KEYWORD: Guideline B; Guideline E
DIGEST: In 2011, Applicant’s long-term close contact with foreign national friends, his
relationship with a female 17-year-old Chinese national, and his failure to timely file his federal
income taxes triggered the applicability of Guideline E disqualifying conditions.  The Judge’s
conclusion that no mitigating conditions applied is sustainable.  The Judge concluded that
essentially the same conduct was mitigated under Guideline B.  These Guideline B conclusions
are fundamentally at odds with the Judge’s conclusions under Guideline E, where he stated that
Applicant engaged in questionable recent behavior that placed him in a position of vulnerability
to be exploited by foreign governments.  The record evidence supports the Judge’s conclusions
about Applicant’s foreign connections under Guideline E and does not support the contrary
ultimate conclusion under Guideline B.  Adverse decision affirmed.
CASENO: 10-10307.a1
DATE: 07/18/2012
DATE: July 18, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-10307
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
John Bayard Glendon, Esq., Deputy Chief Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On July 20, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline B (Foreign Influence) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On April 2, 2012, after the hearing,
Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance.  Applicant
timely appealed, and Department Counsel timely cross-appealed, pursuant to the Directive ¶¶
E3.1.28 and E3.1.30.  
Applicant raises the following issue on appeal: whether the Judge’s conclusions under
Guideline E were arbitrary, capricious, or contrary to law.  Department Counsel raises the following
issue on appeal: whether the Judge’s conclusions under Guideline B were arbitrary, capricious, or
contrary to law.  For the following reasons, the Board affirms the Judge’s unfavorable security
clearance decision. 
The Judge made the following findings of fact:  Applicant is 38 years old.  He has never been
married and has no children.  He has a bachelor’s and a master’s degree.  He served in the U.S.
military from 1997 to 1999 as an enlisted man, and as an officer from 2002 to 2004.  He received
a medical disability discharge with severance pay.  From about 1997 to 2011, Applicant traveled
frequently to many foreign countries, including the People’s Republic of China, Russia, Cambodia,
Thailand, Malaysia, Indonesia, Singapore, Philippines, South Korea, Japan and Vietnam.  Most of
his travel was to visit with friends and tour the country.
Applicant used the Internet and other social media to stay in close contact with his extensive
number of foreign national friends residing in the United States or in their home countries, and to
establish new relationships.  He would meet people online, establish a friendship with them, and
then he would travel to the different foreign countries to visit them.  Applicant sent nude pictures
of himself over the Internet to online girlfriends in China, Thailand, and Brazil.  He engaged in
sexual intercourse in Thailand, the Philippines, and China with online friends.  He also maintained
correspondence with an Iranian national residing in the United States that he met online in 1998.
Applicant had numerous foreign nationals as roommates in college.  In June 2010, he had been
sharing a room with a Thai citizen since March 2010.  
In 2008, Applicant met online a 17-year-old resident and citizen of China.  They became
close friends.  In early 2009, they exchanged naked pictures of themselves over the Internet.
Applicant convinced her to share an apartment with him while she was attending college in the
United States.  In September 2009, she obtained a restraining order against Applicant, alleging that
he posed a substantial likelihood of immediate danger and abuse against her.  Applicant informed
his facility security officer of the order filed against him.  He also disclosed the order in his 2010
security clearance application (SCA).  
Question 19 on Applicant’s 2010 SCA asked whether he has or had close/or continuing
contact with foreign nationals within the last seven years with whom he is bound by affection,
influence and/or obligation.  Applicant admitted his long-term contact with some foreign nationals,
but claimed that he did not have a close relationship with any of them, and that he was not bound
by affection, influence, or obligation to any of his foreign friends.  Although Applicant did not
disclose in his SCA any of his long-term relationships with foreign nationals, he provided a detailed
account of most of his foreign travel and indicated that the purpose of his travel was to visit with
friends.  Applicant did not disclose in his answer to Question 19 his relationship with the Chinese
national.  However, he provided a detailed account of his relationship with the Chinese national in
his answer to Section 28 (Involvement in Non-Criminal Court Actions) of his SCA.  
Elsewhere in his SCA , Applicant disclosed the following adverse information: he left a job
under unfavorable circumstances, he has financial problems, he accumulated a debt to a prior
employer for his personal use of a corporate credit card, and he failed to timely file his 2006 income
tax return.  Regarding the credit card, Applicant credibly testified that his employer allowed him to
use the card to pay for combined business and personal travel expenses while attempting to get a
business contract in a foreign country.  Applicant agreed to reimburse the company if he was unable
to get the contract.  The quest failed.  Applicant established a repayment plan.  The company kept
Applicant’s last pay check ($1,525) and wrote off the remaining $400.  In 2009, the IRS contacted
Applicant about the delinquent 2006 tax return and the resulting $1,500 tax debt.  Applicant failed
to resolve his tax problem after he submitted his 2010 SCA, after he was interviewed by a
government investigator in June 2010, and after he answered DOHA interrogatories in 2011.  He
did not file his 2010 income tax return until December 2011.  He filed his 2006 income tax return
with his 2010 income tax return.  
At his hearing, Applicant acknowledged that he acted immaturely in his relationship with
the Chinese national and that emailing naked pictures of himself and receiving naked pictures of his
foreign girlfriends was inappropriate behavior.  He expressed remorse for his behavior.  He claimed
that he stopped using social media to stay in contact with his foreign friends in about 2009.  
The Judge reached the following conclusions: Applicant has an extensive number of long-
time friends who are foreign nationals.  He maintained frequent contact with his foreign friends via
online social networking.  He traveled extensively to foreign countries to visit with his foreign
friends, to tour the foreign countries, and to make new friends.  Applicant exchanged naked pictures
of himself and engaged in sexual intercourse with foreign nationals.  He shared his apartment with
foreign nationals and maintained frequent online contact with some of these roommates.  The burden
shifted to Applicant to produce evidence and prove a mitigating condition.  The relationship of some
of the foreign countries with the United States placed a significant burden of persuasion on
Applicant to demonstrate that his travel to those countries and his relationships with his foreign
national friends did not pose a security risk.  Applicant has had access to classified information since
1997.  Except for the SOR allegations, there was no evidence that he was involved in any prior
incidents raising security concerns.  He is considered to be dependable, trustworthy, honest, and with
good judgment.  He displayed poor judgment and placed himself in a vulnerable position through
his actions.  Notwithstanding, the evidence as a whole supported a determination that Applicant’s
ties and sense of obligation to the United States are sufficiently strong that he could be expected to
resolve any conflict of interest in favor of the United States.  On balance, and considering the
evidence as a whole, Applicant mitigated the Guideline B security concerns.
The Government established a case for disqualification under Guideline E.  Applicant
admitted his continuing contact with his foreign national friends.  His claim that he did not have a
close relationship with any of his friends, or that he was or is not bound by affection, influence,
and/or obligation is belied by the record in this case.  The Judge found that Applicant did not
deliberately falsify his January 2010 SCA, even though he was required by the question to disclose
relationships beyond just a mere friendship.  He provided a detailed account of most of his foreign
travel and indicated that the purpose of his travel was to visit with friends.  He also provided a
detailed account of his relationship with the Chinese national in his answer to another SCA question.
Concerning the corporate credit card, Applicant’s company authorized his personal use of the card
for a business development venture.  Thus no conduct of security significance attached.  Applicant
demonstrated extremely poor judgment when he befriended a 17-year-old Chinese national,
exchanged naked pictures online, developed something more than a friendly relationship, entered
into an agreement to share an apartment, and rented an apartment for the Chines national and her
father to occupy.       
   Applicant’s failure to timely file his 2006 and 2010 federal income tax returns were of
concern.  He provided no reasonable explanation to justify his failure to timely file his 2006 income
tax return.  He did not file his 2006 and 2010 income tax returns until after his security clearance
hearing.  
Considering the evidence as a whole, Applicant’s long-term close contact with foreign
national friends, his relationship with the Chinese national, and his failure to timely file his federal
income taxes triggered the applicability of Guideline E disqualifying conditions.  No mitigating
conditions applied.  Applicant’s questionable behavior was recent and it occurred during many
years.  Applicant’s long-term friendship and continued contact with citizens of nations whose
governments are known to conduct intelligence operations against the United States created a
concern.  Applicant’s exchange of nude pictures and having sexual relationships with foreign
nationals placed him in a position of vulnerability to be exploited by those foreign governments.
Although he did not falsify his application, his failure to disclose his long-term contacts with foreign
nationals raised security concerns.  Applicant failed to comply with his legal obligation to timely
file and pay his taxes.  His late filing did not mitigate the fact that he demonstrated poor judgment
and an unwillingness to comply with rules and regulations.  Security concerns under Guideline E
were not mitigated.  Under the whole-person concept, Applicant received credit for his service to
the United States, his good work for federal contractors, and his many years of holding a security
clearance without incident.  Nevertheless, Applicant’s behavior demonstrated poor judgment and
showed his unwillingness to comply with rules and regulations.
Applicant argues both that the Judge failed to discuss the applicability of Guideline E
mitigating conditions and that the discussion he did engage in was inadequate.  Applicant’s first
point lacks merit, in that the Judge clearly engaged in a discussion regarding the Guideline E
mitigating conditions.  After a review of the Judge’s decision, the Board concludes that Applicant’s
1“[T]he 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[.]”
2“[T]he 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[.]”
3“[T]he individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation,
or duress.”
second assertion lacks merit as well.  The Judge specifically listed ¶ 17(c)1, ¶ 17(d)2, and ¶ 17(e)3
as three conditions under Guideline E that could potentially mitigate the personal conduct concerns.
He then went on to comment upon the recency and continuous nature of Applicant’s conduct
regarding foreign nationals, and noted that the conduct took place with citizens of other countries
whose governments are known to conduct intelligence operations against the United States or have
interests inimical to the United States, thus creating a position of vulnerability.  These factors
support the Judge’s conclusion that ¶ 17(c) did not work to mitigate the Government’s security
concerns.  ¶ 17(d) and ¶ 17(e) are basically concerned with steps the Applicant has taken to reduce
the likelihood of future untrustworthy, unreliable behavior or vulnerability to exploitation,
manipulation, or duress.  While the Judge’s discussion of these mitigating conditions is less explicit,
he does cite Applicant’s continued contact with foreign nationals and the fact that Applicant did not
file his taxes until December 2011.  These facts undercut the notion that Applicant has changed his
behavior or taken steps to overcome doubts about his behavior.  While the Judge could have
discussed the applicability of ¶ 17(d) and ¶ 17(e) in more detail, decisions of Administrative Judges
are not measured against a standard of perfection.  See, e.g., ISCR Case No. 00-0311 at 2 (App. Bd.
Mar. 8, 2001).  After a review of the decision, the Board concludes that the Judge’s discussion of
the Guideline E mitigating conditions, though perfunctory at points, was adequate.
Applicant argues that his conduct under Guideline E was mitigated and that the Judge erred
by not so concluding.  He states that he no longer uses social networks for contacting foreign
nationals and that he kept his employer’s security officer fully appraised of his travels and foreign
acquaintances.  These facts, though mitigating, do not mandate an ultimate finding in Applicant’s
favor.  To the extent that Applicant asserts that specific mitigating conditions have been met, such
arguments amount to a mere disagreement with the Judge’s weighing of the evidence.  This is
particularly true when the totality of the record evidence is considered under Guideline E.  That
evidence is comprised of the disparate activities of failure to file federal income taxes in a timely
fashion, frequent travel to various foreign countries for personal reasons, including meeting women,
and engaging in on-line social networking with multiple foreign women.  This evidence provides
a reasonable basis for the Judge’s adverse security clearance decision.          
Applicant points out that the Judge found that he had mitigated the security concerns under
Guideline B but “oddly enough” he did not mitigate the exact same concerns under Guideline E.
Applicant notes that this is contradictory and asserts that this bolsters his argument that the Judge’s
adverse security clearance decision is unsustainable.  The Board concludes that the Judge’s findings
and conclusions under Guideline E are sustainable.  We now turn our attention to the Judge’s
findings and conclusions under Guideline B.
4“[C]onduct, especially while traveling outside the U.S., which may make the individual vulnerable to
exploitation, pressure, or coercion by a foreign person, group, government or country.” 
5“[T]he 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.[.]”
6“[T]here 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[.]”
Department Counsel cross-appealed, also noting the apparent contradiction between the
Judge’s findings and conclusions under Guideline E and those under Guideline B.  He argues that
the Judge erred in applying the Guideline B disqualifying conditions and by finding the Guideline
B security concerns mitigated.  Department Counsel’s position has merit.   
Department Counsel argues that the Judge erred by not applying ¶ 7(i).4 Given Applicant’s
extensive and repeated travel overseas and his activities with foreign nationals while there,
Department Counsel is correct in stating that this Guideline B disqualifying condition applies on its
face to the facts of this case.  The error is significant in that the omitted disqualifying condition
speaks in terms of vulnerability, particularly when traveling abroad, and the Judge mitigated the
Guideline B case ultimately by analyzing the case in terms of conflict of interest.  The Judge found
two Guideline B mitigating conditions, ¶ 8(a)5 and 8(b),6 applicable, and both speak in terms of
conflict of interest.  Applicant’s frequent travel outside the U.S. and the resulting friendships and
sexual relationships with foreign nationals, some of whom are citizens of countries with interests
inimical to those of the United States, makes this a case largely about vulnerability to exploitation,
coercion and duress.  While the Judge’s Guideline B analysis does not totally ignore this important
aspect of the case, the mitigating conditions he applies do not speak primarily to vulnerability, and
he does not adequately address the vulnerability aspect, in his mitigation analysis.   
The Judge stated that, in deciding whether Applicant placed himself in a position to be
exploited, he considered the form of government and relationship with the United States of the
foreign countries involved, three of whom were China, Russia, and Iran.  The Judge went on to say
that the relationship of some of these countries with the United States places a significant burden
of persuasion on Applicant to demonstrate that his travel to those countries, and his relationships
with his foreign national friends do not pose a security risk, and that he is not vulnerable to
manipulation.  The Judge then concluded that Applicant had mitigated the Guideline B case based
on his U.S. citizenship, his military service record, his unblemished security record, his reputation
for dependability and honesty, and his longstanding ties and sense of obligation to the United States.
While these favorable facts are matters that should be considered, the Judge does not explain how
they serve to satisfy the significant burden of persuasion he placed on Applicant to demonstrate how
his actions overseas and with foreign nationals were not a security risk.  Moreover, the Judge does
not explain how Applicant’s demonstrations of poor judgment, as manifested by his distribution of
naked pictures of himself to numerous girlfriends in foreign countries and his relationship with the
Chinese national, relate to his conclusion that Applicant can be expected to resolve any conflict of
interest in favor of the United States.  The Judge’s Guideline B conclusions are fundamentally at
odds with his conclusions under Guideline E, where he stated that Applicant engaged in
questionable recent behavior that placed him in a position of vulnerability to be exploited by foreign
governments.  The record evidence supports the Judge’s conclusions about Applicant’s foreign
connections under Guideline E and does not support the contrary ultimate conclusion under
Guideline B.  
The Board does not review a case de novo.  The favorable evidence cited by Applicant with
regard to both Guidelines B and E is not sufficient to demonstrate the Judge’s decision under
Guideline E is arbitrary, capricious, or contrary to law.  See, e.g., ISCR Case No. 06-11172 at 3
(App. Bd. Sep. 4, 2007).  After reviewing the record, the Board concludes that the Judge examined
the relevant data and articulated a satisfactory explanation for his decision under Guideline E,
“including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle
Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “The general standard is
that a clearance may be granted only when ‘clearly consistent with the interests of the national
security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  Therefore, the Judge’s
ultimate unfavorable security clearance decision is sustainable.
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jeffrey D. Billett       
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: William S. Fields      
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody       
James E. Moody
Administrative Judge
Member, Appeal Board