KEYWORD: Guideline E
DIGEST: The Judge based his ultimate holding upon the extent to which Applicant’s conduct
with a particular woman (W) evidences poor judgment or subjects him to the possibility of
duress, rather than simply upon the nature of the relationship itself.  The Board finds no reason to
disturb the Judge’s conclusion that the record as a whole in Applicant’s case raises Guideline E
security concerns.   Hearing Office decisions are binding neither on other Hearing Office Judges
nor on the Board.   The Judge articulated a satisfactory explanation for his decision including a
rational connection between the facts found and the choice made. The Judge explicitly
considered Applicant’s stellar 40-year career.  However, he reasonably explained why
Applicant’s recent conduct with W weighs more heavily than his prior good record.  The Judge’s
conclusion that Applicant had failed to meet his burden of persuasion as to mitigation, either
under the pertinent mitigating conditions or the whole-person factors, is sustainable on this
record. After the Government presents evidence raising security concerns, the burden shifts to the
applicant to rebut or mitigate those concerns. Adverse decision affirmed.
CASENO: 08-03960.a1
DATE: 04/13/2009
DATE: April 13, 2009
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-03960
APPEAL BOARD DECISION
2
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Department Counsel
FOR APPLICANT
James H. Shoemaker, Jr., Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 19, 2008, DOHA issued a statement of reasons (SOR) 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 January 29, 2009, after the hearing, Administrative Judge LeRoy F.
Foreman denied Applicant’s request for a security clearance.  Applicant appealed pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal:  whether the Judge erred in concluding that
the Government had presented substantial evidence of Guideline E security concerns; whether the
Judge erred in concluding that Applicant had failed to mitigate any security concerns contained in
his case; and whether the Judge’s whole person analysis was erroneous.  Finding no error, we affirm.
The Judge made the following unchallenged findings of fact: Applicant is a 64-year-old
employee of a defense contractor.  He retired from the U.S. Marine Corps in the 1980s, having risen
to the grade of E-9.  He is married, but he and his wife have been legally separated since 2005.
Applicant currently lives with a woman (W).  He met her on a computer network in May
2005, and they began a romantic relationship the following July, prior to his separation from his
spouse.  Applicant’s wife is aware of the relationship.
W has a lengthy criminal record.  Between 1994 and 2004, she was arrested and/or convicted
of such offenses as theft, receiving stolen property, forgery, illegal possession of a firearm, having
a concealed firearm, possessing a firearm with an obliterated serial number, unauthorized use of a
motor vehicle, burglary, distribution of methamphetamine, possession of drug paraphernalia, bank
fraud, and violation of probation.  In 2005, she stated to Applicant that, despite treatment for drug
addiction, she had relapsed and had used crack cocaine.  Applicant attributed her criminal record to
her drug addiction.  After the 2005 incident, she underwent detoxification and attended narcotics
anonymous (NA) for 90 consecutive days.  She has not attended NA since then, nor has she received
other counseling or treatment.  Applicant stated that W is “a changed person,” (Decision at 4) and
that he would know if she relapsed.  Were that to occur, Applicant stated that he would place her in
a rehabilitation program.  
See, e.g., Applicant Exhibit A, a letter of recommendation provided by Applicant’s supervisor.  “In regard to1
his personal relationship with [W], [Applicant] early on advised me of her addiction and I am well aware of the
situation.”   See also Tr. at 82, testimony by a friend and colleague: “When [Applicant] first met the young lady . . . we
got together for lunch and he told me what was going on and that he was involved with her and that she had some
problems and he wanted to help her along the way.”  Neither of these persons unequivocally demonstrates awareness
of the full extent of W’s criminal history. 
See Directive ¶ E2.16(d): “credible adverse information that is not explicitly covered under any other guideline2
. . . which supports a whole-person assessment of questionable judgment[.]” Directive ¶ E2.16(e): “ personal conduct,
or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress,
such as . . . engaging in activities which, if known, may affect the persons’ personal, professional, or community
standing[.]” Directive ¶ E2.16(g): “association with persons involved in criminal activity.”  See also ISCR Case No. 07-
00852 at 4 (App. Bd. May 27, 2008): “The disqualifying conditions listed under each Guideline are illustrative only, not
exhaustive and exclusive.  In analyzing cases before them, Judges must be guided by common sense and with a view
toward making a reasoned determination consistent with the interests of national security.  The general security concern
raised by Guideline E is that “[c]onduct involving questionable judgment . . . can raise questions about an individual’s
reliability, trustworthiness and ability to protect classified information.”  
3
  The Judge concluded that Applicant’s having developed and maintained a long-term
relationship with a person having such an extensive criminal record evidences questionable
judgment.  Additionally, he stated that, while Applicant had disclosed his affair to his wife and to
his immediate supervisor, “the record does not reflect whether he disclosed the full extent of [W’s]
criminal record.  In the broader community, including the military community with whom he must
interact, it is likely that his personal and professional standing would be adversely affected.”   Id.1
at 7.  Furthermore, he stated that under the facts of this case, Applicant has made himself vulnerable
to duress or exploitation, either by W or his wife.  The Judge noted that Applicant’s claim that his
wife actually agreed to his relationship with W, rather than merely having acquiesced, is not
corroborated by testimony or other evidence from her.  Applicant argues on appeal that the Judge
erred in relying upon the extramarital nature of his relationship with W.  However, after reading the
Judge’s decision as a whole, the Board concludes that the Judge based his ultimate holding upon the
extent to which Applicant’s conduct with W evidences poor judgment or subjects him to the
possibility of duress, rather than simply upon the nature of the relationship itself.  Considering the
record as a whole, the Board finds no reason to disturb the Judge’s conclusion that the record as a
whole in Applicant’s case raises Guideline E security concerns.   2
In support of his appeal, Applicant points to decisions by the Hearing Office, which he argues
support his request for a favorable determination.  The Board gives due consideration to these cases.
However, each case “must be decided upon its own merits.”  Directive ¶ E2.2.3.  Moreover, Hearing
Office decisions are binding neither on other Hearing Office Judges nor on the Board.  See ISCR
Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008).  After reviewing the record, the Board concludes
that the Judge examined the relevant data and articulated a satisfactory explanation for his decision,
“including a ‘rational connection between the facts found and the choice made.’”  Motor Vehicle
Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  
4
The Judge explicitly considered Applicant’s “stellar 40-year career.”  Decision at 9.
However, he reasonably explained why Applicant’s recent conduct with W weighs more heavily than
his prior good record.  The Judge’s conclusion that Applicant had failed to meet his burden of
persuasion as to mitigation, either under the pertinent mitigating conditions or the whole-person
factors, is sustainable on this record.  See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)
(“The general standard is that a clearance may be granted only when ‘clearly consistent with the
interests of the national security’”).  See also Directive ¶ E3.1.15 (After the Government presents
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.)
Order
The Judge’s adverse security clearance decision 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