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ISCR Case 02-21726.h1 — CASE

ISCR Case 02-21726.h1denied

Case Headnote

ISCR Case No. 02-21726.h1

deniedJan 23, 2004· Hon. Darlene Lokey Anderson· hearing

Summary

A 37-year-old married Business Manager for a defense contractor was denied a security clearance under Guideline E (Personal Conduct) due to his failure to disclose marital infidelity during a government interview. The Statement of Reasons alleged that the applicant did not disclose his marital infidelity when questioned about improper moral conduct by the Defense Security Service (DSS). It further stated that the applicant had not informed his wife about one of his affairs, which subjected him to potential coercion, exploitation, or duress, thereby rendering him susceptible to blackmail that could place national security at risk.

The judge found that the applicant's concealment of his marital infidelity during the initial DSS interview increased his vulnerability to coercion or blackmail. This concealment was deemed to pose a risk to national security.

No mitigating factors were found applicable to address the government's concerns, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant concealed marital infidelity during his initial interview with DSS.
The applicant's failure to disclose his affairs increases his vulnerability to coercion or blackmail.
No mitigating factors were applicable to counter the government's concerns.

Conditions Referenced

Disqualifying

E.4raisedPersonal ConductThe applicant's concealment of information increases vulnerability to coercion, exploitation, or duress.

Key Rule Quoted

“The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk.”

Procedural Posture

SOR issuedAug 23, 2003
Answer filedSep 15, 2003Applicant elected for a written record determination.
Hearing held—No hearing; case determined on written record.
Decision dateJan 23, 2004

Cite For

Vulnerability to Coercion Due to Personal Conduct Under Guideline E
Failure to Disclose Relevant Personal Conduct During Security Clearance Interviews
Lack of Applicable Mitigating Factors in Personal Conduct Cases

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 allegations of personal conduct, specifically regarding the concealment of marital infidelity during a security interview. The applicant's failure to disclose this information raised concerns about vulnerability to coercion and blackmail. Mitigation was not established, leading to a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	During the Applicant's initial interview with the Defense Security Service, (DSS) when questioned about improper moral conduct, the Applicant failed to disclose his marital infidelity.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Sexual Behavior	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
1.b	The Applicant has not told his wife about one of his affairs, which subjects him to coercion, exploitation or duress rendering him susceptible to blackmail that could place the national security at risk.	Against Applicant	Concealment Creating Coercion VulnerabilityFOUND DELIBERATE	—	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—

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

DATE: January 23, 2004 In Re: ----------------------- SSN: ---------------- Applicant for Security Clearance ISCR Case No. 02-21726 DECISION OF ADMINISTRATIVE JUDGE DARLENE LOKEY ANDERSON

SYNOPSIS Applicant's attempt to conceal his marital infidelity from the government during his initial interview with DSS, when specifically questioned about it, and the fact that he has not told his wife about one of his affairs, subjects the Applicant to coercion, exploitation or duress rendering him susceptible to blackmail that could place the national security at risk. Mitigation has not been shown. Clearance is denied.

STATEMENT OF CASE

On August 23, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as amended) issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. The Applicant responded to the SOR in writing on September 15, 2003, in which he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) to the Applicant on October 29, 2003. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on November 3, 2003, and he submitted no reply. The case was assigned to the undersigned for resolution on December 11, 2003.

FINDINGS OF FACT

The Applicant is 37 years old and married. He is employed as a Business Manager by a defense contractor. He is applying for a security clearance in connection with his employment. The Government opposes the Applicant's request for a security clearance, on the basis of allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR: Paragraph 1 (Guideline E - Personal Conduct). The Government alleges that the Applicant is ineligible for clearance because his conduct involves questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or an unwillingness to comply with rules and regulations. During the Applicant's initial interview with the Defense Security Service, (DSS) when questioned about improper moral conduct, the Applicant failed to disclose his marital infidelity. The Applicant explained that the reasons he did not reveal the information is because he felt uncomfortable disclosing his infidelity to a female interviewer, because he was trying to protect the reputation of woman A, with whom he had an affair, and because he had made a commitment to her that he would not reveal the information to anyone. He further claims that he did not remember his affair with woman B. (See, Government Exhibit 3). Later, in his sworn statement to DSS dated May 28, 2003, the Applicant explains that he actually had two extramarital affairs, one with woman A from 1995 until 1996 and another with woman B in 1995. (See, Government Exhibit 5). The Applicant told his wife about his affair with woman A. He did not tell her about his affair with woman B. The Applicant's wife is unaware of the Applicant's affair with woman B. The Applicant knew or should have known about his affairs and should have revealed his extramarital affairs during his initial interview with DSS when questioned by the investigator. The Applicant's excuses for not revealing the information are not acceptable. The Applicant deliberately concealed this information from the government and he cannot be found trustworthy.

POLICIES

Enclosure 2 of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case: Guideline E (Personal Conduct) Condition that could raise a security concern: 4. Personal Conduct or concealment of information that increases an individual's vulnerability to coercion, exploitation or duress, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail. Condition that could mitigate security concerns: None. In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors: a. The nature and seriousness of the conduct and surrounding circumstances b. The circumstances surrounding the conduct, to include knowledgeable participation c. The frequency and recency of the conduct d. The individual's age and maturity at the time of the conduct e. The voluntariness of participation f. The presence or absence of rehabilitation and other pertinent behavior changes g. The motivation for the conduct h. The potential for pressure, coercion, exploitation or duress i. The likelihood of continuation or recurrence. The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information. The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination." The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

CONCLUSION

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in personal conduct or concealment of information that increases an individual's vulnerability to coercion, exploitation or blackmail. This personal conduct demonstrates poor judgment or unreliability. It is the Government's responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant's conduct and the continued holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or outweigh the Government's case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him or her a security clearance. In this case the Government has met its initial burden of proving that the Applicant has engaged in personal conduct or concealment of information that increases his vulnerability to coercion, exploitation or duress. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility. Considering all of the evidence, the Applicant has failed to introduce persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case. The evidence shows that the Applicant sought to conceal his marital infidelity from the government during his initial interview with DSS. (Guideline E). The Applicant later disclosed the information to the Government in his sworn statement dated May 28, 2003, but he has not told his wife about one of his extra-marital affairs. The Applicant's personal conduct makes him vulnerable to coercion, exploitation, or duress and may render him susceptible to blackmail. None of the mitigating factors apply. As a result, the Applicant poses a potential security risk and cannot be trusted with the national secrets. Accordingly, Guideline E (Personal Conduct) is found against the Applicant. On balance, it is concluded that the Applicant has failed to overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding for the Applicant as to the factual and conclusionary allegations expressed in Paragraph 1 of the Government's Statement of Reasons.

FORMAL FINDINGS

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: Against the Applicant. Subpara. 1.a.: Against the Applicant. Subpara. 1.b.: Against the Applicant.

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant. DARLENE LOKEY ANDERSON Administrative Judge

FOOTNOTES

02-21726.h1 FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-21726.h1.html[6/24/2021 11:03:06 AM] 02-21726.h1