DEPARTMENT OF DEFENSE 
  DEFENSE OFFICE OF HEARINGS AND APPEALS 
  
  
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 08-09123 
 SSN: ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Julie Mendez, Esq., Department Counsel 
For Applicant: Larry N. Burch, Esq. 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HEINY, Claude R., Administrative Judge: 
 
From April 2007 to August 2007, Applicant, while married, was involved in an 
inappropriate relationship with the wife of a former subordinate, a Marine Corps captain 
he had previously led. Applicant has rebutted or mitigated the government’s security 
concerns under personal conduct and criminal conduct. Clearance is granted. 
 
Statement of the Case 
 
 Applicant contests the Defense Department’s intent to deny or revoke his 
eligibility for an industrial security clearance. Acting under the relevant Executive Order 
and DoD Directive,1 the Defense Office of Hearings and Appeals (DOHA) issued a 
 
1 
                                                          
1 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) 
 
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Statement of Reasons (SOR) on March 4, 2009, detailing security concerns under 
personal conduct and criminal conduct. 
  
 On April 29, 2009, Applicant answered the SOR, and requested a hearing. On 
May 27, 2009, I was assigned the case. On June 9, 2009, DOHA issued a notice of 
hearing scheduling the hearing which was to be held on July 28, 2009. For good cause 
shown, that hearing was cancelled. On July 29, 2009, DOHA issued a notice of hearing 
scheduling the hearing which was held on August 25, 2009. 
 
 The government offered Exhibits (Ex.) 1 through 13, which were admitted into 
evidence. Applicant testified on his own behalf and submitted Exhibits A through F, 
which were admitted into evidence. On September 1, 2009, the transcript (Tr.) was 
received. 
 
Findings of Fact 
 
 In Applicant’s Answer to the SOR, he denied the allegations in SOR ¶ 2.a. He 
admitted the factual allegations, with explanation, set forth in SOR ¶ 1.a. Applicant’s 
admissions to the SOR allegations are incorporated herein. After a thorough review of 
the record, pleadings, exhibits, and testimony, I make the following additional findings of 
fact: 
 
 Applicant is a 46-year-old who has worked as a program manager for a defense 
contractor since March 2008, and is seeking to obtain a security clearance. In August 
1985, Applicant married for the first time a woman he met in college. (Tr. 62) The 
marriage ended in divorce 15 years later, in June 2003. Two sons were born of the 
marriage, in February 1990 and March 1996, and a daughter was born in March 1998. 
(Ex. 1, Tr. 84) The children are now ages 11, 13, and 19. (Tr. 62) 
 
 In 1986, Applicant joined the Marine Corps and retired from the Corps in 
February 2008. (Ex. F) He was a distinguished graduate at his basic communication 
officers’ course. (Ex. E) He was in the top 20% of his basic school and an honor student 
and the number one graduate of the 60 officers in his Operational Specialty School. (Tr. 
64, 65) At his first assignment, he was the number one rated second lieutenant in his 
regiment and number two rated second lieutenant at division level. (Tr. 67) From August 
1998 to May 1999, he attended the Army Command and General Staff College 
graduating in the top 10% of 1,500 graduates. (Tr. 91) He attended class for a master’s 
degree at night and in 1999 obtained his master’s degree in information technology. (Tr. 
92)  
 
 In 1996, Applicant served in Bosnia. He left Bosnia to go to Liberia to conduct an 
evacuation of the U.S. Embassy in Monrovia. (Tr. 80) From 2002 through 2004, 
 
promulgated by the President on December 29, 2005, and effective within the Department of Defense for 
SORs issued after September 1, 2006. 
 
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Applicant was requested by name to serve at the White House Military Office. (Tr. 57) In 
2002, Applicant was awarded the Defense Meritorious Service Medal (DMSM). In 2004, 
he received his second award of the DMSM. In 2006, he was awarded the Bronze Star 
medal for his performance while being forward-deployed as commanding officer of a 
Marine Wing Communications Squadron in Iraq from January 2005 through September 
2005. In 2007, he was re-deployed to Iraq, was selected for promotion to colonel, and 
was selected as a Marine Corps Fellow to attend a civilian university for one year. (Ex. 
10) His numerous awards and medals are listed in detail on his DD Form 214. (Ex. 11)  
 
In August 2003, Applicant remarried to an Air Force captain he had met when 
they both were working at the White House. (Tr. 104) She had been previously married 
three times and had a six-year-old son, born in July 1998. In mid-October 2004, their 
son was born. In late October 2004, Applicant took command of a squadron. (Tr. 131) 
While commanding the squadron, he normally left for work at 5:00 a.m. and returned at 
or after 8:00 p.m. (Tr. 109) In January 2005, Applicant deployed to Iraq for the first time 
and stayed there until mid-September 2005. (Tr. 110)  
 
Three weeks after his return from Iraq, his wife was deployed to Iraq. (Tr. 114) 
She was deployed until March 2006. Following her deployment, Applicant found his wife 
to be distant, distracted, and disengaged. (Tr. 117) He sensed emotional fallout of some 
sort. (Tr. 118) Initially, his wife stated she had been raped. Later, she related she had 
had an affair with an Army colonel with whom she served while deployed.  
 
At the time he learned of the affair, Applicant’s son was a toddler. Applicant 
offered to attend marriage counseling, but his wife stated it would not serve any 
constructive purpose. They continued to live estranged in the same house. From 
January 2007 through June 2007, Applicant was deployed to Iraq. During this 
deployment, Applicant’s wife sent him no mail, care packages, or pictures of their son. 
(Tr. 124) She sent a few emails related to financial matters and her need for money. 
While he was deployed, she sold his car. (Tr. 125) 
 
Following the deployment, they both had a permanent change of station (PCS) 
and purchased a large home at the new location. They continued to be estranged, living 
in the same home, but no longer sleeping together. (Tr. 130)  
  
 At the squadron’s 2004 Christmas party, Applicant met a woman, the wife of a 
Marine Corps captain who was under Applicant’s command. From January 2005 
through September 2005, while in Iraq, Applicant did not see or talk with this woman. 
Before returning from Iraq, the woman’s husband was deployed to Afghanistan. While 
her husband was overseas, the woman left the area to live with her mother in upstate 
New York. (Ex. D) The woman stated “she barely knew him [Applicant] at the 
squadron.” (Ex. 6, page 81 of 81) Applicant states from mid-October 2004, when he 
took command, until his TDY in January 2005, he had seen the woman twice. (Tr.133)  
 
 
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 In the spring of 2006, following the husband’s return from Afghanistan, her 
husband received (PCS) orders to New York for recruiting duty. In May or June 2006, 
the woman had problems with the transportation of her household goods and sought 
Applicant’s assistance. (Tr. 134, Ex. 6, page 77 of 81) Applicant took her to the 
administration section, where she was helped with her transportation problem. The 
encounter lasted ten minutes. The next time he saw the woman was in August 2007. 
After the spring of 2006, the woman’s husband was no longer a subordinate or within 
Applicant’s command. (Tr. 139)  
 
 Following the PCS, the woman and her husband were estranged and slept in 
separate rooms for a year before she moved back to her mother’s home, which was 
more that 150 miles from her husband’s location, in May 2007. Around Easter 2007, 
Applicant received an email that included pictures of the woman’s daughter. At that 
time, the woman had the habit of emailing photos of her daughter to everyone. (Ex. 6, 
page 80 of 81) At the time, the woman did not realize Applicant was no longer at his 
stateside location, but was deployed to Iraq. As a commander, Applicant responded to 
the email with a couple of sentences of normal small talk thanking her for the email and 
asking about her and her husband.  
 
 A few days later, the woman sent an email saying that she and her husband’s 
marriage was not going very well, that she and her husband were separated, and she 
had moved back in with her mother. The woman stated her husband’s second 
deployment had led to the end of the marriage. (Ex. D) Applicant expressed the state of 
his marriage. Applicant’s son and the woman’s daughter were approximately the same 
age. (Tr. 138) The emails increased in frequency until they became daily. 
  
In June 2007, Applicant returned from his overseas deployment. With the 
marriage ending, his wife hired a private detective to hack into Applicant’s private 
computer. She learned of the emails between Applicant and the other woman. She also 
learned that in August 2007, Applicant was going to visit his children in another state 
and would be spending the weekend at that location. She learned Applicant intended to 
meet the other woman. The other woman had relatives near where Applicant’s children 
lived and where Applicant would be visiting. Applicant stated the initial plan was to 
meet, talk, have dinner, and the woman would then leave to return to stay with her 
relatives. Applicant’s wife had the private detective follow her husband to secure 
photographs of the meeting with the other woman.  
 
The woman’s arrival was delayed and after a late dinner she decided not to leave 
to drive to her relatives, but decided to spend the night with Applicant in his hotel room. 
The woman states she had not met with Applicant until after she had obtained a 
separation agreement from her husband. (Ex. D) Prior to their meeting, the woman had 
presented her husband with legal separation documents. (Ex. 6, page 79 of 81)  
 
The detective took pictures of the two in a parking lot. (Ex. 6) Upon receiving the 
detective’s report, Applicant’s wife immediately called the woman’s husband and told 
 
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him about the meeting. Even though they were separated, the woman’s husband 
immediately called his wife and started to harass her. (Tr. 158) When the woman asked 
Applicant what she should do, Applicant told her to simply deny everything to her 
husband and to not answer her husband’s phone calls. (Tr. 155) Applicant told the 
woman to deny the meeting. The husband drove to Applicant’s wife’s location to view 
the photographs. Applicant’s wife then called Applicant’s command to inform them of 
the events. 
 
In mid-August 2007, Applicant was interviewed about the meeting with the other 
woman. Initially, Applicant denied meeting with the woman, but before the interview 
ended he admitted they had met and kissed. (Tr. 151) Following the interview, Applicant 
questioned his wife about what had occurred and how anyone could have obtained his 
personal emails. His wife denied all knowledge and speculated that maybe someone 
had come into their home and hacked into his computer. Applicant stated that if he ever 
came home and found a stranger in his home messing with his computer, he would 
“take them out.” (Tr. 153) The hypothetical scenario response referred to no one in 
particular and no one specifically was threatened.  
In August or September 2007, Applicant’s wife filed for separation. (Tr. 218) 
Applicant’s wife’s main concern was payment of the house mortgage. Applicant and his 
then wife have since divorced and he is paying child support. (Tr. 224) In February 
2008, Applicant’s wife was arrested and charged with assault after she threw coffee on 
Applicant. (Tr. 159) His wife now has a live-in boyfriend. (Tr. 166) Applicant was ordered 
to have no contact with the other woman. In March 2008, after Applicant had separated 
from the Marine Corps, Applicant resumed contact with the woman. Applicant and the 
other woman plan to live together starting in the summer of 2010. (Ex. D)  
 
 Applicant’s Marine Corps Fellowship was immediately canceled as was his 
promotion to colonel. In November 2007, Applicant received nonjudicial punishment for 
violations of Article 107 (False official statement); Article 133 (Conduct unbecoming an 
officer); Article 134 (Obstructing justice); and Article 134 (Communicating a treat) of the 
Uniform Code of Military Justice. Applicant entered into a Memorandum of Agreement 
(Ex. 5) accepting nonjudicial punishment and setting forth the offenses. The Article 107 
violation resulted from a statement given by Applicant in August 2007, where he initially 
denied meeting with the woman and stated he had not shared a room with the woman 
during a weekend two weeks earlier. The Article 133 violation was the result of the 
inappropriate relationship. The Article 134 violation resulted from Applicant asking the 
woman to lie about their relationship if questioned by her husband. The second Article 
134 specification related to Applicant stating he would harm any stranger he found in his 
home hacking into his computer and private emails.  
 
 Applicant was found to have committed the offenses. During the proceeding, 
Applicant stated he understood his actions were reprehensible. He was embarrassed by 
his conduct and regretted the decisions he had made. (Ex. 8) Applicant realized his 
military career was over and he should “take his lumps” and get out of the Marine 
 
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Corps. He chose not to appeal the punishment. He received a punitive Letter of 
Reprimand (LOR) and a forfeiture of $2,500 pay for two months, a punishment he did 
not appeal. (Ex. 7) 
 
 In October 2007, Applicant had submitted a voluntary retirement request in lieu of 
further administrative separation processing for cause. (Ex. 2, 10) In November 2007, 
Applicant submitted matters for consideration asking that he be retired at his current 
grade. Applicant’s retirement request was approved; however, he was retired in the 
grade of major. In February 2008, he separated from the Marine Corps. (Ex. 11)  
 
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 must be considered 
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 overarching 
adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), 
the entire process is a conscientious scrutiny 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 “[a]ny doubt concerning personnel being considered for access to 
classified information will be resolved in favor of 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 applicant or proven by Department Counsel. . . .” The 
applicant has the ultimate burden of persuasion as to obtaining a favorable security 
decision.  
 
A person who seeks access to classified information enters 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 
 
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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. 
  
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of 
the national interest and shall in no sense be a determination as to the loyalty of the 
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information).  
 
Analysis 
 
Personal Conduct  
 
The Directive sets out various factors relevant to an applicant=s personal conduct 
that may be potentially disqualifying. Paragraph 15 of the Adjudicative Guidelines (AG) 
states a concern where there is 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: 
 
 (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; 
 
(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; 
 
 
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(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; 
 
(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.  
 
Starting in April 2007 and ending in August 2007, Applicant engaged in 
inappropriate conduct and demonstrated poor judgment, which resulted in his receipt of 
nonjudicial punishment under the UCMJ, and the end of his military career. His 
judgment and reliability were questionable. Applicant exercised poor judgment, lack of 
candor, and dishonesty. He was unwilling to comply with rules and regulations. When 
asked about what had occurred the weekend in question, Applicant first denied any 
wrongdoing and later, during the same interview, admitted he had met and kissed the 
woman.  
 
 
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Applicant’s actions involve three major mistakes. First, the other woman was the 
wife of a fellow Marine. Second, he saw this woman before his and the other woman’s 
marriage had ended. Third, he was dishonest about his relationship with the woman. 
The woman had a separation agreement when they met and is now divorced. Applicant 
is also now divorced. His inappropriate conduct ended his military career, impacted his 
dignity, and affected his military retirement. A lack of love can cause people to do things 
they would not ordinarily do, as does a lack of love. Applicant was in a difficult position 
and made an inappropriate decision. He tried to maintain the peace with his wife, to live 
estranged from his wife in the same home, and to meet with the other woman. He 
should have ended his marriage prior to seeing the other woman. His conduct with the 
wife of a fellow Marine was, as Applicant stated, reprehensible. AG ¶ 16(b) and ¶ 
16(d)(1) apply. 
 
Applicant realizes his conduct was inappropriate. He acknowledged during the 
Article 15 proceeding that his actions were reprehensible.  
 
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, 
 
 
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(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 nonjudicial punishment contained four allegations. AG ¶ 17(a) 
partially applies to his statements made during his mid-August 2007 interview. Applicant 
initially denied meeting with the woman, but before the interview ended he admitted 
they had met and kissed. He was charged with false official statement. Applicant has 
adequately explained the obstruction of justice charge. Applicant told the other woman 
not to answer her then husband’s phone calls and to deny to her husband that they had 
been together. His conduct does not rise to an obstruction of justice charge. He also 
adequately explained the communicating of a threat. Applicant stated he would harm 
any stranger he found in his home hacking into his computer and private emails. This 
general comment was directed at no specific individual, but was a response to a 
hypothetical scenario. No one specifically was threatened.  
 
 The Article 133 violation was the result of the inappropriate relationship. 
Applicant knew his conduct was inappropriate, that his military career was over, that he 
should take his punishment, and leave the service. He knew there was no reason to 
appeal this nonjudicial punishment. For his inappropriate conduct, he was strongly 
punished. The $2,500 loss of pay for two months was not as significant as his loss of 
the educational fellowship, the impact on his dignity, the ending of his career, and being 
separated as a major.  
 
AG ¶ 17(b) does not apply because failure to cooperate, omission, or 
concealment was not caused or significantly contributed to by improper or inadequate 
advice. AG ¶ 17(c) does not apply because the conduct was not minor.  
 
AG ¶ 17(d) applies because Applicant has acknowledged his guilt and 
acknowledged his behavior was inappropriate and taken positive steps to eliminate the 
inappropriate behavior. Since Applicant is no longer in the service, conduct unbecoming 
an officer cannot recur. Applicant will not again face punishment under the UCMJ. 
Applicant knew his conduct was inappropriate and he accepted his punishment and left 
the service.  
 
Having left the service, Applicant has taken positive steps to alleviate the 
stressors, circumstances, or factors that caused untrustworthy, unreliable, or other 
inappropriate behavior. Applicant and the other woman are now divorced and free to 
have a relationship. AG ¶ 17(e) applies because the affair has been revealed, which 
reduces or eliminates vulnerability to exploitation, manipulation, or duress.  
 
AG ¶ 17(f) does not apply because the information was substantiated and AG ¶ 
17(g) does not apply because Applicant was not associated with persons involved in 
criminal activity.  
 
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Guideline J, Criminal Conduct 
 
 Revised Adjudicative Guideline (AG) ¶ 30 articulates the security concerns 
relating to criminal conduct: 
Criminal activity creates doubt about a person's judgment, reliability, and 
trustworthiness. By its very nature, it calls into question a person's ability 
or willingness to comply with laws, rules and regulations. 
 
AG ¶ 31 describes conditions that could raise a security concern and may be 
disqualifying: 
 
(a) a single serious crime or multiple lesser offenses; 
 
(b) discharge or dismissal from the Armed Forces under dishonorable 
conditions; 
 
(c) allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted; 
 
(d) individual is currently on parole or probation; 
 
(e) violation of parole or probation, or failure to complete a court-mandated 
rehabilitation program; and 
 
(f) conviction in a Federal or State court, including a court-martial of a 
crime, sentenced to imprisonment for a term exceeding one year and 
incarcerated as a result of that sentence for not less than a year.  
 
 In November 2007, Applicant received nonjudicial punishment for violation of the 
UCMJ. Applicant entered into a Memorandum of Agreement (Ex. 5) accepting 
nonjudicial punishment and setting forth the offenses. AG ¶ 31 (c) applies.  
 
AG ¶ 32 provides conditions that could mitigate security concerns: 
 
(a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances that it is unlikely to recur 
and does not cast doubt on the individual's reliability, trustworthiness, or 
good judgment; 
 
(b) the person was pressured or coerced into committing the act and those 
pressures are no longer present in the person's life; 
 
(c) evidence that the person did not commit the offense; 
 
 
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(d) there is evidence of successful rehabilitation; including but not limited 
to the passage of time without recurrence of criminal activity, remorse or 
restitution, job training or higher education, good employment record, or 
constructive community involvement; and 
 
 AG ¶ 32(a) applies to Applicant’s inappropriate conduct. It has only been two 
years since the behavior ended, but it happened under such unusual circumstances that 
it is unlikely to recur. Applicant is now divorced as is the other woman. He is no longer 
in the military and no longer subject to the UCMJ. The conduct occurred in part because 
of pressures of a bad marriage and those pressures are no longer present in Applicant’s 
life. However, I do not find that Applicant was pressured or coerced into committing the 
acts. AG ¶ 32(b) does not apply. None of the other mitigating factors apply.  
 
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) 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 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 had a relationship with the 
wife of a fellow Marine. He accepted that his conduct was inappropriate and accepted 
his punishment for his action. He has been punished for his conduct. Applicant knew his 
military career was over and submitted a voluntary retirement request. He is no longer 
in the military. Neither Applicant nor the other woman are currently married. They are 
free to resume a relationship, which violates no law. 
 
Overall, the record evidence leaves me without questions or doubts as to 
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant mitigated the security concerns arising from his personal conduct 
and criminal conduct. 
 
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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, Personal Conduct:  FOR APPLICANT 
 
  Subparagraph 1.a:   For Applicant 
  
 Paragraph 2, Criminial Conduct:   FOR APPLICANT 
 
  Subparagraph 2.a:   For Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is granted.  
 
 
 
_______________________ 
CLAUDE R. HEINY II 
Administrative Judge