KEYWORD: Guideline E
DIGEST: Applicant, who is married, had an extra-marital affair and as a result, he fathered a
child.  While Applicant revealed the affair and his child to the government, his wife remained
unaware of them and Applicant had used his mother’s address when corresponding with the
government about his clearance.  The Judge concluded that Applicant’s revelation of the affair to
the government failed to mitigate the security concerns arising out of Applicant’s wife’s lack of
knowledge.  Such conclusion is sustainable.  Adverse decision affirmed.
CASENO: 07-16240.a1
DATE: 10/01/2008
DATE: October 1, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-16240
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
 The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On March 24, 2008, DOHA issued a statement of reasons advising Applicant of the basis
for that decision—security concerns raised under Guideline E (Personal Conduct) of Department of
Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive).  Applicant requested a hearing.
On June 30, 2008, after the hearing, Administrative Judge John Grattan Metz, Jr., denied Applicant’s
request for a security clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and
E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s unfavorable clearance
decision is arbitrary, capricious, or contrary to law.
The Judge made the following factual findings: Applicant is 42 years old and is an employee
of a Defense contractor.  Applicant is married, and he and his wife have two children, ages 13 and
14.  Applicant had an extra-marital affair with an old friend between late 2003 and late 2004, and
at that time he fathered a child who was born in January 2005.  No one is aware of the affair and the
paternity of the child except the mother of the child, although Applicant is listed as the child’s father
on the birth certificate.  Applicant sees the child monthly and makes a $1,000 cash deposit in the
child’s mother’s bank account monthly to cover child care expenses. At present, there is no formal
agreement governing child support, although Applicant agrees that the child’s mother could seek a
court order or other formal agreement for additional support in the future.  Applicant does not want
his wife to learn of the affair and is convinced that she would divorce him if she learned of it.
Applicant’s wife was unaware of the clearance hearing, because Applicant had the papers related to
the case mailed to his mother’s address.  Applicant did not present any evidence regarding his job
performance.  
Applicant admitted the allegations against him, and those admissions were sufficient to
establish the government’s case against him.  The burden of proof then shifted to Applicant to rebut,
explain, extenuate, or mitigate the case against him.  Directive ¶ E.3.1.15.    
Applicant argues that he should have been granted a clearance because he demonstrated
honesty and trustworthiness by revealing his affair and his illegitimate child.  He states that the
government probably would not have become aware of the affair and the child if he had not
mentioned them.  While the Judge stated that Applicant was subject to coercion because of the affair
and the child, Applicant maintains that he revealed the information to the government to “mitigate
the possibility for bribery or coersion (sic).”  
Applicant testified at the hearing regarding his honesty in revealing his affair, and he stated
that he would not compromise the interests of the United States.  That was mitigating evidence for
the Judge to consider, and there is a rebuttable presumption that the Judge considered it unless he
specifically stated otherwise.  However, the presence of some mitigating evidence does not alone
compel the Judge to make a favorable security clearance.  As the trier of fact, the Judge has to weigh
the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable
evidence, or vice versa.  An applicant’s disagreement with the Judge’s weighing of the evidence, or
an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the
Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or
contrary to law.  See, e.g., ISCR Case No. 07-10454 at 2 (App. Bd. Aug. 12, 2008). 
Most of the testimony at Applicant’s hearing involved the fact that his wife was unaware of
his affair and the existence of his young son.  While Applicant revealed the affair and his young child
to the government, his wife remained unaware of them at the time of the hearing, and Applicant had
used his mother’s address when corresponding with the government about his clearance.  The
Judge’s conclusions that Applicant’s wife’s lack of knowledge was a continuing security concern
and that Applicant remained vulnerable to exploitation, manipulation, or duress in that regard are
sustainable.
Order
The Judge’s decision denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan       
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jean E. Smallin              
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board