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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 08-02449
)
Applicant for Security Clearance )
Appearances
For Government: 
Melvin A. Howry, Esq., Department Counsel
For Applicant:
Anthony Camacho, Esq.
April 14, 2011
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP) on April 8, 2007. (Government Exhibit 3.) On March 26, 2010, the Defense
Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing
security concerns under Guidelines E (Personal Conduct), D (Sexual Behavior) and B
(Foreign Influence). The action was taken under 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 adjudicative guidelines
(AG) effective within the Department of Defense for SORs issued after September 1,
2006. 
 
Applicant answered the SOR on May 21, 2010, and requested a hearing.
Department Counsel was prepared to proceed on December 8, 2010. This case was
assigned to me on December 13, 2010. DOHA issued a notice of hearing on January 4,
2011. I convened the hearing as scheduled on January 24, 2011. The Government
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offered Government Exhibits 1 through 6, which were admitted without objection.
Applicant testified and submitted Applicant Exhibits A through P, which were admitted
without objection. Applicant’s counsel requested that the record remain open for the
admission of additional documents. On February 14, 2011, Applicant Exhibit Q was
received and admitted without objection. DOHA received the transcript of the hearing on
February 9, 2011. Based upon a review of the pleadings, exhibits, and testimony,
eligibility for access to classified information is granted.
Findings of Fact
Applicant is 50 and single. He has been married twice, from May 1981 through
April 1988, and July 1988 through December 1991. Applicant has received two
Associate of Applied Science degrees. (Applicant Exhibits F and P.) He is employed by
a defense contractor and seeks to retain a security clearance in connection with his
employment. 
Paragraph 1 (Guideline E, Personal Conduct)
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has engaged in conduct which displays questionable judgment,
dishonesty, or unwillingness to comply with rules and regulations.
Applicant admitted without reservation subparagraph 1.a. of the SOR. That
admission is deemed a finding of fact. He admitted with reservations the factual
allegations in subparagraphs 1.f. and 1.h. Applicant denied the remaining
subparagraphs.
Applicant has, on occasion, frequented prostitutes for the purpose of sexual
gratification. This first occurred in 1980, then in 1991. From 1992 through 1999
Applicant lived and worked in Saudi Arabia. The opportunities for single Americans to
have normal social interactions were very limited. However, as further discussed below
under Paragraph 3, from 1995 through 1999 Applicant had a Filipino girlfriend (Ms. A)
who was also living and working in Saudi Arabia. During the period before and after he
was dating Ms. A, Applicant would visit Thailand. During these visits, he would on
occasion use the services of a prostitute. Applicant denied that he engaged in this
activity on a daily basis while on his visits to Thailand. (Government Exhibits 4, 5 and 6.)
Applicant also engaged the services of prostitutes at massage parlors in the
United States during 2002 and 2003. This conduct occurred, according to Applicant,
because he was “bored and lonely.” He went about ten times in 2002, and then began
dating another woman from the Philippines, Ms. B, who was legally present in the
United States. His relationship with Ms. B will be further discussed under Paragraph 3,
below. He last used a prostitute in 2003, during his background investigation for access
to a special program by another government agency. Applicant has stated he
understands the use of prostitutes is inappropriate, and he has no interest or desire in
using prostitutes in the future. (Transcript at 63-65; Government Exhibit 6 at 7.)
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Primarily because of his sexual behavior, Applicant’s access to special programs
was denied by two different government agencies in 2004 and 2005. (Government
Exhibit 6 at 11-15, 32-46.) Of particular interest is the statement of the Chief,
Adjudications, of another government agency, dated August 24, 2004, affirming the
denial of Applicant’s access:
Cases involving a denial of access because of frequenting
prostitutes is always difficult as no one wants to moralize or be “the
morality police.” However, if [Applicant] had engaged in shoplifting as
recently and over the period that he has solicited prostitutes no one would
challenge that denial of access was the correct call. Most disturbing is the
fact that [Applicant] frequented a prostitute after his first polygraph when
he was asked to extensively discuss this activity. Clearly he knew this was
an issue of concern; yet, he availed himself of the service anyway.
[Applicant] needs to allow time to pass and he needs to conduct himself
with self control and within the law during that period. (Government Exhibit
6 at 39.) (Emphasis supplied.)
In addition to the allegations discussed above, subparagraph 1.g. states that
Applicant used marijuana after being granted a security clearance by the Defense
Department. Applicant admits using marijuana on about 20 occasions with a friend while
he was stationed in Saudi Arabia, and also in Amsterdam. This occurred in the time
period 1994-95, has not occurred since then, and Applicant has no desire to use
marijuana in the future. Applicant submitted a signed, sworn statement indicating that
he will not use any controlled substance in the future, and agreeing that any future use
will result in automatic revocation of his security clearance. (Applicant’s Exhibit Q at 4;
Transcript at 42-44, 67-69, 71-73.)
Paragraph 2 (Guideline D, Sexual Behavior)
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has engaged in sexual behavior that is illegal, reflects a lack of
judgment or discretion, or may subject Applicant to undue influence or coercion.
Specifically, the Government alleges that the sexual conduct set forth above under
Paragraph 1 has security significance under this Guideline as well.
Paragraph 3 (Guideline B, Foreign Influence)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he has or had foreign contacts or interests that may leave him
vulnerable to manipulation, pressure or coercion by a foreign interest.
Applicant resided in Saudi Arabia from 1992 through 1999, and on the island of
Guam from 2005 to the present. From 1999 to 2005 he lived in the United States.
During the time Applicant lived in Saudi Arabia he visited the Philippines and
Thailand on several occasions. He last visited Thailand in 2005. The ability to have
Guam is 544 square kilometers, about three times the size of the District of Columbia, with an estimated 20111
popu la t io n  o f  183 ,2 86 . (C en tra l  In te l l ig e nc e  A genc y,  W o r ld  F a c t  B o o k ,  G u a m ,
https://www.cia.gov/library/publications/the-world-factbook/geos/gq.html (last updated February 28, 2011.)
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social contacts between men and women in Saudi Arabia are very limited. Where
Applicant was stationed there were no single American women at all. He did develop a
relationship with a Filipino woman, Ms. A, who was also legally working in Saudi Arabia.
They dated for several years, and the two of them would travel together on occasion.
The relationship has since ended. (Transcript at 36-42,.)
           In 2002, while living in the United States, Applicant began dating a legal resident
Philippine national, Ms. B. This relationship was open, as was his prior relationship with
Ms. A, and continued for several years, ending in 2004. Applicant does not currently
have a girlfriend. (Transcript at 47-50.)    
Since living in Guam Applicant has visited the Philippines several times, the last
time being in 2009. These visits are two-fold. First, Guam is a small island  and many1
residents there vacation in the Philippines, which is cheaper and a shorter flight than to
the United States. Applicant is also nearing retirement age and is looking to possibly
retire to the Philippines. (Transcript at 59-61, 65-66, 70.)
Mitigation
Applicant honorably served in the United States Air Force, and subsequently in
the Air National Guard, from 1982 through 1991. (Applicant Exhibits A, B, C and D.) He
received a letter of appreciation from the Royal Saudi Air Force for his work with them
while stationed in Saudi Arabia. (Applicant Exhibit E.)
Applicant is a respected and valued worker at his current employment in Guam.
His “Performance and Development Summary” for each year from 2005 through 2009
show that he either “meets” or “exceeds” his company standard. (Applicant Exhibit G, H,
I, J and  K.)
Applicant submitted letters of recommendation from work associates, including
his current supervisor and past supervisors. His current supervisor finds Applicant “to be
a reliable, trustworthy employee. He is consistent in his work ethic.” (Applicant Exhibit
L.) Applicant’s past supervisors state he is “very dependable, reliable,” “a valued
employee,” and “conscientious.” (Applicant Exhibits M, N and O.)
Policies
Security clearance decisions are not made in a vacuum. When evaluating an
applicant’s suitability for a security clearance, the administrative judge must consider
the adjudicative guidelines. In addition to brief introductory explanations for each
guideline, the adjudicative guidelines list potentially disqualifying conditions and
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mitigating conditions, which are to be used as appropriate 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. In addition, the administrative judge may also rely on his or her own
common sense, as well as knowledge of the law, human nature, and the ways of the
world, in making a reasoned 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 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 for 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 classified information. Security clearance decisions include, by
necessity, consideration of the possible risk that 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.
Finally, as emphasized in Section 7 of Executive Order 10865, “Any
determination under this order . . . 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access
to classified or sensitive information).  
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Analysis
Paragraph 1 (Guideline E, Personal Conduct)
The security concern for Personal Conduct is set out in AG & 15:      
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 in any failure to provide
truthful and candid answers during the security clearance process or any
other failure to cooperate with the security clearance process.
Regarding all the allegations, the following Disqualifying Conditions are arguably
applicable:
16.c. credible adverse information in several adjudicative 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
16.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.
16.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.
Regarding all the allegations, the following Mitigating Conditions are applicable:
17.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;
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17.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; and
17.e. the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress.
Applicant admits that his conduct with prostitutes, particularly while stationed in
Saudi Arabia from 1992 through 1998, and briefly in the United States in 2002 and
2003, was not appropriate. He especially understands the security significance of such
behavior, given that two other governmental agencies denied his access based
primarily on that conduct. However, it occurred at least eight years ago and there have
been no recurrences. Applicant credibly stated that he has no interest or desire to visit
prostitutes and shall not engage in such conduct again. 
Applicant’s marijuana use was almost 15 years ago, and occurred when he was
stationed in Saudi Arabia. He is not addicted to illegal drugs in any way, has no urge to
use them, and willingly signed a statement stating he would not use drugs in the future
with automatic revocation of his clearance for a positive drug test.
These incidents happened a long time ago, have not been repeated, and the
Applicant has shown that they were situational in nature. He has mitigated the security
significance of this conduct. Paragraph 1 is found for Applicant.
Paragraph 2 (Guideline D, Sexual Behavior)
The security concern for Sexual Behavior is set out in AG ¶ 12:
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.
The Government has presented enough evidence to meet their burden of proof,
which is minimal. The following disqualifying conditions are arguably applicable based
on this finding:
13.a. sexual behavior of a criminal nature, whether or not the individual
has been prosecuted;
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13.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;
13.c. sexual behavior that causes an individual to be vulnerable to
coercion, exploitation or duress;
13.d. sexual behavior of a public nature and/or that reflects lack of
discretion or judgment.
Under the particular facts of this case, the following mitigating conditions have
application. They are:
14.b. the sexual behavior happened so long ago, so infrequently, or under
such circumstances, that it is unlikely to recur and does not cast doubt on
the individual’s current reliability, trustworthiness, or good judgment;
14.c. the behavior no longer serves as a basis for coercion, exploitation, or
duress;
14.d. the sexual behavior is strictly private, consensual, and discreet.
The discussion concerning the allegations of subparagraphs 1.a. through 1.f.
applies to this Guideline as well. While Applicant is certainly not proud of his conduct, it
occurred at least eight years in the past, and he has no intentions of engaging in such
conduct in the future. He has mitigated the security concerns under this Guideline as
well. Paragraph 2 is found for Applicant.
Paragraph 3 (Guideline B, Foreign Influence)
The concern under Guideline B is styled as follows:
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.
Applicant has travelled to Thailand and the Philippines while stationed first in
Saudi Arabia, then in Guam. He has dated two Filipino women at different times, one
while in Saudi Arabia and the other in the United States. There is only one Disqualifying
Condition which even arguably applies:
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7.b. connections to a foreign person, group, government, or country that
create a potential conflict of interest between the individual’s obligation to
protect sensitive information or technology and the individual’s desire to
help a foreign person, group, or country by providing that information.
The following Mitigating Conditions are applicable, given the factual status of this
case:
8.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.;
8.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; and
8.c. contact or communications with foreign citizens is so casual and
infrequent that there is little likelihood that it could create a risk of foreign
influence or exploitation.
Applicant’s travels to Thailand were, on the whole, done while he was in Saudi
Arabia. He has not been back there in many years and has no desire to return. His trips
to the Philippines are consistent with a person who lives on Guam, for whom the
Philippines is a short plane ride away. He does not currently have a girlfriend, Filipino or
otherwise, and there is no indication that his past girlfriends attempted to influence him
in any way. He has overcome any lingering security concerns brought about by his
travels and choice in girlfriends. Paragraph 3 is found for Applicant.
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 relevant circumstances. 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. 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
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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.      
I considered the potentially disqualifying and mitigating conditions in light of all
the relevant facts and circumstances surrounding this case. I specifically find that the
Applicant has mitigated the Government’s security concerns under the whole-person
concept, independently of Guidelines E, D and B. 
Applicant did not meet the standard expected of individuals who hold security
clearances while stationed in a remote duty station abroad, and then for a period here at
home. The admitted conduct occurred at least eight years ago, and concerning drugs
almost 15 years ago, and has not been repeated. He has acknowledged his wrong-
doing and promises not to engage in the conduct again. DOHA proceedings are not
designed to punish any particular applicant for past conduct, but to make a reasoned
decision whether, under all the circumstances, he or she can be trusted with the
nation’s secrets. Applicant has shown many behavioral changes, which show that he is
trustworthy. Under the particular facts of this case, I find that there is little to no potential
for pressure, coercion, exploitation, or duress (AG ¶ 2(a)(8)); and that there is no
likelihood of recurrence (AG ¶ 2(a)(9)). 
Overall, the record evidence leaves me with no questions or doubts about
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has mitigated the security concerns arising from his alleged
Personal Conduct, Sexual Behavior and Foreign Influence. On balance, I conclude that
Applicant has successfully overcome the Government's case opposing his request for a
security clearance.  Accordingly, the evidence supports granting his request for a
security clearance.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline E: FOR APPLICANT
Subparagraphs 1.a. through 1.f.: For Applicant
Paragraph 2, Guideline D: FOR APPLICANT
Subparagraphs 2.a. through 2.f.: For Applicant
Paragraph 3, Guideline E: FOR APPLICANT
Subparagraphs 3.a. through 3.d.: For Applicant
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Conclusion
In light of all of the circumstances presented by the record, it is clearly consistent
with the national interest to grant Applicant eligibility for a security clearance.  Eligibility
for access to classified information is granted.
                                              
WILFORD H. ROSS
Administrative Judge