Item 6.1 Item 4.2 1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) -----------, ---------------- ) ISCR Case No. 08-07613 SSN: ------ ---- -------- ) ) Applicant for Security Clearance ) Appearances For Government: Tom Coale, Esquire, Department Counsel For Applicant: Pro Se ______________ Decision ______________ WHITE, David M., Administrative Judge: Applicant conducted a clandestine extramarital affair with an Ecuadoran woman he met while serving there in 2002, returning to see her about twice a year and providing regular financial support. He concealed this information from his family and professional associates, and omitted any mention of her on his application to upgrade his clearance. Based upon a review of the case file, pleadings, and exhibits, eligibility for access to classified information is revoked and denied. Applicant submitted his Security Clearance Application (SF 86), on March 2, 2006, while employed as a civilian Government employee. On March 22, 2007, the Air1 Force Central Adjudication Facility granted him a Secret clearance. On January 25, 2008, after being hired by a Government contractor, he submitted his Electronic Questionnaires for Investigations Processing (e-QIP), seeking to upgrade his clearance to Top Secret. On January 15, 2009, the Defense Office of Hearings and Appeals2 Item 1.3 Item 3.4 The Government submitted six items in support of the allegations, and five Government publications to5 support an administrative notice request concerning Ecuador. Item 4.6 Item 3.7 2 (DOHA) issued a Statement of Reasons (SOR) to Applicant, detailing security concerns under Guidelines E, B, and D. The action was taken under Executive Order 10865,3 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 answered the SOR in writing on February 13, 2009, and requested that his case be decided by an administrative judge on the written record without a hearing.4 Department Counsel submitted the Government’s written case on March 11, 2009. A complete copy of the file of relevant material (FORM) was provided to Applicant, and5 he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation within 30 days of his receipt of the FORM. Applicant signed the document acknowledging receipt of his copy of the FORM on March 26, 2009, and returned it to DOHA. On April 19, 2009, he submitted a sworn letter with additional “explanations” in response to the SOR allegations, but no other evidence in refutation, extenuation or mitigation, and made no objection to consideration of any evidence submitted by Department Counsel. On April 23, 2009, Department Counsel initialed a memorandum to indicate that he objected to the admissibility into evidence of the materials submitted by Applicant. No basis for this objection was noted, and no further documentation was submitted to substantiate any reason for it. Accordingly, the objection is overruled and Applicant’s April 19, 2009 letter is admitted into evidence and the record. I received the case assignment on May 1, 2009. Findings of Fact Applicant is a 48-year-old employee of a defense contractor. He is married, with four children, ages 25, 24, 21, and 15. He moved away from his family when he changed jobs in February 2006, and has lived separately since then. He retired in 2005 after 24 years of enlisted service in the Air Force, and was granted a security clearance in 1995. In his response to the SOR, he admitted the truth of SOR ¶¶ 1.a, 1.c, 1d, 1.e,6 1.f, and 1.h, was “not sure” about ¶ 1.b, and denied ¶¶ 1.g and 1.i. He did not directly7 respond to SOR ¶¶ 2.a or 3.a, but those two paragraphs incorporated allegations from Item 5.8 Item 5 at 4-6.9 Item 5 at 4-6, 8-9.10 3 SOR ¶ 1, to which he admitted, by reference. Applicant’s admissions, including those contained in his response to interrogatories, are incorporated in the following findings.8 Applicant’s wife told him in 2001 or early 2002 that she had recently engaged in an extra-marital affair. From June to October 2002, he was assigned to perform temporary duties (TDY) at an Air Force facility in Ecuador. While there he met a local 23-year-old woman and began an intimate affair with her. She told him she had been a nursing student, but could no longer afford school after her father recently died so she was working various unidentified jobs to support herself. Since 2002, he has returned to Ecuador approximately twice a year. He explained to the Office of Personnel Management (OPM) investigator that the purpose of these visits was to pursue and continue his affair with the Ecuadoran woman, for whom he continued to have strong feelings, although he attempted to downplay this motivation for his trips in his response9 to the FORM, after being confronted with the security implications. He has sent the woman payments of $100 per month and additional payments of $300 twice per year, purportedly to help her with nursing school expenses. He did not explain why she has not completed school after more than seven years. He also purchased a lot of cell phones (about 15) on E-Bay in 2003, and sent them to her so she could resell them for a profit. This was also purportedly to help her generate funds for school. Applicant explained that all his contributions to her financial well being were gifts for which he expected nothing in return that he made due to his generous nature. He also claimed that his means of contacting her by telephone were stolen from him, but has never disavowed his ongoing feelings for her, nor declared any intention to end the relationship. Applicant told the OPM investigator, under oath on April 2, 2008, that the only person except the Ecuadoran woman who knew of their affair was an Air Force friend with whom he had been TDY at the time it began. He said he had met her mother, brothers and sisters, but did not describe their understanding of the relationship. Neither the woman nor any of her family members have any connection to the government of Ecuador. He specifically said that he had not previously disclosed the affair to anyone except the friend, including his spouse. He affirmed the accuracy of these statements, again under oath, on September 5, 2008. Applicant responded to the SOR ¶ 1.b10 allegation that his spouse is unaware of the relationship by stating, “Not sure I admit (she suspects).” In his response to the FORM, he further explained that his brother and sister-in-law told him recently that his wife had told them that Applicant had told her about the woman and she knew of his trips to Ecuador. He submitted no evidence to corroborate this claim. He also admitted that he never told his Air Force supervisors about the relationship nor did he disclose it during security debriefs after his visits, explaining that he didn’t think he was required to. He also failed to list her as an associate on his 2006 and 2008 security clearance applications, although he did list his Item 4 at 26; Item 6 at 6.11 4 “many short trips” to Ecuador from 2003 to present, for “pleasure” and “to see different aspects of the Country.”11 Applicant says he has consulted an attorney about obtaining a divorce, but is waiting for his wife to move to the state where he resides to make the process easier. He also said his wife wants a divorce, but keeps delaying her move. Accordingly, no actual progress has occurred in that matter. Applicant offered no other evidence concerning his character, trustworthiness or responsibility. I was unable to evaluate his credibility, demeanor or character in person since he elected to have his case decided without a hearing. Applicant made no objection to Department Counsel’s request that I take administrative notice of the facts set forth at pages 3 through 6 of the FORM, and supported by exhibits I through V. Accordingly, administrative notice of those facts is taken, and they are incorporated into these findings by reference. Of note, Ecuador is an ally of the U.S., with some corruption and human rights problems and issues with narco-terrorists along the Columbian border, but no particularly heightened risk of espionage against U.S. interests based on the nature of the country itself vis-a-vis other foreign nations. 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 to be used 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. 5 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: “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 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 B, Foreign Influence AG ¶ 6 expresses the security concern regarding foreign influence: Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism. AG ¶ 7 describes conditions that could raise a security concern and may be disqualifying: (a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to 6 protect sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information; (c) counterintelligence information, that may be classified, indicates that the individual's access to protected information may involve unacceptable risk to national security; (d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion; (e) a substantial business, financial, or property interest in a foreign country, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence or exploitation; (f) failure to report, when required, association with a foreign national; (g) unauthorized association with a suspected or known agent, associate, or employee of a foreign intelligence service; (h) indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure, or coercion; and (i) conduct, especially while traveling outside the U.S., which may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country. Applicant admitted the truth of each of the factual allegations incorporated by reference in SOR ¶ 2.a. These are his maintenance of an extramarital affair with a citizen and resident of Ecuador from 2002 to at least September 2008, his biannual trips to Ecuador to visit her, his monthly and biannual payments to her totaling about $1,800 per year since 2002, and purchasing the cell phones for her to resell. Department Counsel argues persuasively that these facts raise and support security concerns under AG ¶¶ 17(a) and (i) above. Having a secret mistress in any foreign country, with regular visits to maintain the affair and regularly providing financial support, inherently involves both contact with a resident national of a foreign country and conduct while visiting that country that create heightened risk of, and vulnerability to, exploitation, manipulation, pressure and coercion. The ongoing and intentionally clandestine nature of the relationship exacerbates such risk. Department Counsel’s assertion of security concerns under AG ¶ 17(f), due to Applicant’s failure to disclose the relationship as an “associate” on his security clearance applications, is without merit since those omissions were not alleged as disqualifying information under this guideline in the SOR. None of the remaining disqualifying conditions apply. 7 AG ¶ 8 provides conditions that could mitigate foreign influence security concerns: (a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.; (b) there is no conflict of interest, either because the individual's sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; (d) the foreign contacts and activities are on U.S. Government business or are approved by the cognizant security authority; (e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and (f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual. Applicant’s admission of the foregoing facts supporting disqualifying security concerns under AG ¶¶ 7 (a) and (i) shift the burden of proof to him to rebut, explain, extenuate or mitigate those facts sufficiently to establish that it is clearly in the interest of national security to grant him a security clearance. His subsequent, uncorroborated assertions seeking to minimize the nature and extent of his clandestine extramarital affair, conducted in a foreign country with a foreign citizen, and financial investment of both direct payments and travel expenses is unpersuasive and falls short of meeting this burden. The nature of this relationship does not make it unlikely that he would be put in a position of having to choose between the woman’s interests and those of the U.S., regardless of the country involved. He proved nothing about Ecuador, his mistress, or her family that would lessen this risk. AG ¶ 8(a) does not apply. No conflict of interest scenario was alleged or asserted by Department Counsel, so AG ¶ 8(b) is not pertinent. Applicant’s contact and communication with his Ecuadoran mistress has been regular, intimate, and ongoing for more than seven years, with no real evidence that it will not continue. AG ¶ 8(c) was not established. These foreign contacts were neither 8 part of Applicant’s official duties, nor reported to appropriate authority, precluding any mitigation under AG ¶¶ 8(d) or (e). Security concerns were not asserted under AG ¶ 7 (e), so AG ¶ 8(f) does not apply either. Guideline D, Sexual Behavior AG ¶ 12 expresses the security concern under this guideline: 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; (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. 9 As discussed above, maintaining a long-term clandestine extramarital affair with a foreign national subjects an individual to significant vulnerability to coercion, exploitation or duress. Applicant’s efforts to maintain the secrecy of this conduct highlight his recognition of this problem, but he chose to continue the conduct due to his ongoing strong feelings toward his mistress. The evidence supports security concerns under AG ¶ 13(c). No other disqualifying condition was asserted by Department Counsel. Applicant’s affair began when he was 41 years old. The behavior occurred regularly for some seven years, and he did not provide any convincing evidence that it is unlikely to continue, casting ongoing doubt on his trustworthiness and judgment. The behavior remains unknown to important people in his life, providing a continuing basis for coercion or exploitation whether it does, in fact, continue or not. The fact that the sexual behavior may have been private, consensual, and discreet does not mitigate concerns under AG ¶ 13(c). Accordingly, none of the mitigating conditions under AG ¶ 14 are supported by this record. 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. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying under this guideline. Department Counsel asserts that three of them apply: (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 qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; (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; and Item 4 at 16.12 10 (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. Applicant admits that he did not list his mistress as an “associate” in response to the questions asking him to list his “relatives and associates” on either his 2006 or his 2008 security clearance applications. He explained that he didn’t realize his mistress should be revealed in response to this question. His 2006 SF 86 application does not contain any definition of “associate,” so his explanation for this omission is accepted. However, his 2008 e-QIP contains the instruction for “Associate” to “include only foreign national associates with whom you or your spouse are bound by affection, obligation, or close and continuing contact.” Applicant admitted that he was bound by affection to his12 mistress at the time he completed this application, and continued to be so bound as late as September 2008. His assertion in response to the FORM that he did not consider her significant enough to list because their meetings were infrequent, casual, and easily severable is inconsistent with his previous sworn statements describing their relationship, and with the admitted facts concerning its nature and extent. Accordingly, I find that he deliberately falsified material facts on his 2008 application by omitting any mention of her. As discussed above, his conduct in connection with this affair and his concealment of information about it from family members and professional associates created significant vulnerability to exploitation, manipulation and duress. The evidence of record thus establishes security concerns under AG ¶¶ 16(a) and (e). My whole person analysis will be set forth below, and will incorporate concerns under all three alleged guidelines. Should my foregoing analysis finding significant unmitigated security concerns under both Guideline B and Guideline D be incorrect, I would then find AG ¶ 16(c) to be applicable on these facts. Despite his claim that his wife told him she had an extramarital affair before he began his, he persistently concealed his conduct from her, his children and his supervisors. He knew it was wrongful, but could not resist the ongoing temptation to violate his family obligations. His admitted conduct alone supports findings of questionable judgment, untrustworthiness, unreliability, lack of candor, and unwillingness to comply with rules. 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; 11 (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 did not reveal his affair until questioned by an OPM investigator about the real motivations behind his “many short trips” to Ecuador from 2003 to 2008 several months after omitting that information from his January 2008 e-QIP. He did reveal the nature and extent of his conduct during that interview after being confronted, and reaffirmed those statements in September 2008. He made no claim that he was advised he need not reveal this information, and did not establish that either intimate relations with his mistress or attempts to conceal the affair were unlikely to recur. He did not demonstrate any positive steps to reduce or eliminate vulnerability to exploitation or manipulation, and admitted the allegations on which all but the falsification concerns were based. Accordingly, he failed to establish mitigation of personal conduct security concerns under any AG ¶ 17 provision. 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): 12 (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) the 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 common sense 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 is a mature individual who is responsible for his entirely voluntary choices and conduct that underlie security concerns expressed in the SOR. He engaged in a clandestine extramarital affair with a foreign woman he met in 2002 while TDY that continued at least into late 2008. This included biannual visits for sexual liaisons as well as regular financial payments to her. He provided no convincing evidence that this behavior has ended, or would end anytime soon, or that he regrets having done so to the point that he would not repeat the behavior. His motivation for the conduct was purely his personal gratification and to maintain the affections of his mistress to that end. He did not disclose this activity to significant people in his life or on his most recent security clearance application, and continues to remain subject to duress should it be revealed. The record contains insufficient other evidence about his character or responsibility to mitigate these concerns, or tending to make their continuation less likely. Overall, the record evidence creates substantial doubt as to Applicant’s present eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the security concerns arising from foreign influence, 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 Subparagraph 1.f: Against Applicant 13 Subparagraph 1.g: Against Applicant Subparagraph 1.h: Against Applicant Subparagraph 1.i: For Applicant Paragraph 2, Guideline B: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Paragraph 3, Guideline D: AGAINST APPLICANT Subparagraph 3.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 or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is revoked and denied. DAVID M. WHITE Administrative Judge