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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------------- )       ISCR Case No. 06-07577
SSN: —–—   )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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WHITE, David M., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on May 13,
2004. On October 3, 2007, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) detailing the security concerns under Guidelines E and
D for Applicant. The action was taken under 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. 
 
Applicant acknowledged receipt of the SOR on October 9, 2007. He answered
the SOR in writing on October 19, 2007, and requested that his case be adjudicated
without a hearing. DOHA received that request on October 24, 2007. In subsequent
communication with a DOHA Department Counsel, via telephone and electronic mail on
December 14, 2007, Applicant requested a hearing before an Administrative Judge.
Department Counsel was prepared to proceed on January 23, 2008, and the case was
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assigned to me on January 25, 2008. On January 31, 2008, Applicant waived his right
to receive written notice 15 days in advance of the hearing in order to accommodate his
travel schedule and his desire for prompt resolution of his case. DOHA issued a notice
of hearing on February 1, 2008, and I convened the hearing as scheduled on February
7, 2008. The government offered exhibits (GE) 1 through 4, which were admitted
without objection. Applicant testified on his own behalf, and submitted exhibits (AE) A
through E, which were admitted without objection. Department Counsel also offered a
stipulation between the parties agreeing that GE 1 through 4 were admissible, that was
marked as Hearing Exhibit (HE) I. On February 8 and 18, 2008, Applicant submitted
signed copies of AE D and E, that were originally submitted without signatures. I
granted Applicant’s request to reopen the record and add these signed copies, without
objection by Department Counsel. DOHA received the transcript of the hearing (Tr.) on
February 19, 2008. Based upon a review of the case file, pleadings, exhibits, and
testimony, eligibility for access to classified information is denied.
Procedural and Evidentiary Rulings
Notice
At the hearing, Applicant indicated he received the hearing notice on February
14, 2008. (Tr. at 14.) I advised Applicant of his right under ¶ E3.1.8 of the Directive to 15
days notice before the hearing. Applicant confirmed his earlier election, discussed
above, and again affirmatively waived his right to 15 days notice. (Tr. at 12-14.) 
Motion to Amend SOR
Department Counsel moved to amend the SOR by changing the year in which
Applicant was alleged to have resigned and suffered revocation of his former security
clearance from “2004" to “2002." (Tr. at 58.) Applicant did not object to the motion,
which was granted in order to correct either a typographical error or misunderstanding,
and to conform the SOR allegation to the undisputed evidence. (Tr. at 59.)
Findings of Fact
In his Answer to the SOR, dated June 25, 2007, Applicant admitted all of the
factual allegations in the SOR, with explanations. The allegations are based on
admissions Applicant made in his SF 86 (GE 1), and during interviews with a Defense
Security Service Special Agent on May 1, 2007 (GE 3), and May 7, 2007 (GE 2).
Applicant’s admissions are incorporated in the following findings of fact.
Applicant is a 50-year-old Chairman and Chief Executive Officer of a start-up
corporation that is developing encryption technology for use in the government and
commercial sectors. He and his wife have been married since 1985, and have a 22-
year-old daughter. Applicant’s wife and daughter live with her parents. Applicant resides
much of the time in a distant state, where his business is located.
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For about 12 years, Applicant worked for another government agency in which
he was assigned to work in U.S. embassies abroad, and held a high-level security
clearance. During one three-year overseas assignment, Applicant developed sexual
relationships with three women who worked at the embassy. Two of them were U.S.
citizens, and those relationships involved multiple sexual encounters. The third woman
was a local-national employee with whom he had sexual intercourse only once. 
At Applicant’s next assignment in a different country, Applicant developed a long-
running sexual relationship with a 21-year-old local-national woman he met in a bar. He
soon learned that both she and her sister worked part-time as prostitutes to supplement
their income. He and the woman had sex weekly until his transfer 18 months later.
About two months after this relationship started, Applicant’s wife moved back to the U.S.
due to a medical condition. Three months later, Applicant gave the local woman a key to
his apartment. Applicant returned to this country on short visits three and five months
after his transfer. He and the woman again had sexual relations during both visits.
Applicant also paid several other prostitutes for sex while stationed in these two
countries. 
Although Applicant knew he was required to report sexual relationships with
foreign nationals to his supervisor, he chose not to do so in order to keep the matters
secret and permit the relations to continue. About a year before Applicant left the
second country, his mistress’ sister visited them at his apartment with a foreign diplomat
for purposes of introducing the two men. Applicant was also required to report this
contact. He did report the contact, but falsified the circumstances under which it took
place in order to conceal his ongoing affair. (Tr. at 51-54, 63-67, 69-71.)
Shortly after leaving the second country in 1997, Applicant admitted to his wife, in
general terms, that he had a sexual relationship with his mistress there. He promised
her that he would never have another extramarital affair, and asserts that he kept this
promise. (See GE 2 at 4; Tr. at 56.) This claim, that he kept the promise, is inconsistent
with the admitted sexual activity during his two subsequent short return visits. (GE 2 at
3; Tr. at 50-51.) Applicant has never admitted any of his other extramarital sexual
activity to his wife because it would upset her and he thinks she does not want to know.
(GE 2 at 4; Tr. at 54-56, 62-65, 84.)
About four and a half years after leaving the second country, Applicant was
required to undergo a polygraph examination in connection with renewing his clearance.
During the pre-test interview, he admitted to the 18-month relationship in the second
country, and to lying to his boss about the meeting with the foreign diplomat. He
underwent a series of debriefings and polygraph examinations, and was eventually
cleared to return to work. About nine months later, he was informed that his
employment was going to be terminated, and offered the option to resign or be fired. He
chose the former option, which became effective in October 2002. Immediately
thereafter, he founded his present company and began working to build the business.
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Applicant submitted reference letters from five individuals, including board
members and advisers of his company. They included one active-reserve and one
retired general officer, former chief information officers for two security-related agencies,
and a retired colonel who served as a career Intelligence officer. (Applicant’s response
to SOR; AE A through E; Tr. at 40-42.) Each offered a positive evaluation of Applicant’s
character. Applicant informed each person that he was seeking the letters in connection
with his hearing to try to obtain a security clearance, but he did not inform any of them
of the details leading to revocation of his former clearance in 2002. (Tr. at 47-49, 72-73.)
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 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, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The Administrative Judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶¶
2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in
the context 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 “Any doubt concerning personnel being considered for access to classified
information 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.
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.” Section 7
of Executive Order 10865 provides that “Any determination under this order adverse to
an applicant 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.” 
A person applying for access to classified information 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
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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.
Analysis
Guideline D, Sexual Behavior
AG ¶ 12 expresses the security concern:
Sexual behavior that involves a criminal offense, indicates a personality or
emotional disorder, reflects lack of judgment or discretion, or which may
subject the individual to undue influence or coercion, exploitation, or
duress can raise questions about an individual's reliability, trustworthiness
and ability to protect classified information. No adverse inference
concerning the standards in this Guideline may be raised solely on the
basis of the sexual orientation of the individual.
AG ¶ 13 describes conditions that could raise a security concern and may be
disqualifying:
(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 person is unable to stop or that may be symptomatic of a
personality disorder;
(c) sexual behavior that causes an individual to be vulnerable to coercion,
exploitation, or duress; and,
(d) sexual behavior of a public nature and/or that reflects lack of discretion
or judgment.
AG ¶ 14 provides conditions that could mitigate security concerns:
(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 good
judgment; 
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(c) the behavior no longer serves as a basis for coercion, exploitation, or
duress; and, 
(d) the sexual behavior is strictly private, consensual, and discreet.
 
Applicant engaged in multiple extramarital sexual relationships with prostitutes
and coworkers over a five to six year period that ended about ten years ago. Some of
these were one-time events, and several involved longer relationships, including one
that lasted almost two years in total. Applicant revealed only general information about
the longest relationship to his wife, and resumed the affair on two occasions after
revealing it to her and promising to remain faithful. She knows nothing about those
incidents, or any of the other relationships, and he does not want her to. He also
concealed this sexual activity from his supervisors at the time, and filed a falsified report
concerning contact with a foreign diplomat, despite his obligation to report such matters
in connection with his  security clearance. This ultimately led to revocation of his
clearance and termination of his Government employment in October 2002. Applicant
also concealed some or all of these matters from the board members and advisors to
his present company when he asked them to vouch for his character in connection with
these proceedings. This not only diminishes the evidentiary weight accorded to their
opinions of his character, but increases the number of people for whom it is important to
him to perpetuate ignorance of his past conduct.
There is no evidence from which to conclude that Applicant’s admitted solicitation
of and participation in sexual relations with multiple prostitutes, while he was married to
another woman, was criminal in the two countries where this conduct took place.
Accordingly, the Government has not established that AG ¶ 13(a) applies. Applicant
apparently was able to stop the behavior about ten years ago, and no evidence was
introduced concerning personality disorder symptoms, so AG ¶ 13(b) was not
established. 
The evidence does raise security concerns under both AG ¶¶ 13(c) and 13(d),
however. Applicant’s concealment of virtually all of this activity from his wife, his then-
supervisors, and his current colleagues, demonstrates his susceptibility to coercion,
exploitation, and duress should he be confronted by someone threatening to reveal it.
Moreover, his extensive pattern of secretive and illicit casual sexual gratification, in
violation of legal and moral obligations to both his wife and the United States
Government, reflects a serious lack of discretion and good judgment.
Applicant’s sexual conduct of concern primarily took place when he was in his
mid and late 30s, so AG ¶ 14(a) does not provide mitigation. The latter half of the
activity took place when he was living separate from his wife, a situation mirroring his
current arrangements. The only evidence that such conduct might be unlikely to recur
concerned his pledge to his wife not to further cheat on her that he admittedly violated
twice, and his self-serving declaration that he intends not to repeat such actions. This
evidence does not persuasively establish mitigation under AG ¶ 14(b), and his conduct
casts continuing doubt on his reliability, trustworthiness, and good judgment.
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Applicant’s behavior serves as an ongoing basis for coercion, exploitation and
duress because he continues to conceal it from his wife, family, and business
colleagues. Applicant persuaded five high ranking current and former Government
officials, on whom his future business prospects depend, to vouch for his character in
these official proceedings without his informing them of the nature and extent of his
conduct raising security concerns. This both reflects his ongoing concern over public
knowledge of his conduct and increases his ongoing susceptibility to coercion,
exploitation or duress by enlarging the pool of people to whom revelation of his conduct
would be damaging and embarrassing. AG ¶ 14(c) does not apply. Although much of
Applicant’s illicit sexual behavior was conducted in private, prostitution is not the type of
consensual behavior contemplated by AG ¶ 14(d), nor was any of the conduct discreet
(which means prudent or judicious). Applicant has not demonstrated that any AG ¶ 14
conditions apply to mitigate security concerns raised by his sexual behavior.  
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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.
The following will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance eligibility:
(a) refusal, or failure without reasonable cause, to undergo or
cooperate with security processing, including but not limited to
meeting with a security investigator for subject interview,
completing security forms or releases, and cooperation with
medical or psychological evaluation; and,
(b) refusal to 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.
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
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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;
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(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. 
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 sexual behavior, his deliberate lying to his supervisor about the
circumstances surrounding his meeting with his mistress, her sister, and the foreign
diplomat, and the resulting revocation of his security clearance and termination of his
Government employment raise exploitation, manipulation or duress security concerns
under AG ¶ 16(e), for the same reasons discussed above under Guideline D. These
activities, if known, would adversely affect his personal, professional, and community
standing, particularly in light of his ongoing concealment of much of the information from
his family and business associates. Independent of prostitution’s legal status in the
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foreign countries involved, it is illegal in most jurisdictions of the U.S. He knowingly
engaged in it multiple times, despite its evident potential to serve as a basis for
exploitation or pressure by the security or intelligence services of those countries while
he was performing Government duties there. The Government did not assert any other
potentially disqualifying condition under Guideline E. 
The only potentially mitigating condition relating to security concerns arising from
this ongoing vulnerability to exploitation, manipulation, or duress is AG ¶ 17(e), because
the existence of the past conduct remains of concern even if it was long ago and might
be considered unlikely to recur. Applicant has not taken any positive steps, such as
disclosure to his family and business associates, that could reduce or eliminate the
vulnerability. To the contrary, he continues to conceal most of the details from these
people to protect his desire for ongoing beneficial relationships. Applicant has not
established mitigation of security concerns raised by his personal conduct. 
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) 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’s conduct of potential
concern involved engaging in and deceptively concealing multiple extramarital sexual
incidents, some arising from relationships formed in performance of his Government
duties, and some with prostitutes, over a period of at least five years. He knowingly and
voluntarily committed and concealed each of these acts in violation of obligations to his
wife and the U.S. Government. There is no evidence of illicit sexual conduct during the
last ten years, but Applicant’s concealment of most details of his actions from his family
and business colleagues is ongoing. The only evidence of rehabilitation or permanent
behavioral change concerning the sexual behavior is Applicant’s testimony and
statement of intent to reform. The persuasiveness of his statements is weakened by his
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admission that he resumed extramarital sexual relations with his most recent mistress
during two visits to her country that he made after telling his wife about her and
promising to be faithful in the future. Even should no further illicit sexual behavior take
place, Applicant’s ongoing concealment of many of these events from family and
colleagues establishes continuing potential for pressure, coercion, exploitation, or
duress. 
Overall, the record evidence leaves me with significant questions and doubts as
to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has not mitigated the security concerns arising from sexual behavior
and personal conduct considerations. 
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, Guideline E: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
Paragraph 2, Guideline D: AGAINST APPLICANT
Subparagraph 2.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 interests of national security to grant Applicant eligibility for a
security clearance. Eligibility for access to classified information is denied.
                                             
DAVID M. WHITE
Administrative Judge