corps and retired from the Corps in February 2008. (Ex. F) He was a distinguished graduate at his basic communication officers’ course. (Ex. E) He was in the top 20% of his basic school and an honor student and the number one graduate of the 60 officers in his Operational Specialty School. (Tr. 64, 65) At his first assignment, he was the number one rated second lieutenant in his regiment and number two rated second lieutenant at division level. (Tr. 67) From August 1998 to May 1999, he attended the Army Command and General Staff College graduating in the top 10% of 1,500 graduates. (Tr. 91) He attended class for a master’s degree at night and in 1999 obtained his master’s degree in information technology. (Tr. 92)

In 1996, Applicant served in Bosnia. He left Bosnia to go to Liberia to conduct an evacuation of the U.S. Embassy in Monrovia. (Tr. 80) From 2002 through 2004, Applicant was requested by name to serve at the White House Military Office. (Tr. 57) In 2002, Applicant was awarded the Defense Meritorious Service Medal (DMSM). In 2004, he received his second award of the DMSM. In 2006, he was awarded the Bronze Star medal for his performance while being forward-deployed as commanding officer of a Marine Wing Communications Squadron in Iraq from January 2005 through September 2005. In 2007, he was re-deployed to Iraq, was selected for promotion to colonel, and was selected as a Marine Corps Fellow to attend a civilian university for one year. (Ex. 10) His numerous awards and medals are listed in detail on his DD Form 214. (Ex. 11)

In August 2003, Applicant remarried to an Air Force captain he had met when they both were working at the White House. (Tr. 104) She had been previously married three times and had a six-year-old son, born in July 1998. In mid-October 2004, their son was born. In late October 2004, Applicant took command of a squadron. (Tr. 131) While commanding the squadron, he normally left for work at 5:00 a.m. and returned at or after 8:00 p.m. (Tr. 109) In January 2005, Applicant deployed to Iraq for the first time and stayed there until mid-September 2005. (Tr. 110)

Three weeks after his return from Iraq, his wife was deployed to Iraq. (Tr. 114) She was deployed until March 2006. Following her deployment, Applicant found his wife to be distant, distracted, and disengaged. (Tr. 117) He sensed emotional fallout of some sort. (Tr. 118) Initially, his wife stated she had been raped. Later, she related she had had an affair with an Army colonel with whom she served while deployed.

At the time he learned of the affair, Applicant’s son was a toddler. Applicant offered to attend marriage counseling, but his wife stated it would not serve any constructive purpose. They continued to live estranged in the same house. From January 2007 through June 2007, Applicant was deployed to Iraq. During this deployment, Applicant’s wife sent him no mail, care packages, or pictures of their son. (Tr. 124) She sent a few emails related to financial matters and her need for money. While he was deployed, she sold his car. (Tr. 125)

Following the deployment, they both had a permanent change of station (PCS) and purchased a large home at the new location. They continued to be estranged, living in the same home, but no longer sleeping together. (Tr. 130)

At the squadron’s 2004 Christmas party, Applicant met a woman, the wife of a Marine Corps captain who was under Applicant’s command. From January 2005 through September 2005, while in Iraq, Applicant did not see or talk with this woman. Before returning from Iraq, the woman’s husband was deployed to Afghanistan. While her husband was overseas, the woman left the area to live with her mother in upstate New York. (Ex. D) The woman stated “she barely knew him [Applicant] at the squadron.” (Ex. 6, page 81 of 81) Applicant states from mid-October 2004, when he took command, until his TDY in January 2005, he had seen the woman twice. (Tr.133) In the spring of 2006, following the husband’s return from Afghanistan, her husband received (PCS) orders to New York for recruiting duty. In May or June 2006, the woman had problems with the transportation of her household goods and sought Applicant’s assistance. (Tr. 134, Ex. 6, page 77 of 81) Applicant took her to the administration section, where she was helped with her transportation problem. The encounter lasted ten minutes. The next time he saw the woman was in August 2007. After the spring of 2006, the woman’s husband was no longer a subordinate or within Applicant’s command. (Tr. 139)

Following the PCS, the woman and her husband were estranged and slept in separate rooms for a year before she moved back to her mother’s home, which was more that 150 miles from her husband’s location, in May 2007. Around Easter 2007, Applicant received an email that included pictures of the woman’s daughter. At that time, the woman had the habit of emailing photos of her daughter to everyone. (Ex. 6, page 80 of 81) At the time, the woman did not realize Applicant was no longer at his stateside location, but was deployed to Iraq. As a commander, Applicant responded to the email with a couple of sentences of normal small talk thanking her for the email and asking about her and her husband.

A few days later, the woman sent an email saying that she and her husband’s marriage was not going very well, that she and her husband were separated, and she had moved back in with her mother. The woman stated her husband’s second deployment had led to the end of the marriage. (Ex. D) Applicant expressed the state of his marriage. Applicant’s son and the woman’s daughter were approximately the same age. (Tr. 138) The emails increased in frequency until they became daily.

In June 2007, Applicant returned from his overseas deployment. With the marriage ending, his wife hired a private detective to hack into Applicant’s private computer. She learned of the emails between Applicant and the other woman. She also learned that in August 2007, Applicant was going to visit his children in another state and would be spending the weekend at that location. She learned Applicant intended to meet the other woman. The other woman had relatives near where Applicant’s children lived and where Applicant would be visiting. Applicant stated the initial plan was to meet, talk, have dinner, and the woman would then leave to return to stay with her relatives. Applicant’s wife had the private detective follow her husband to secure photographs of the meeting with the other woman.

The woman’s arrival was delayed and after a late dinner she decided not to leave to drive to her relatives, but decided to spend the night with Applicant in his hotel room. The woman states she had not met with Applicant until after she had obtained a separation agreement from her husband. (Ex. D) Prior to their meeting, the woman had presented her husband with legal separation documents. (Ex. 6, page 79 of 81)

The detective took pictures of the two in a parking lot. (Ex. 6) Upon receiving the detective’s report, Applicant’s wife immediately called the woman’s husband and told him about the meeting. Even though they were separated, the woman’s husband immediately called his wife and started to harass her. (Tr. 158) When the woman asked Applicant what she should do, Applicant told her to simply deny everything to her husband and to not answer her husband’s phone calls. (Tr. 155) Applicant told the woman to deny the meeting. The husband drove to Applicant’s wife’s location to view the photographs. Applicant’s wife then called Applicant’s command to inform them of the events.

In mid-August 2007, Applicant was interviewed about the meeting with the other woman. Initially, Applicant denied meeting with the woman, but before the interview ended he admitted they had met and kissed. (Tr. 151) Following the interview, Applicant questioned his wife about what had occurred and how anyone could have obtained his personal emails. His wife denied all knowledge and speculated that maybe someone had come into their home and hacked into his computer. Applicant stated that if he ever came home and found a stranger in his home messing with his computer, he would “take them out.” (Tr. 153) The hypothetical scenario response referred to no one in particular and no one specifically was threatened.

In August or September 2007, Applicant’s wife filed for separation. (Tr. 218) Applicant’s wife’s main concern was payment of the house mortgage. Applicant and his then wife have since divorced and he is paying child support. (Tr. 224) In February 2008, Applicant’s wife was arrested and charged with assault after she threw coffee on Applicant. (Tr. 159) His wife now has a live-in boyfriend. (Tr. 166) Applicant was ordered to have no contact with the other woman. In March 2008, after Applicant had separated from the Marine Corps, Applicant resumed contact with the woman. Applicant and the other woman plan to live together starting in the summer of 2010. (Ex. D)

Applicant’s Marine Corps Fellowship was immediately canceled as was his promotion to colonel. In November 2007, Applicant received nonjudicial punishment for violations of Article 107 (False official statement); Article 133 (Conduct unbecoming an officer); Article 134 (Obstructing justice); and Article 134 (Communicating a treat) of the Uniform Code of Military Justice. Applicant entered into a Memorandum of Agreement (Ex. 5) accepting nonjudicial punishment and setting forth the offenses. The Article 107 violation resulted from a statement given by Applicant in August 2007, where he initially denied meeting with the woman and stated he had not shared a room with the woman during a weekend two weeks earlier. The Article 133 violation was the result of the inappropriate relationship. The Article 134 violation resulted from Applicant asking the woman to lie about their relationship if questioned by her husband. The second Article 134 specification related to Applicant stating he would harm any stranger he found in his home hacking into his computer and private emails.

Applicant was found to have committed the offenses. During the proceeding, Applicant stated he understood his actions were reprehensible. He was embarrassed by his conduct and regretted the decisions he had made. (Ex. 8) Applicant realized his military career was over and he should “take his lumps” and get out of the Marine Corps. He chose not to appeal the punishment. He received a punitive Letter of Reprimand (LOR) and a forfeiture of $2,500 pay for two months, a punishment he did not appeal. (Ex. 7)

In October 2007, Applicant had submitted a voluntary retirement request in lieu of further administrative separation processing for cause. (Ex. 2, 10) In November 2007, Applicant submitted matters for consideration asking that he be retired at his current grade. Applicant’s retirement request was approved; however, he was retired in the grade of major. In February 2008, he separated from the Marine Corps. (Ex. 11)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which must be considered 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), 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 access to classified information 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

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 applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion as to obtaining a favorable security 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 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

Personal Conduct

The Directive sets out various factors relevant to an applicant's personal conduct that may be potentially disqualifying. Paragraph 15 of the Adjudicative Guidelines (AG) states a concern where there is 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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.”

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying:

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

(b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative;

(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 person may not properly safeguard protected 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 person may not properly safeguard protected 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 other government protected information:

(2) disruptive, violent, or other inappropriate behavior in the workplace;

(3) a pattern of dishonesty or rule violations; and

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

(e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group;

(f) violation of a written or recorded commitment made by the individual to the employer as a condition of employment; and,

(g) association with persons involved in criminal activity.

Starting in April 2007 and ending in August 2007, Applicant engaged in inappropriate conduct and demonstrated poor judgment, which resulted in his receipt of nonjudicial punishment under the UCMJ, and the end of his military career. His judgment and reliability were questionable. Applicant exercised poor judgment, lack of candor, and dishonesty. He was unwilling to comply with rules and regulations. When asked about what had occurred the weekend in question, Applicant first denied any wrongdoing and later, during the same interview, admitted he had met and kissed the woman. Applicant’s actions involve three major mistakes. First, the other woman was the wife of a fellow Marine. Second, he saw this woman before his and the other woman’s marriage had ended. Third, he was dishonest about his relationship with the woman. The woman had a separation agreement when they met and is now divorced. Applicant is also now divorced. His inappropriate conduct ended his military career, impacted his dignity, and affected his military retirement. A lack of love can cause people to do things they would not ordinarily do, as does a lack of love. Applicant was in a difficult position and made an inappropriate decision. He tried to maintain the peace with his wife, to live estranged from his wife in the same home, and to meet with the other woman. He should have ended his marriage prior to seeing the other woman. His conduct with the wife of a fellow Marine was, as Applicant stated, reprehensible. AG ¶ 16(b) and ¶ 16(d)(1) apply.

Applicant realizes his conduct was inappropriate. He acknowledged during the Article 15 proceeding that his actions were reprehensible.

AG ¶ 17 provides conditions that could mitigate security concerns:

(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 improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. 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 caused 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 activity 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’s nonjudicial punishment contained four allegations. AG ¶ 17(a) partially applies to his statements made during his mid-August 2007 interview. Applicant initially denied meeting with the woman, but before the interview ended he admitted they had met and kissed. He was charged with false official statement. Applicant has adequately explained the obstruction of justice charge. Applicant told the other woman not to answer her then husband’s phone calls and to deny to her husband that they had been together. His conduct does not rise to an obstruction of justice charge. He also adequately explained the communicating of a threat. Applicant stated he would harm any stranger he found in his home hacking into his computer and private emails. This general comment was directed at no specific individual, but was a response to a hypothetical scenario. No one specifically was threatened.

The Article 133 violation was the result of the inappropriate relationship. Applicant knew his conduct was inappropriate, that his military career was over, that he should take his punishment, and leave the service. He knew there was no reason to appeal this nonjudicial punishment. For his inappropriate conduct, he was strongly punished. The $2,500 loss of pay for two months was not as significant as his loss of the educational fellowship, the impact on his dignity, the ending of his career, and being separated as a major.

AG ¶ 17(b) does not apply because failure to cooperate, omission, or concealment was not caused or significantly contributed to by improper or inadequate advice. AG ¶ 17(c) does not apply because the conduct was not minor.

AG ¶ 17(d) applies because Applicant has acknowledged his guilt and acknowledged his behavior was inappropriate and taken positive steps to eliminate the inappropriate behavior. Since Applicant is no longer in the service, conduct unbecoming an officer cannot recur. Applicant will not again face punishment under the UCMJ. Applicant knew his conduct was inappropriate and he accepted his punishment and left the service.

Having left the service, Applicant has taken positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior. Applicant and the other woman are now divorced and free to have a relationship. AG ¶ 17(e) applies because the affair has been revealed, which reduces or eliminates vulnerability to exploitation, manipulation, or duress.

AG ¶ 17(f) does not apply because the information was substantiated and AG ¶ 17(g) does not apply because Applicant was not associated with persons involved in criminal activity. Guideline J, Criminal Conduct

Revised Adjudicative Guideline (AG) ¶ 30 articulates the security concerns relating 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 conditions that could raise a security concern and may be disqualifying:

(a) a single serious crime or multiple lesser offenses;

(b) discharge or dismissal from the Armed Forces under dishonorable conditions;

(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted;

(d) individual is currently on parole or probation;

(e) violation of parole or probation, or failure to complete a court-mandated rehabilitation program; and

(f) conviction in a Federal or State court, including a court-martial of a crime, sentenced to imprisonment for a term exceeding one year and incarcerated as a result of that sentence for not less than a year.

In November 2007, Applicant received nonjudicial punishment for violation of the UCMJ. Applicant entered into a Memorandum of Agreement (Ex. 5) accepting nonjudicial punishment and setting forth the offenses. AG ¶ 31 (c) applies.

AG ¶ 32 provides conditions that could mitigate security concerns:

(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;

(b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person's life;

(c) evidence that the person did not commit the offense; (d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement; and

AG ¶ 32(a) applies to Applicant’s inappropriate conduct. It has only been two years since the behavior ended, but it happened under such unusual circumstances that it is unlikely to recur. Applicant is now divorced as is the other woman. He is no longer in the military and no longer subject to the UCMJ. The conduct occurred in part because of pressures of a bad marriage and those pressures are no longer present in Applicant’s life. However, I do not find that Applicant was pressured or coerced into committing the acts. AG ¶ 32(b) does not apply. None of the other mitigating factors apply.

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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(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 the facts and circumstances surrounding this case. Applicant had a relationship with the wife of a fellow Marine. He accepted that his conduct was inappropriate and accepted his punishment for his action. He has been punished for his conduct. Applicant knew his military career was over and submitted a voluntary retirement request. He is no longer in the military. Neither Applicant nor the other woman are currently married. They are free to resume a relationship, which violates no law.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his personal conduct and criminal conduct.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Personal Conduct: FOR APPLICANT

Subparagraph 1.a: For Applicant

Paragraph 2, Criminial Conduct: FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

_______________________ CLAUDE R. HEINY II Administrative Judge

FOOTNOTES

1 Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.