KEYWORD: Guideline D; Guideline E
DIGEST: The Judge found that Applicant is married and having an affair with a married woman.
Neither of them has told their spouse of the affair.  Also, Applicant’s business partner is not
aware of the relationship.  Applicant’s conduct left the Judge ample to doubt Applicant’s
eligibility to protect classified or sensitive information.  Adverse decision affirmed.
CASENO: 08-01431
DATE: 05/28/2009
DATE: May 28, 2009
In Re:
------
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 08-01431
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Melvin A. Howry, Esq., Department Counsel
FOR APPLICANT
Charles T. Mathews, Esq.
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On July 30, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision–security concerns raised under Guideline D (Sexual Behavior) and Guideline
E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  Applicant requested a hearing.  On March 5, 2009, after the hearing, Administrative
Judge Wilford H. Ross 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 his application
of the pertinent mitigating conditions and whether the Judge’s whole-person analysis was erroneous.
Finding no error, we affirm.
The Judge found that Applicant, who is married, has been conducting an extramarital affair
with A, who is also married.  Applicant has given A $16,000 to enable her to purchase a home.
Neither Applicant’s spouse nor A’s spouse is aware of the affair.  Applicant’s business partner does
not know about the affair either.  The affair was ongoing at the close of the record.  In the Analysis
portion of his decision, the Judge concluded that Applicant’s circumstances render him subject to
coercion.  
Applicant specifically argues that he has nothing to hide with his extramarital relationship.
However, the Judge found that Applicant’s relationship is not known to his wife, his business
partner, or his girlfriend’s husband.  These sustainable findings undermine Applicant’s claims on
appeal.  Also, Applicant says that it was “contradictory for Judge Ross to criticize” Applicant for
having dinner with an employee when on a trip with his girlfriend.  Applicant’s argument is not
persuasive.  It is Applicant’s conduct which appears contradictory.  On the one hand he has chosen
not to disclose the information to all the interested parties, on the other hand he is not being discreet
about the situation.  Applicant’s conduct left ample room for the Judge to doubt Applicant’s
eligibility to protect classified or sensitive information.  
After reviewing the record, the Board concludes that the Judge examined the relevant data
and articulated a satisfactory explanation for the 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)).  Applicant contends that Applicant did not properly weigh the mitigating
evidence, i.e., the testimony of two witnesses concerning Applicant’s susceptibility to coercion and
his fitness for a security clearance.  The record does not support a conclusion that the Judge weighed
the evidence in a manner that is arbitrary, capricious, or contrary to law.  See, e.g., ISCR Case No.
06-17409 at 3 (App. Bd. Oct. 12, 2007).    The Judge’s decision that “it is not clearly consistent with
the national interest to grant Applicant eligibility for a security clearance” is sustainable on this
record.  Decision at 8.  See also 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’”). 
3
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: Jeffrey D. Billett                    
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                      
James E. Moody
Administrative Judge
Member, Appeal Board