1 
 
                                                              
                        DEPARTMENT OF DEFENSE    
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
) 
   )    ISCR Case No. 09-05617 
 ) 
) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Alison O‟Connell, Esquire, Department Counsel 
For Applicant: Krystal Limon, Esquire 
 
 
 
______________ 
 
Decision 
______________ 
 
 
MATCHINSKI, Elizabeth M., Administrative Judge: 
 
Applicant engaged in cyber-sexual contacts with several women, including two 
Canadian citizens, from about 2001 until 2005. He had a sexual liaison with one of the 
Canadian women while on a business trip in 2001. Despite an expressed intent not to 
engage in such behavior in the future, he had online contact of a sexual nature with another 
woman around October 2009. Applicant‟s spouse is now aware of these activities, but the 
Personal Conduct concerns are not fully mitigated. Applicant improperly contacted some of 
these women through his work computer, and he was not candid about this behavior during 
a previous security investigation. He also did not report to security officials at work that he 
had committed several security infractions between 1994 and 2002, or that he had contact 
of a sexual nature with foreign nationals. The concerns support a whole-person assessment 
of questionable judgment. Clearance denied. 
 
 
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Statement of the Case 
 
On March 15, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a 
Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline 
D (Sexual Behavior), and Guideline E (Personal Conduct), which provided the basis for its 
preliminary decision to revoke his security clearance. 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 on 
September 1, 2006. 
 
Applicant answered the SOR allegations on April 19, 2010, and requested a hearing 
to be held at least six months in the future. On August 12, 2010, previously assigned 
Department Counsel materially amended the SOR by deleting Guideline D and alleging the 
cyber sexual conduct and related matters instead under Personal Conduct. Furthermore, 
five security violations were added under Guideline E, which Applicant allegedly failed to 
report to his facility security officer (FSO). Applicant was also alleged to have misused his 
work computer around May 2004 to contact some of the women with whom he had 
engaged in cyber sex. Applicant was directed to respond to the amended SOR within 20 
days of receipt. On August 24, 2010, the case was assigned to me to consider whether it is 
clearly consistent with the national interest to grant or continue a security clearance for 
Applicant. On September 9, 2010, counsel for Applicant entered her appearance, and with 
the agreement of the parties, I scheduled the hearing for October 8, 2010. On September 
30, 2010, Applicant answered the amended SOR. 
 
I convened the hearing as scheduled on October 8, 2010. The Government notified 
me of the amended SOR and submitted eight exhibits (Ex. 1-8). Exhibits 1 through 7 were 
admitted without objection. I sustained Applicant‟s objection to proposed Exhibit 8, 
Applicant‟s employer‟s corporate procedure for Internet use, because the effective date of 
the policy post-dated the issues in the SOR. Sixteen Applicant exhibits (Ex. A-P) were 
admitted without objection. Applicant, Applicant‟s spouse, and three of Applicant‟s 
coworkers, testified, as reflected in a transcript (Tr.) received on October 15, 2010. 
 
           Summary of SOR Allegations 
 
The amended SOR alleged under Guideline E, Personal Conduct, that Applicant‟s 
program access was revoked by a Government agency in about December 2004 due in 
part to the information alleged in the SOR (SOR 1.a); that Applicant engaged in cyber sex 
with around 50 women from 2001 through 2003, including two Canadian citizens, and that 
he had a sexual liaison with one of these Canadian women while on business travel around 
2001 (SOR 1.b); that Applicant disclosed to one of the women (SOR 1.c) that he was an 
aerospace engineer with a clearance in an attempt to impress her; that his spouse is 
unaware of his cyber sex and the sexual liaison (SOR 1.d); that he withheld the cyber sex 
and sexual liaison activities during a polygraph with a Government agency in October 2004 
 
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(SOR 1.e);
1
 and that he failed to report his foreign contacts to his FSO (SOR 1.f). Applicant 
was also alleged to have reported during his interview with another Government agency, 
but not to his FSO (SOR 1.h), that he had violated security procedures by failing to report 
that he had twice brought his cell phone into the building (SOR 1.g(1)), had failed to mark 
classified documents properly (SOR 1.g(2)), had brought six homemade music compact 
disks into the office between 1999 and 2002 without having them scanned by security 
(SOR 1.g(3)), had removed a classified disk while working abroad in 1997 (SOR 1.g(4)), 
and had failed to protected classified information in an area where uncleared persons were 
working in 1994 (SOR 1.g(5)). Furthermore, Applicant was alleged to have communicated 
with some of the women with whom he had cyber sex through his work computer without 
authorization on three to six occasions around May 2004 (SOR 1.i).
2
 
 
Findings of Fact 
 
Applicant denied the allegations in the amended SOR. After considering the 
pleadings, exhibits, and transcript, I make the following findings of fact. 
 
Applicant is a 49-year-old operations manager for a defense contractor. (Ex. 1.) He 
seeks a security clearance for his duties. He previously held a Top Secret security 
clearance with sensitive compartmented information (SCI) access until December 2004, 
when his special access was revoked for the conduct alleged in the amended SOR. (Ex. 3; 
7.) 
 
Applicant served honorably as an electronics technician in the U.S. military from July 
1980 to December 1990. He held a security clearance for his military duties from 1982 to 
1990. (Tr. 92.) From December 1989 to December 1990, he was deployed to the Middle 
East. He was awarded a Navy Achievement Medal for his contributions.  (Ex. P.) He was 
married to his first wife from 1982 to 1990, and has a daughter from that marriage. (Ex. 1; 
2.) After earning his bachelor‟s degree in electronic engineering technology, Applicant 
began working as an engineering support specialist for a defense contractor in August 
1991. (Ex. 3; N; P; Tr. 93.) In December 1991, Applicant was assigned to a sensitive 
project onsite in foreign country X. He was granted special program access, and he signed 
                                                 
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The Government amended the SOR to add SOR 1.e, “You withheld information regarding your activities as 
set forth above in subparagraph 1.b during polygraph testing with another government agency in October 
2004.” However, Applicant was then asked to specifically respond to the following SOR 1.e:  “You withheld 
information regarding your activities as set forth in subparagraph 1.b during an interview with another 
government agency in October 2004.”  There is a material discrepancy between whether Applicant lied during 
polygraph testing and during an interview that may or may not have been administered during the course of a 
polygraph examination. During an October 2004 interview, Applicant apparently revised some information 
about his cyber sex encounters from what he had provided during the October 2004 polygraph. See Ex. 3. 
Department Counsel did not attempt to clarify the mistake apparently made by her colleague when redrafting 
the allegation for Applicant‟s response. 
 
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Department Counsel clarified at the hearing that SOR 1.i alleges communications with some of the women 
through unauthorized use of his work computer, as set forth initially in the amendment. When the allegation 
was redrafted for Applicant‟s response, the Government mistakenly duplicated the concern in SOR 1.c and 
omitted the alleged unauthorized use of the work computer. 
 
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a Lifetime Nondisclosure Agreement agreeing that he would not disclose certain elements 
of his job, specific program information, or links to specific government agencies. (Ex. 3.) 
 
While living and working in country X, Applicant met, and in June 1993 married, his 
current spouse, a native citizen of country X. Applicant and his spouse have two children, 
who are dual citizens of country X and the United States. (Ex. 1; 2; Tr. 72.) 
 
As required of all individuals with restricted program access, Applicant received 
annual security briefings from his employer on his security responsibilities. During those 
briefings, Applicant was reminded of his continued responsibility to protect classified 
information and to report to security any incident that might impact program security. (Ex. 
5; Tr. 132-33.) In October 1993, Applicant verified by signature that he had reviewed the 
security guidelines handbook and his employer‟s polygraph policy as applied to restricted 
program briefed employees. (Ex. 6.) In 1994, Applicant left some classified documents in 
the open in the facility where uncleared persons could have accessed them. (Ex. 3; Tr. 
123-24.) There is no evidence that the classified material was accessed by an uncleared 
person, however.  
 
Applicant underwent polygraph testing in 1995 and 1996 with three different 
examiners. He volunteered that he had disclosed to his spouse certain aspects of his job 
responsibilities, specifically the meaning behind a designated program patch affixed to his 
jacket. However, Applicant‟s spouse testified that she commented about the badge based 
on public information, and that Applicant never commented about the program to her. (Tr. 
77.) The patch became classified because of its link to a generic systems patch he also 
displayed. Applicant claims he did not realize that he could not display the two patches 
together. (Ex. 4.) Applicant felt demeaned by his polygraph experience, and he and his 
spouse agreed thereafter to maintain a “don‟t ask, don‟t tell” policy. (Ex. 3.) 
 
In 1997, while on business in Europe, Applicant inadvertently removed from a 
secure area a floppy disk containing highly classified information. He went to lunch with the 
disk in his pocket. He brought it back after lunch and informed security onsite. (Ex. 4; Tr. 
121-22.)  
 
 After almost five years as a maintenance training engineer, Applicant became a 
system operator in April 1998. In July 1999, apparently as a result of a corporate 
acquisition, Applicant began working for his current employer as a system training engineer 
on the project. (Ex. N; O.) Applicant was retested by a polygraph examiner in October 
1999, and he retained his security clearance and special access. (Ex. 3.) 
  
 Between 1999 and 2002, Applicant brought six homemade music compact disks into 
his classified work area without having them scanned by security personnel. Applicant was 
unaware at the time of any prohibition against bringing compact disks into the building 
provided they were not inserted into a government-sponsored computer and did not leave 
the facility. (Ex. 3; Tr. 118-21.) 
 
 
 5 
 Around 2001, Applicant became involved in online games of a sexual nature. He 
now recalls that over the next few years, through 2003, he had online cyber sex with 
several women. While he now recalls he had contact via instant messaging with five 
anonymous women on no more than 20 occasions (Tr. 95.), he had estimated in October 
2004 that in “a worse-case scenario” he had 50 to 100 cyber sex encounters with over 50 
different women. (Ex. 3.) He informed some of his online contacts that he was an 
aerospace engineer, and that he held a security clearance, although it was to avoid further 
questions about his job and not with the intent to impress them. (Tr. 107-08.) In October 
2001, he had a sexual liaison with one of the women, a married Canadian teacher, with 
whom he had developed an online relationship since May 2001. (Tr. 102; 146.) He 
engaged in telephone sex with her twice and provided her with some personal data. She 
spent the weekend with him while he was on a business trip to the United States. The 
following weekend, he visited her in Canada. (Ex. 3; 4.) When they met, Applicant wore his 
jacket containing the two patches which were later determined to be classified. (Ex. 3.) 
Applicant informed his local security office that he traveled to Canada during this business 
trip (Ex. 4.). But there is no evidence that he told the security office of the sexual liaison 
with the foreign national. In 2002, Applicant began an online personal relationship with a 
social worker in Canada. While they never met in person, he became “emotionally 
connected” to her, and they had online contact of a sexual nature. (Ex. 3; 4.) He did not 
report his contact with this Canadian citizen to security officials at work. (Tr. 113.) 
 
 Applicant had an online friendship with a married U.S. homemaker that eventually 
became intimate. Plans to meet her in person in the United States fell through due to 
hurricane activity. He stored over 100 nude phones of her on his personal computer, 
engaged in cyber and phone sex with her in 2004, and received locks of her hair.
3
 He 
disclosed to her that he had a security clearance (Ex. 3; Tr. 138, 142.), and she jokingly 
referred to him as “Special Agent Man” and “Gov Man.” (Ex. 3; Tr. 141-42.) Applicant met 
her through his duties as host of an online radio show from 2004 to 2008, and not from his 
online gaming activities. (Tr. 78, 102, 137.) 
 
 Sometime between 2003 and 2004, Applicant brought his cellular phone with him 
into the workplace on two occasions when he should have secured it in the car. As soon as 
he realized he had the phone on him, he left the premises and put the phone in his vehicle. 
(Tr. 115.) Applicant did not inform security officials of his inadvertent violations of security 
procedures. Applicant believed that under facility policy, a note of this minor security 
infraction would have been placed in his record for one year and then purged if no further 
infractions. Applicant gave no specific reason for not reporting the infractions other than 
that he thought he handled it in an acceptable manner at the time. (Tr. 116.)  
 
 In at least May 2004, he used an unclassified work computer without authorization 
on six occasions to contact women with whom he had online contact of a sexual nature. 
                                                 
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Applicant testified that ninety percent of their contacts involved non-sexual matters, and that “on a couple of 
occasions it crossed the line into a sexual type conversation and then that was it.” (Tr. 138.) However, he 
previously acknowledged when he appealed the revocation of his special access in March 2005 that he had 
100 nude photographs of her stored on his personal computer. (Ex. 3.) Their intimate relationship cannot 
reasonably be characterized as limited to a couple of sexual type conversations. 
 
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(Ex. 3.) He denies that the content of his instant messages had a sexual nature. It was “just 
conversation, how are you doing, what‟s going on, what are you doing.” (Tr. 149.) Applicant 
does not consider this use of the work computer to be unauthorized because there were no 
specific guidelines regulating access to the Internet through his particular computer at the 
time. (Tr. 124-25.) Applicant corresponded via instant messaging on this unsecured 
computer during breaks. (Tr. 125-26.) He knew access to instant messaging was permitted 
because he had authorized use for school studies and that access to pornographic sites 
was prohibited. (Tr. 148.) 
 
 Only two of the women (the married Canadian teacher and the married U.S. 
homemaker) knew his location in foreign country X (Tr. 139), and few of the women knew 
he held a clearance. (Ex. 3.) Applicant‟s spouse testified that she “pretty much knew” that 
he engaged in activities of a sexual nature online at the time. (Tr. 68.) They argued over his 
online activities, which he saw as fairly innocent. (Tr. 79.) 
 
 In October 2004, Applicant underwent another polygraph examination, which he 
understood was a routine, five-year update for his special access. (Tr. 128.) Apparently 
during a polygraph concerning counterintelligence issues (Tr. 98), Applicant reported two 
foreign national contacts from on-line gaming activities. He admitted that he had online 
contact of a sexual nature as well with women from the United States that he maintained 
through instant messaging. He volunteered that he had telephone contact with two 
Canadian women, including one woman with whom he had an affair while on his business 
trip in October 2001. Applicant indicated that but for three instant messages sent from an 
unclassified computer at work in May 2004, he corresponded via his home computer. 
Applicant acknowledged that his spouse was unaware of his sexual activities. Given the 
opportunity to explain himself in detail during a subsequent interview, Applicant indicated 
that he had 50 to 100 sexual encounters with over 50 different women during online 
games, had engaged in phone sex twice with the Canadian with whom he had the affair, 
and furnished personal data to her. He acknowledged that he had misused his unclassified 
computer at work at least six times for these online contacts. And in response to 
counterintelligence inquiries, Applicant disclosed that he had failed to report to his security 
officer that he had brought his cell phone into his work without authorization on two 
occasions, had failed to properly mark classified documents that he generated (Tr. 117), 
had brought six music compact disks into work without having them scanned, had 
inadvertently removed a classified disk from the worksite in 1997, and had failed to protect 
classified information in an area where uncleared persons worked in 1994. (Ex. 3.) 
 
 Applicant‟s SCI access was suspended on October 22, 2004, and then revoked on 
December 9, 2004 (Ex. 5), for withholding information during security processing, foreign 
influence and failure to report continuing contact with foreign nationals, sexual behavior 
showing poor judgment, negligent security practices, and his disclosure of job-related 
information to foreign nationals. Applicant appealed the revocation, contending in part that 
he had never been trained or briefed on the security standards set forth in Director of 
Central Intelligence Directive 6/4. Applicant indicated that while those persons to whom he 
disclosed his profession of aerospace engineer seemed impressed, he did not freely give 
out information about his occupation or location. As for the concerns that he only provided 
 
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additional details when confronted, Applicant denied he intentionally concealed any 
information. He withheld details which he believed had nothing to do with his national 
security work. Moreover, he was not allowed to explain his activities, and was told to admit 
that he engaged in activity if he was 51% assured that it took place. Having had time to 
reflect, Applicant revised his estimate of cyber sex encounters “to no more than twenty 
occasions with no more than five characters.” The decision to revoke his SCI access was 
upheld, and Applicant was informed that he could reapply for program access in 
September 2006. (Ex. 3.) 
 
 With the revocation of his special access, Applicant could no longer work on the 
program or remain a resident in country X without a job since he was in the country on a 
work visa. He uprooted his family and they moved to the United States in February 2005 
(“We were unceremoniously dumped at the airport in L.A. with nothing. I had no job, I had 
no car, I had no place to live. We had nothing.”). (Tr. 104.) Applicant was not given the 
usual 30 to 60 days of coverage on an overhead job number while he looked for another 
assignment in the company because of the circumstances under which he lost his 
overseas placement. (Tr. 104.) Applicant had to explain to his wife why they were forced to 
leave her native country. He told his spouse that he had an online relationship with the 
Canadian social worker, which she apparently had known about since “early in 2000” (Tr. 
73), and that he had engaged in cyber sex. However, he kept silent about his extramarital 
affair with the Canadian teacher. (Ex. 3; 4; Tr. 72.) He hid it because “that‟s what guys do” 
(Tr. 103), and he “could not bear the spectacle or the idea of causing more hurt to her at 
that time.” (Tr. 105.) Applicant testified that his spouse knew about the U.S. homemaker 
because the two women “exchanged recipes and things like that.” (Tr. 139.)  
 
 Over the next few months, he looked for other employment opportunities within the 
company. (Ex. F.) In April 2005, Applicant began working as a command controller on a 
satellite program, which necessitated moving his family to their present locale. He 
continued to pursue ways of increasing his value to his employer, as he had in the past. 
(Ex. K; P) In April 2006, he was promoted to operations controller. (Ex. K; N.) In January 
2008, he assumed his present position as operations manager. (Ex. K; M; N.) 
 
 On February 2, 2009, Applicant completed an Electronic Questionnaire for 
Investigations Processing (e-QIP) for a Secret-level security clearance. (Tr. 106.) He 
disclosed that his SCI access had been suspended for one year from January 2005. (Ex. 
1.) On March 19, 2009, Applicant was interviewed by an Office of Personnel Management 
(OPM) investigator about his past relationships with foreign nationals. He acknowledged 
his affair in 2001 with the Canadian teacher, which remained secret to his family and 
friends, including his spouse. He indicated that he would inform his spouse about the affair 
if his continued concealment prevented him from getting a security clearance. Applicant 
maintained that he had told his spouse about his online relationship with the Canadian 
social worker, with whom he claimed to have contacted only six times since 2002. 
Applicant attributed his sexual contacts to him and his wife leading separate lives at the 
time. He was working a lot and she had her activities, family, and friends. He denied he 
would be subject to blackmail because of these relationships, or that he intended to have 
another affair or Internet relationship because of the price he and his family had already 
 
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paid. Applicant explained his security infractions, which were inadvertent, and he continued 
to maintain that the suspension of his clearance had been unjustified. (Ex. 4.) 
  
 On December 16, 2009, Applicant indicated to DOHA that he did not see any good 
that would arise from informing his spouse of his marital indiscretion. However, if it 
remained the only hurdle to overcome for him to be granted a clearance, he would tell her 
of the affair. (Ex. 4.) On March 15, 2010, DOHA issued the original SOR to Applicant 
alleging in part that his spouse was unaware of his cyber sex or his extramarital activities or 
both. Applicant received the SOR on April 1, 2010. On April 15, 2010, he informed his 
spouse of his affair with the Canadian teacher.
4
 (Tr. 67.) 
  
 Applicant‟s marriage has improved significantly since they moved to the United 
States. (Tr. 68.) Applicant‟s spouse does not believe that Applicant is continuing to hide 
things from her. He has exhibited remorse to her and “a big turnaround in his behavior.” 
(Tr. 70.) Specifically, he spends his time outside of work with her and their children. He is 
no longer involved in online gaming activities or in the online radio show. (Tr. 78, 102.) 
Applicant found that the radio show was “too much of a magnet for these types of people 
who liked to engage in this kind of activity.” (Tr. 103, 140.) 
 
 At his October 2010 hearing, Applicant acknowledged that he last engaged in cyber-
sexual activity “roughly one year ago,” through Internet chat with one of the listeners of his 
radio show. (Tr. 150-51.) He had helped her through a difficult part of her life and she 
“found him very impressive and very this and very that. We got carried away, crossed the 
line, but [this conduct is] not to be repeated.” (Tr. 151-53.) Applicant denies, and there is no 
evidence that he engaged in any cyber-sexual activities after 2005 until this latest episode 
around October 2009. Applicant expressed remorse for his cyber-sexual activities and 
extramarital affair, and for “not explaining those and confessing to those earlier than I had.” 
(Tr. 130-31.) He believes that he and his family paid a “tremendous price” and he does not 
intend to engage in similar conduct in the future. 
 
 Applicant‟s present coworkers fully support his application for a security clearance. 
(Ex. A; C-D; G; I; Tr. 45-48, 52-55, 61-63.) A member of Applicant‟s team for over the past 
two years has known him to be loyal to their mission, unbiased, flexible in scheduling 
matters, competent, and trustworthy. She reports that Applicant is “viewed as a good family 
man away from work.” (Ex. A.) A peer of Applicant‟s, who serves as manager of an 
engineering group, has worked with Applicant on a wide range of program and personnel 
                                                 
4 
Concerning his decision to inform his spouse in 2010 about his extramarital affair, he responded: 
 
I decided to tell her because although my ultimate goal is to be able to get my special access 
back, once I was eligible again, which I am based on the Statement of Reasons, the agency 
put on an additional burden to me that I had to be granted a DoD secret clearance to show 
that I could get a clearance before they would consider my special access. And then when I 
applied, I got this correspondence from the Government, essentially the Statement of 
Reasons, which made it very clear that until the Statement of Reasons—the items on the 
Statement of Reasons could be cleared, they obviously weren‟t going to grant me a security 
clearance. (Tr. 106.) 
 
 
 9 
issues. Applicant “kept his cool” during an unexpected loss of telemetry in October 2008 
and played “a critical role” in the response and recovery from the system anomaly. This 
manager is aware of the SOR allegations,
5
 which are not in character with his experience 
of Applicant as a dedicated professional with high ethical and personal standards. (Ex. C; 
Tr. 45-48.) A mission planning manager also aware of the SOR allegations has found 
Applicant to be patient as a mentor, a thorough planner, and fair and honest. When a 
mistake by a member of Applicant‟s team led to significant downtime for the program in 
August 2009, Applicant treated it as an opportunity to improve training for the entire 
operations group rather than focus blame on the culpable employee. (Ex. D; Tr. 53-54.) A 
manager, who works for the astrophysical laboratory contracted to operate the satellite 
system, opines that Applicant is committed to team success in all facets of flight 
operations. (Ex. B.) Applicant was nominated for a company president‟s award for his 
contributions to the satellite program in 2009. (Ex. J.) For the 2007 (Ex. O) and 2008 (Ex. 
N) ratings periods, his performance was rated as “exceeds performance requirements.” For 
2009 (Ex. M), his overall performance was rated as “meets performance requirements.” 
 
Policies 
 
The U.S. Supreme Court has recognized the substantial discretion the Executive 
Branch has in regulating access to information pertaining to national security,  emphasizing 
that “no one has a „right‟ to a security clearance.” Department of the Navy v. Egan, 484 
U.S. 518, 528 (1988). 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 mitigating conditions, which are required to 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. 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 to obtain a favorable security decision. 
 
                                                 
5 
These coworkers were apparently not informed until shortly before Applicant‟s October 2010 hearing on 
his clearance eligibility. (Tr. 47, 56.) 
 
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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. 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. 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 security concern about personal conduct is set out in Guideline E, 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 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. 
 
 Personal conduct concerns arise because of Applicant‟s inappropriate conduct while 
on business and misuse of a work computer to maintain contacts with online sexual 
partners; unrelated security infractions; and concealment of information that could 
negatively impact his personal, professional, or community standing. Applicant estimated in 
an October 2004 polygraph interview that he had engaged in cyber sex with over 50 
women between 50 and 100 times through online gaming activities (SOR 1.b). In March 
2005, in response to the revocation of his special access, he revised his estimate to no 
more than five anonymous women on 20 occasions. Cyber sex involving 50 women would 
tend to suggest a problem controlling the behavior that may not be so if only five women 
were involved. While some overestimation is to be expected, it is difficult to believe that 
Applicant would have volunteered that he had cyber sex with over 50 women if he was 
involved with only a handful. That said, private sexual contacts between consenting adults, 
whether in person or online are not of concern, unless they reflect questionable judgment 
or create a vulnerability to exploitation, manipulation, or duress. See AG ¶ 16(e), “personal 
conduct, or concealment or 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.” 
 
 Applicant displayed poor judgment by providing personal information about his 
location and clearance status to at least two women, one of whom was a foreign national 
 
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(SOR 1.c). Even if he was unaware of any specific prohibition against informing others 
about his security clearance, and he revealed his clearance status to avoid further 
questions about his job, he heightened his risk of vulnerability through this lack of 
discretion. Moreover, Applicant‟s rendezvous with a Canadian national while he was on a 
business trip to the United States for his employer in October 2001 was inconsistent with 
the good judgment and discretion required of those persons holding special access. 
Apparently, he informed his site FSO that he had traveled to Canada. Applicant‟s current 
employer has no record that Applicant reported any foreign contact. (Ex. 7.) Accounting for 
the possibility that the onsite FSO failed to document Applicant‟s foreign contact, there is 
no evidence to indicate that Applicant revealed to his employer that he had a sexual liaison 
with the Canadian citizen. It is noted that he never reported his contact with the Canadian 
social worker to his employer. Furthermore, Applicant concealed his marital infidelity from 
his spouse until April 2010. AG ¶ 16(e) is implicated because of his inappropriate conduct 
while on a business trip and his concealment of the sexual liaison. 
 
 In light of Applicant‟s denial, the Government has the burden of establishing by 
substantial evidence that Applicant deliberately withheld information concerning his cyber 
sex and affair during polygraph testing in October 2004 (SOR 1.f). Available information 
substantiates that during the polygraph testing process, Applicant reported two foreign 
national contacts through online gaming; that he had contact through instant messaging, 
including on three occasions from work, with some foreign nationals as well as some U.S. 
women with whom he had cyber-sexual relations; that he revealed his occupation, 
clearance status, and location to at least two of the women; and that he had telephone 
contact with one Canadian, and telephone contact and a sexual liaison while on business 
travel with another Canadian. The Government agency that revoked Applicant‟s special 
access also reported that Applicant only provided details when confronted. Furthermore, 
during his subsequent interview, Applicant indicated that he had 50 to 100 cyber sex 
encounters with over 50 different women; that he had withheld information regarding his 
relationships during the polygraph; that when he met the Canadian citizen with whom he 
had a sexual liaison, he wore the jacket with patches later determined to be classified; and 
that he used a computer at work on at least six different occasions to contact his online 
sexual partners. (Ex. 3.) Applicant submits that he volunteered the information about his 
affair with the Canadian teacher during the polygraph, when he was not asked lifestyle 
questions. (Tr. 111.) He maintains he was not allowed to explain until his interview, when 
he was told to disclose any wrongdoing, and any conduct if it was more likely to have 
happened than not in accord with what Applicant described as the 51% rule. (Tr. 99.) 
Consequently, he overestimated the extent of his sexual contact during that interview. 
 
 No report from the polygraph examiner was made available for my review, and I 
cannot speculate as to the questions asked or their context. That said, the evidence tends 
to show some minimization by Applicant during polygraph processing as to the extent of his 
cyber-sexual activities. When he appealed the revocation of his special access, Applicant 
did not dispute that he had withheld information regarding his cyber sex relationships 
during the polygraph examination (“At times I have not disclosed information that I believed 
at the time had [sic] were outside the bounds to a CI polygraph i.e., the information had 
nothing to do with my work of national security . . . the information pertained to my personal 
 
 12 
life.”). (Ex. 3.) AG ¶ 16(b), “deliberately providing false or misleading information 
concerning relevant facts to an employer, investigator, security official, competent medical 
authority, or other official government representative,” applies. 
 
 As for using instant messaging at work to correspond with some of the women with 
whom he had cyber sex (SOR 1.i), Applicant asserts that the content of his messages was 
not sexual in nature, and that he used the computer while on breaks. Since the computer 
was apparently not approved for processing of classified information, his employer could 
have authorized limited Internet access and instant messaging for legitimate purposes. Yet 
it is difficult to see where correspondence with online sex partners could be viewed as 
legitimate, even if the content did not cross the line. Instant messaging, unlike web-surfing, 
is a two-way conversation. Given the sexual nature of his relationships with these women, 
Applicant had no assurance that their messages back to him would be free of sexual 
innuendo or comment. Even if there was no express prohibition against instant messaging 
for benign personal reasons, this misuse of the computer falls within AG ¶ 16(d), which 
provides in pertinent part: 
 
(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. 
 
Concerning Applicant‟s admitted violations of security procedures (SOR 1.g), 
Applicant removed a highly classified disk from the worksite while on business in Europe in 
1997, but by all accounts, his conduct was inadvertent and he reported his violation. As for 
him taking homemade music disks into work, Applicant assumed it was permissible 
provided he did not then take the disks home and they were not inserted into a work 
computer. As of 2009, company policy expressly stated that homemade compact disks 
were to be confiscated and destroyed. (Ex. 6.) Without evidence establishing that this 
security policy was in place between 1999 and 2002, I cannot conclude that Applicant 
knowingly violated a security procedure concerning bringing music CDs into work. In 
contrast, Applicant had been briefed on his security responsibilities. He knew or should 
have known that he had to mark self-generated classified documents at the appropriate 
level (SOR 1.g(2)). Moreover, while he may have inadvertently brought his cell phone to 
the workplace on two occasions between 2002 and 2004 (SOR 1.g(1)), he knew at the time 
that a memo would likely be placed in his file if he reported his violation. (SOR 1.g(1)). His 
failure to report his violation was intentional and an exercise of poor judgment. His security 
infractions are now dated, but together with the other conduct of concern under Guideline 
E (his minimization of his online cyber-sexual activities during polygraph processing in 
2004, his involvement in cyber sex with foreign nationals, his sexual liaison with a 
Canadian citizen while on a business trip for his employer, his concealment of that affair 
from his spouse until after he received the SOR, and the poor judgment exhibited by 
 
 13 
instant messaging his online sex partners at work), AG ¶ 16(c) is clearly established. That 
disqualifying condition is as follows: 
 
(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. 
 
Concerning potential factors in mitigation, AG ¶ 17(a), “the individual made prompt, 
good-faith efforts to correct the omission, concealment, or falsification before being 
confronted with the facts,” partially applies. Applicant disclosed in his 2004 interview more 
extensive cyber-sexual activity than he had revealed during polygraph processing. This 
rectification is undermined somewhat by his subsequent efforts to minimize the 
seriousness and extent of his cyber-sexual activity, i.e., it involved in retrospect only five 
different women; he was authorized to use instant messaging at work and his contact with 
his cyber-sexual partners through the work computer did not have sexual content. See Ex. 
3; Tr. 100, 125. So AG ¶ 17(a) is not entitled to controlling weight. 
 
AG ¶ 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,” is 
implicated in part. Since Applicant began his present assignment in August 2005, he has 
not violated security procedures by bringing his cellular phone to the worksite without 
authorization, by bringing homemade music CDs into work (which has been prohibited 
since 2009 if not before then), by removing any classified information from secured 
premises or otherwise failing to protect classified information, or by failing to mark 
classified documents properly. So much time has passed without recurrence to mitigate the 
judgment concerns raised by the conduct alleged in SOR 1.g. Applicant‟s failure to report 
known security infractions to his employer (SOR 1.h) is considered ongoing, however, in 
light of evidence showing that his employer has no known record of him having violated 
security procedures. Also, while ten years have passed since his sexual liaison with the 
Canadian teacher during the October 2001 business trip, even if I accept that he notified 
his onsite FSO in 2001 of the foreign contact, available information does not show that he 
reported the sexual nature of his contact or that he ever told his employer of his contact 
with other foreign nationals, including the Canadian social worker with whom he had cyber 
sex. Similarly, while he acknowledges that he contact some of his online sexual partners 
through a work computer, his failure to acknowledge his lack of good judgment in that 
regard precludes me from applying AG ¶ 17(c) to that conduct, despite the passage of time 
without recurrence. 
 
Applicant has taken significant steps, albeit some very belated, to reduce his 
vulnerability to exploitation, manipulation, or duress by informing his spouse about his 
marital indiscretions. See AG ¶ 17(e) (stating, “the individual has taken positive steps to 
reduce or eliminate vulnerability to exploitation, manipulation, or duress”). When his special 
 
 14 
access was revoked in 2005, he informed his spouse about his cyber-sexual activities, but 
not of his extramarital affair. He did not want to tell her “simply because that is what guys 
do.” He also did not want to deal with the ramifications that held for his marriage at the 
time. (Tr. 103.) After he received the SOR, he told his spouse about his affair. The 
coworkers who testified on Applicant‟s behalf were informed of the allegations in the SOR, 
although not until a few weeks (Tr. 49), and in one case one week (Tr. 56.) before 
Applicant‟s October 2010 hearing. Because his spouse is aware of the affair and of his 
other marital indiscretions, Applicant has largely mitigated concerns alleged in SOR 1.d. of 
his vulnerability. 
 
 However, by engaging in cyber-sexual contact around October 2009, with a listener 
of his Internet radio show, Applicant undermines substantially his case for mitigation under 
AG ¶ 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.” Applicant submitted in appeal of his March 2005 revocation of 
his special access that besides his family, having program access was “the most important 
and precious part of [his] life.” (Ex. 3.) He indicated to an OPM investigator in March 2009 
that he would never have another affair or Internet relationship again because he and his 
family had paid a heavy price by having to move to the United States. (Ex. 4.) The Internet 
chat occurred off-duty, between consenting adults. It seemingly does not make him 
vulnerable because his spouse knows about it. Nonetheless, it occurred after he had 
terminated his radio show because it raised the potential for cyber-sexual activities. Doubts 
about his judgment and his willingness or ability to stand by his commitments persist. 
 
 Furthermore, while Applicant‟s candor about this latest incident weighs in his favor, it 
does not completely mitigate the Personal Conduct concerns raised by his years of 
concealment of his extramarital affair from his spouse, his minimization of his sexual 
indiscretion during polygraph processing, and his failure to comply with reporting 
requirements concerning matters that could impact his clearance or access eligibility. 
Applicant testified that he now knows that he has to report himself “if a mistake occurs.” 
(Tr. 130.) But he also continues to justify his failure to report (e.g., “Specifically [the 
Canadian social worker], she was not ever reported, but that was never a physical contact”) 
(Tr. 113.); he thought he handled the cellular phone matter “in an acceptable manner at the 
time” (Tr. 116); concerning his use of the work computer to send instant messages to his 
sexual partners, “I know for a fact that using that particular computer for personal use was 
fine because many people did it” (Tr. 125.)). 
 
 AG ¶ 17(f), “the information was unsubstantiated or from a source of questionable 
reliability,” applies only to SOR 1.g(3), bringing six homemade music compact disks into 
the office between 1999 and 2002 without having them scanned. Applicant indicated in 
March 2005 that he was unaware of any prohibition at that time. The Government‟s 
evidence to the effect that homemade compact disks will be confiscated by Applicant‟s 
employer is from a 2009 annual security refresher briefing, well after the conduct at issue. 
 
 15 
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 his conduct and 
all relevant circumstances in light of 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. 
 
Applicant has earned the respect of those coworkers in his current job assignment 
for his dedication, ethical behavior, and flexibility as a manager. The evidence of 
Applicant‟s value to his employer is undisputed, but it is not enough to overcome the 
Personal Conduct concerns, which when taken as a whole, show questionable judgment, 
untrustworthiness, and unreliability on Applicant‟s part. He has appropriately expressed 
remorse for his personal indiscretions (“it was the wrong thing to do”) and for his failure to 
report. (Tr. 130-31.) Yet he continues to see himself as victimized by women attracted to 
cyber-sexual activities (“I should have been stronger and [not] to let myself get lured into 
those types of activities”) (Tr. 130.); by a polygraph process that he found demeaning, did 
not allow him to explain, and pressured him into exaggerating (Ex. 3; Tr. 100); by an 
employer who dispatched him from his overseas assignment without any overhead 
coverage (“we were unceremoniously dumped at the airport in L.A. with nothing”) (Tr. 104); 
and even by a Government that has placed a stipulation on him to obtain a security 
clearance that he believes is not normally required for program access. (Tr. 143.) He has 
yet to fully mitigate the Personal Conduct concerns for the reasons already noted. 
 
Formal Findings 
 
Formal findings for or against Applicant on the allegations set forth in the amended 
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:  For Applicant 
 Subparagraph 1.e:  Against Applicant 
 Subparagraph 1.f:  Against Applicant 
 Subparagraph 1.g:  For Applicant 
 
 16 
 Subparagraph 1.h:  Against Applicant 
 Subparagraph 1.i:  Against Applicant 
 
 Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is denied. 
 
 
________________________ 
Elizabeth M. Matchinski 
Administrative Judge