KEYWORD: Guideline E; Guideline J
DIGEST: Applicant contends that the Judge found against him on a matter not raised in the SOR
under Guideline E.  The Judge found against Applicant under allegations under both Guideline E
and Guideline J.  Her adverse determination under Guideline J is sustainable.  Adverse decision
affirmed.
CASENO: 06-11682.a1
DATE: 06/06/2007
DATE: June 6, 2007
In Re:
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SSN: ------
Applicant for Security Clearance
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ISCR Case No. 06-11682
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Philip D. Cave, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On June 26, 2006, DOHA issued a statement of reasons advising Applicant of the basis
for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline J
(Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
“If in the case of a commissioned officer . . .  the sentence of a court-martial extends to dismissal, that part of1
the sentence providing for dismissal may not be executed until approved by the Secretary concerned or by such Under
Secretary or Assistant Secretary as the Secretary concerned may designate.”  10 U.S.C.  §  871(b).  
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(Directive).  Applicant requested a hearing.  On September 29, 2006, after the hearing,
Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance.
Applicant filed a timely appeal pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raises the following issues on appeal: whether the Judge improperly applied the
relevant mitigating conditions and whole person factors; and whether the Judge’s decision is
arbitrary, capricious, or contrary to law.  Finding no harmful error, we affirm.
The Judge made the following findings of fact: Applicant is a program analyst working for
a government contractor.  He has held a security clearance since 1994.
In December 1985, Applicant entered the U.S. Marine Corps.  In 1997, he completed Officer
Candidate School and was commissioned with the rank of Second Lieutenant.  
In July 2001, Applicant was charged under the Uniform Code of Military Justice (UCMJ)
with  fraternization, conduct unbecoming an officer, sodomy, and adultery.  He entered a conditional
plea of guilty and, upon conviction, was sentenced to 165 days confinement, forfeiture of all pay and
allowances, and a dismissal from the Marine Corps.  Applicant served 139 days of confinement.  His
conviction was still in appeal, and therefore his dismissal unexecuted, at the close of the record in
this security clearance hearing.  1
In arguing the issues on appeal in his security clearance case, Applicant states that he was
advised by his military counsel prior to the security clearance hearing not to be specific in discussing
the facts underlying his court-martial.  As a consequence, the Judge concluded that his failure to
discuss the facts in detail establishes security concerns with respect to the Guideline E allegations
under Directive  ¶  E2.A5.1.1.2: “Refusal to complete required security forms, releases, or provide
full, frank and truthful answers to lawful questions of investigators, security officials or other official
representatives in connection with a personnel security or trustworthiness determination.”  Decision
at 6.   Applicant contends that the Judge found against him on a matter that was not raised in the
SOR, therefore depriving him of the due process afforded by the Directive.    
The above disqualifying condition was not the only one on which the Judge relied in reaching
her adverse conclusions under Guideline E.  Moreover, even if it is assumed for the purposes of this
appeal that Applicant’s position is correct as regards Guideline E, we nevertheless conclude that the
Judge’s adverse clearance decision is sustainable under Guideline J.  We note that the Judge’s
findings are consistent with other record evidence: that Applicant was convicted of conduct
unbecoming an officer and of adultery, the other charges having been dismissed either as part of his
plea agreement or during the UCMJ appellate process; that the facts underlying the conviction
include, at least in part, Applicant’s having offered a subordinate female Marine time off from work
in exchange for sex; and that the Navy and Marine Corps Court of Criminal Appeals (Court) held
that Applicant’s dismissal was a sentence appropriate for the offenses of which he was convicted.
See Applicant Exhibit A at 1-2.  This misconduct is serious, the Court describing it as
“Conduct [Unbecoming an Officer] is action or behavior in an official capacity which, in dishonoring or2
disgracing the person as an officer, seriously compromises the. . . person’s standing as an officer. . .”  Manual for Courts-
Martial United States, Part IV, ¶ 59(c)(2)(2000 ed.).   
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“unconscionable.”  Id. at 2.   Viewed in light of the record as a whole, we hold that the Judge’s2
adverse decision under Guideline J is neither arbitrary, capricious, nor contrary to law. 
 
Order
The Judge’s decision denying Applicant a security clearance is AFFIRMED.
Signed: Jean E. Smallin       
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields       
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody          
James E. Moody
Administrative Judge
Member, Appeal Board