1 
 
                                                              
DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 14-04441 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Julie R. Mendez, Esq., Department Counsel 
For Applicant: Eric A. Eisen, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines K (Handling 
Protected Information), B (Foreign Influence), D (Sexual Behavior), and E (Personal 
Conduct). Eligibility for access to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (SCA) on October 24, 2013, 
seeking to continue his eligibility for access to classified information.1 On February 15, 
2015, the Department of Defense (DOD) sent him a Statement of Reasons (SOR) 
alleging security concerns under Guidelines K, B, D, and E. The DOD acted under 
Executive Order 10865, Safeguarding Classified Information within Industry (February 
20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security 
Clearance Review Program (January 2, 1992), as amended (Directive); and the 
adjudicative guidelines (AG) implemented by the DOD on September 1, 2006.  
 
                                                          
1 Applicant’s SCA was triggered by several Joint Personnel Adjudication System (JPAS) incident reports 
regarding conduct alleged the SOR. 
2 
 
 Applicant answered the SOR on March 16, 2015, and requested a hearing before 
an administrative judge. Department Counsel was ready to proceed on June 18, 2015, 
and the case was assigned to an administrative judge on July 18, 2015. It was 
reassigned to me on September 17, 2015. On October 6, 2015, the Defense Office of 
Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for 
October 19, 2015. I convened the hearing as scheduled.2 Government Exhibits (GX) 1 
through 4 were admitted in evidence without objection. Applicant testified and submitted 
Applicant’s Exhibits (AX) A through G, which were admitted without objection. DOHA 
received the transcript (Tr.) on October 29, 2015. I kept the record open to enable the 
parties to submit matters for administrative notice, discussed below. The record closed 
on December 16, 2015 
 
Administrative Notice 
 
 On December 3, 2015, I ordered Department Counsel to submit a brief and 
supporting documentation setting out the facts that she considered relevant regarding 
Japan and the Philippines. (Hearing Exhibit (HX) II.3) She responded on December 10, 
2015, and provided information regarding the Philippines, but not Japan. (HX III.) 
Applicant’s counsel responded to Department Counsel’s submission on December 16, 
2015 (HX IV). On January 5, 2016, I notified Department Counsel and Applicant’s 
counsel of my intention to sua sponte take administrative notice of relevant facts about 
Japan. (HX V.) The facts administratively noticed are set out below in my findings of 
fact. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted SOR ¶¶ 1.a, 1.b, 4.a, 4.b, and 4.d. 
He denied SOR ¶¶ 2.a, 3.a, 4.c, and 4.e. His admissions in his answer and at the 
hearing are incorporated in my findings of fact.  
 
 Applicant is a 44-year-old engineer employed by a defense contractor since 
1996. He has held a security clearance since February 1998. 
 
 Applicant attended a university from 1989 to 1991, attended a community college 
from 1991 to 1993, and attended a university from 1994 to 1996, but he did not receive 
a degree. (GX 3 at 5-6.) He married in August 2007. He and his wife have a five-year-
old son.  
 
 Sometime between 2010 and 2012, Applicant was reprimanded for not properly 
securing his employer’s workspace. The facility where this violation occurred had a front 
door with a magnetic lock and a deadbolt and a back door with only a deadbolt. The last 
person leaving the facility was responsible for checking both doors and signing a log 
sheet certifying that both doors were locked. The same key would unlock either 
                                                          
2 Applicant waived the 15-day-notice requirement in the Directive ¶ E.3.1.8. (Tr. 10.) 
 
3 HX I is the “discovery letter” transmitting the government exhibits to Applicant on June 18, 2015. 
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deadbolt. Applicant went to the office twice during a weekend. Each time he entered 
and left through the back door, which was easier to open. He failed to check the front 
door and did not notice that the deadbolt was unlocked. (Tr. 36-39.) In his answer to the 
SOR, he denied falsifying the log sheet. However, he admitted at the hearing that he did 
not check the front door but signed a log sheet stating that he had checked it. (Tr. 65.) 
 
 When Applicant submitted his SCA in October 2013, he answered “Yes” to the 
question, “Do you have, or have you had, close and/or continuing contact with a foreign 
national within the last seven (7) years with whom you . . . are bound by affection, 
influence, common interests, and/or obligation?” He disclosed his relationship with a 
Japanese married woman between August 2012 and October 2013. (GX 1 at 19-20.) 
He did not disclose his relationships with two other Japanese women and two Filipino 
women.   
 
 During a personal subject interview (PSI) in May 2014, Applicant disclosed that 
the Japanese woman identified in his SCA was a “lonely housewife” married to a 
Japanese military officer. He met her at a bar in August 2012, and they had frequent 
contact until he left Japan on August 31, 2012. In September and October 2012, they 
exchanged email three or four times a week, and they resumed frequent contact when 
Applicant returned to Japan for ten days in October 2012. From October 2012 to May 
2013, they exchanged email twice a week. They had three days of contact when 
Applicant returned to Japan in May 2013, and he gave her a gift of jewelry worth about 
$150 during this trip. (GX 3 at 16.). They had sexual intercourse about six times during 
their relationship. (Tr. 74.) They have had no contact or email exchanges since June 
2013. Applicant made frequent attempts to contact her, but she did not respond. (GX 3 
at 10-12.) Applicant used his work email rather than his personal email for his 
exchanges with the Japanese woman. (GX 3 at 13.) Applicant’s email exchanges with 
the woman were discovered by an information technology (IT) staff member 
investigating a problem unrelated to this case. (GX 2 at 2.) As of the date of the hearing, 
Applicant’s wife was unaware of his social and sexual activities with this Japanese 
woman. (Tr. 77.) 
 
 During the PSI, Applicant also disclosed that he had sexual contact with two 
other Japanese women and one Filipino woman during his trips to Japan. The Filipino 
woman was marred to a Japanese man. (Tr. 83.) He maintained quarterly email contact 
with one of the Japanese women and the Filipino woman. His last sexual contact with a 
foreign woman was in March 2014. (GX 3 at 15; Tr. 88.) Applicant had social contact 
but no sexual contact with another Filipino woman and maintained quarterly email 
contact with her. (GX 3 at 15.) He testified that his quarterly email contacts with these 
three women were not personal, and they consisted of greetings on Christmas, New 
Year’s Day, Valentine’s Day, and general “how are you” inquiries. (Tr. 87.) They knew 
that he worked as a computer technician but did not know his specific job or his 
employer. (GX 3 at 19.) He has had no contact with any of these women since March 
2014. None of the foreign women were aware that Applicant was married. (Tr. 58.)  
 
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Applicant has not had sexual relations with his wife since she became pregnant 
with their son in early 2015. The decision to not have sexual relations was his wife’s. 
Applicant’s wife and their son sleep in the same bed, and he sleeps in an adjoining 
room. (Tr. 52-53.) 
 
 Applicant submitted an article from Wa-pedia (a Japanese version of Wikipedia), 
discussing Japanese views regarding casual sex. According to this source, 
“Extramarital affairs are an almost culturally accepted part of life in Japan. A middle-
aged married man won’t be in trouble at home for seeking romance with young bar 
hostesses or having sex with prostitutes . . . .” (AX E.) The article does not state 
whether Japanese husbands have an equally casual attitude about extramarital affairs 
by their wives. 
 
 Applicant’s employer requires that “continuing contacts with non-U.S. citizens” be 
reported to the facility security officer (FSO). (GX 4 at 11.) Applicant was made aware of 
this requirement at a briefing on security procedures on January 27, 2010. (GX 4 at 32.) 
In his answer to the SOR, he admitted that he did not report his foreign contacts and 
relationships as required by his employer. He testified that he orally notified his FSO in 
advance of his scheduled foreign travel. He asked the FSO if he needed to fill out any 
paperwork in advance of his foreign travel, and he was told, “No.” The only question he 
was asked when he returned from his travel was whether anyone tried to obtain 
information from him while he was in a foreign country. (Tr. 44-47.) He admitted that he 
did not volunteer the information about his relationship with the married Japanese 
woman. (Tr. 81.) 
 
In May 2014, after his previous FSO retired, he received an email from his new 
FSO, notifying him that he was required to submit a form reporting his intended foreign 
travel 15 days before traveling, and he was required to submit the questionnaire on 
second page of the form when he returned from traveling. The questionnaire included 
the question, “Did you meet a foreign national who requested future contact?” It did not 
ask any questions about “continuing contacts with non-U.S. citizens.” (AX E.) The form 
was revised in June 2012 and would have been applicable to Applicant’s first meetings 
with the married Japanese woman. He testified that he would not have disclosed his 
relationships with the foreign women on his employer’s security questionnaire because 
they did not request any contact information from him. He asked them for their email 
addresses and initiated the email contacts. (Tr. 91-92.) Since the May 2014 email 
exchange with his FSO, he has filled out and submitted a notification of foreign travel 
before traveling and submitted the questionnaire upon his return. (Tr. 44-50; AX F.)  
 
In December 2012, Applicant received a written warning for sending a classified 
email attachment via an unencrypted message. (GX 1 at 11.) The classified material 
was created by compiling two sets of unclassified data that became classified when 
combined. Applicant testified that he inserted the wrong code for a numerical value into 
a document, and the wrong code transformed a file from unclassified to classified. (Tr. 
28.) A detailed investigation determined that the security violation was an unintentional 
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mistake, and that no classified information was compromised. He received a written 
reprimand. (GX 2; GX 3 at 27-32.)  
 
In May 2014, Applicant was reprimanded for failing to complete the checkout 
procedures for securing a classified storage room. The facility where this violation 
occurred had a three-tier security system. The first-tier checker was the person working 
with classified information, who was responsible for putting all classified information in 
the safe and locking the safe. The second-tier checker was required to ensure that the 
first-tier checker properly secured all classified information and to initial a checklist. The 
third-tier checker was required to ensure the first two tiers had performed their duties 
correctly and that the second-tier checker had initialed the checklist. There was no 
place on the form for the third-tier checker to sign or initial. The third-tier checker was 
required to sign a general sign-out sheet at the front door of the facility. Applicant was 
the third-tier checker. He testified that he believed he either looked at the line for the 
wrong day on the checklist or failed to look at the checklist. In either event, he did not 
notice that the second-tier checker had not initialed the checklist for the day in question. 
(Tr. 31-35; AX D at 1-4.) 
 
 Between October 2004 and December 2012, Applicant has received pay raises 
and bonuses at least once a year for his outstanding performance. (AX A.) On October 
1, 2015, shortly before the hearing, Applicant received a “Security on the Spot Award” 
from his employer. He was assigned to assess a spill of classified information by a 
major defense contractor and determine the extent of the spillage. None of the search 
utilities used by the contractor could find which computers contained the spilled 
information. Applicant was able to find a third-party application that could be used as a 
comprehensive scan tool to find the spilled information. He was commended for his 
diligence, creativity, and timely response to the problem. (Tr. 39-42; AX C.) 
 
 I have taken administrative notice of the following facts about Japan: 
 
 Japan has a parliamentary government with a constitutional monarchy. It 
is one of the most successful democracies and largest economies in the 
world.  
 
 Japan is a major non-NATO ally of the United States. The U.S.-Japan 
alliance is the cornerstone of U.S. security interests in Asia. Japan 
provides bases as well as financial and material support to U.S. forward-
deployed forces, which are essential for maintaining stability in the region. 
 
 Because of the two countries’ combined economic and technological 
impact on the world, the U.S.-Japan relationship has become global. The 
two countries cooperate on a broad range of global issues, including 
development assistance, combating communicable diseases, and 
protecting the environment and natural resources. The two countries 
collaborate in science and technology in such as mapping the human 
genome, research on aging, and international space exploration. 
6 
 
 Japan contributes irreplaceable political, financial, and moral support to 
U.S.-Japan diplomatic efforts. The United States consults closely with 
Japan and the Republic of Korea on policies regarding North Korea. The 
United States works closely with Japan and Australia to exchange views 
and increase coordination on global and regional initiatives. In Southeast 
Asia, U.S.-Japan cooperation is vital for stability and for political and 
economic reform. Outside Asia, Japan’s political and financial support has 
substantially strengthened the U.S. position on global issues such as 
countering the Islamic State in Iraq and the Levant (ISIL) and terrorism in 
all its forms, advancing environmental and climate change goals, 
maintaining solidarity in the face of Russian aggression in eastern 
Ukraine, assisting developing countries, countering piracy, and standing 
up for human rights and democracy. 
 
 Japan’s human rights record is generally good. Its leading human-rights 
problems include lack of due process for pretrial detainees, poor prison 
and detention center conditions, the exploitation of children, trafficking in 
persons, exploitation of foreign trainee workers, detention of asylum 
seekers, domestic violence and sexual harassment of women, and 
societal discrimination against minority group members. 
 
 None of the U.S. Department of State publications reflect that Japan 
engages in economic or military intelligence activity directed toward the 
United States. 
 
 I also have taken administrative notice of the following facts about the 
Philippines: 
 
 The Philippines is a multi-party, constitutional republic with a bicameral 
legislature. The United States recognized the Philippines as an 
independent state and established diplomatic relations in 1946. The 
United States has designated the Philippines as a major non-NATO ally, 
and there are close and abiding security ties between the two nations, 
based on strong historical and cultural links and a shared commitment to 
democracy and human rights. The Manila Declaration of 2011 reaffirmed 
the 1951 U.S.-Philippines Mutual Defense Treaty as the foundation for a 
robust, balanced, and responsive security partnership. 
 
 The United States is among the Philippines’ top trading partners, and it 
traditionally has been the Philippines’ largest foreign investor. The United 
States and the Philippines have a bilateral trade and investment 
framework and a tax treaty. Philippine imports from the United States 
include raw and semi-processed materials for the manufacture of 
semiconductors, electronics and electrical machinery, transport 
equipment, cereals, and cereal preparations. 
 
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 Philippine national elections have been generally free and fair, but 
independent observers have noted widespread vote buying, and dynastic 
political families have monopolized elective offices at the national and 
local level. 
 
 The most significant human rights problems are extrajudicial killings, 
enforced disappearances undertaken by security forces and vigilante 
groups, a weak and overburdened criminal justice system, widespread 
official corruption and abuse of power, and impunity from prosecution for 
human rights abuses. 
 
 Other human rights problems include prisoner and detainee torture and 
abuse by security forces, violence and harassment against human rights 
activists by security forces, warrantless arrests, lengthy pretrial detentions, 
poor prison conditions, killings and harassment of journalists, violence 
against women, abuse and sexual exploitation of children, and trafficking 
in persons. 
 
 Muslim separatists, communist insurgencies, and terrorist organizations 
are active in the Philippines; and they have killed Philippine security 
forces, local government officials, and other civilians. Through joint U.S.-
Philippine cooperation, the ability of these various groups to operate in the 
Philippines has been constrained but not eliminated. In 2014, there were 
numerous attacks with small arms and improvised explosive devices, 
kidnappings for ransom, and extortion efforts by suspected terrorist 
groups. Gangs of kidnappers have targeted foreigners, including Filipino-
Americans. The U.S. State Department has recommended that all U.S. 
citizens defer non-essential travel to the Sulu Archipelago due to the high 
threat of kidnapping in that area. The State Department also has warned 
U.S. citizens to exercise extreme caution if traveling to the main island of 
Mindanao due to violent activities of terrorist and insurgent groups. 
 
 The Philippine government has recognized the potential threat posed by 
radicalized Philippine citizens supporting ISIL. In July 2014, the Philippine 
president’s anti-terrorism council convened an ad hoc emergency 
technical working group focusing on persons of interest. The working 
group has tightened passport issuance, increased immigration screening, 
and increased monitoring of ISIL-related activity. 
 
 None of the source documents submitted by Department Counsel and 
Applicant reflect that the Philippines engages in economic or military 
intelligence activity directed toward the United States.  
 
8 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available and reliable information about the 
person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
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and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline K, Handling Protected Information 
 
 The SOR alleges that Applicant improperly emailed a classified document via 
unclassified email and was reprimanded for it (SOR ¶ 1.a), and he failed to report, as 
required, his contacts and relationships with multiple foreign nationals (SOR ¶ 1.b). AG 
¶ 33 expresses the security concern pertaining to handling protected information: 
“Deliberate or negligent failure to comply with rules and regulations for protecting 
classified or other sensitive information raises doubt about an individual's 
trustworthiness, judgment, reliability, or willingness and ability to safeguard such 
information, and is a serious security concern.” 
 
Security violations are one of the strongest possible reasons for denying or 
revoking access to classified information, as they raise very serious questions about an 
applicant’s suitability for access to classified information. Once it is established that an 
applicant has committed a security violation, he or she has a very heavy burden of 
demonstrating that he or she should be entrusted with classified information. Because 
security violations strike at the very heart of the industrial security program, an 
administrative judge must give any claims of reform and rehabilitation strict scrutiny. 
See ISCR Case No. 03-26888 (App. Bd. Oct. 5, 2006).The frequency and duration of 
the security violations are aggravating factors. ISCR Case No. 97-0435 at 5 (App. Bd. 
July 14, 1998). 
 
 In his answer to the SOR, Applicant admitted both allegations under this 
guideline. The evidence adduced at the hearing showed that he was unaware of a 
requirement to report foreign contacts in writing. The evidence also showed that the 
employer’s security questionnaire would not have required disclosure of Applicant’s 
foreign contacts because they did not request any contact information from him. 
However, he admitted at the hearing that he knew about the requirement to report 
continuing foreign contacts and that he did not volunteer the information about his 
relationship with the married Japanese woman. His admissions in his answer to the 
SOR and at the hearing establish the following disqualifying conditions under this 
guideline: 
 
AG ¶ 34(c): loading, drafting, editing, modifying, storing, transmitting, or 
otherwise handling classified reports, data, or other information on any 
unapproved equipment; and 
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AG ¶ 34(g): any failure to comply with rules for the protection of classified 
or other sensitive information. 
 
 Applicant’s failure to complete the checkout procedures for a classified storage 
room and failure to properly secure his workplace, alleged in SOR ¶¶ 4.d and 4.e, 
combined with the conduct alleged in SOR ¶¶ 1.a and 1.b, would be relevant to AG ¶ 
34(h) (“negligence or lax security habits that persist despite counseling by 
management”). However the derelictions in SOR ¶¶ 4.d and 4.e were not alleged under 
this guideline. Thus, the disqualifying condition in AG ¶ 34(h) may not be an 
independent basis for revoking Applicant’s security clearance.  
  
 The following mitigating conditions are potentially relevant: 
 
AG ¶ 35(a): so much time has elapsed since the behavior, or it has 
happened so infrequently or under such unusual circumstances, that it is 
unlikely to recur and does not cast doubt on the individual's current 
reliability, trustworthiness, or good judgment; 
 
AG ¶ 35(b): the individual responded favorably to counseling or remedial 
security training and now demonstrates a positive attitude toward the 
discharge of security responsibilities; and 
 
AG ¶ 35(c): the security violations were due to improper or inadequate 
training. 
 
 AG ¶ 35(a) is not established. Applicant’s violations were numerous, recent, and 
did not occur under unusual circumstances making recurrence unlikely. Although the 
incident alleged in SOR ¶ 1.a was more than five years ago, it was the beginning of a 
series of rules violations, including failure to report his continuing relationship with a 
married Japanese woman from August 2012 through June 2013, multiple sexual 
encounters and email contacts with Japanese and Filipino women until March 2014, 
and failure to complete the checkout procedures for a classified store room in May 
2014. 
 
 AG ¶ 35(b) is partially established. Applicant began complying with the 
requirement to submit a written foreign travel questionnaire as soon as he became 
aware of it. He reported his continuing contact with the married Japanese woman when 
he submitted his SCA in October 2013. 
 
 AG ¶ 35(c) is not established for Applicant’s inadvertent security violation alleged 
in SOR ¶ 1.a, but it is established for his failure to submit written foreign travel reports. 
The extensive email exchange between Applicant and the new FSO in May 2014 
reflects that Applicant was made aware of the requirement to report “continuing contacts 
with non-U.S. citizens” at the briefing in January 2010, but he was not aware that his 
employer had a specific form for reporting contacts in writing until he was notified by the 
new FSO. Furthermore, the foreign travel questionnaire published in June 2011 did not 
11 
 
include the reporting requirement set out during the January 2010 briefing and would 
not have encompassed his continuing relationship with the married Japanese woman.  
 
Guideline B, Foreign Influence 
 
 The SOR alleges that Applicant, while married, had “sex and ongoing contacts 
with at least four foreign nationals between 2012 and 2014” (SOR ¶ 2.a). The evidence 
establishes that he had sexual intercourse with four foreign women between 2012 and 
2014, that he had close and continuing foreign contact with one Japanese woman and 
occasional casual contacts with two other Japanese women and two Filipino women 
during the same period. 
 
 Four disqualifying conditions under this guideline are relevant: 
 
AG ¶ 7(a): contact with a foreign family member, business or professional 
associate, friend, or other person who is a citizen of or resident in a 
foreign country if that contact creates a heightened risk of foreign 
exploitation, inducement, manipulation, pressure, or coercion; 
 
 AG ¶ 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; 
 
AG ¶ 7(f): failure to report, when required, association with a foreign 
national; and 
 
AG ¶ 7(i): conduct, especially while traveling outside the U.S., which may 
make the individual vulnerable to exploitation, pressure, or coercion by a 
foreign person, group, government, or country. 
 
 AG ¶ 7(a) requires substantial evidence of a “heightened risk.” The “heightened 
risk” required to raise one of these disqualifying conditions is a relatively low standard. 
“Heightened risk” denotes a risk greater than the normal risk inherent in living under a 
foreign government. 
 
 Guideline B is not limited to countries hostile to the United States. “The United 
States has a compelling interest in protecting and safeguarding classified information 
from any person, organization, or country that is not authorized to have access to it, 
regardless of whether that person, organization, or country has interests inimical to 
those of the United States.”  ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004).  
 
 Furthermore, “even friendly nations can have profound disagreements with the 
United States over matters they view as important to their vital interests or national 
security.” ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 
12 
 
2002). Finally, we know friendly nations have engaged in espionage against the United 
States, especially in the economic, scientific, and technical fields. Nevertheless, the 
nature of a nation’s government, its relationship with the United States, and its human 
rights record are relevant in assessing the likelihood that an applicant’s foreign contacts 
are vulnerable to government coercion. The risk of coercion, persuasion, or duress is 
significantly greater if the foreign country has an authoritarian government, a family 
member is associated with or dependent upon the government, or the country is known 
to conduct intelligence operations against the United States. In considering the nature of 
the government, an administrative judge must also consider any terrorist activity in the 
country at issue. See generally ISCR Case No. 02-26130 at 3 (App. Bd. Dec. 7, 2006) 
(reversing decision to grant clearance where administrative judge did not consider 
terrorist activity in area where family members resided). 
 
 The element of “heightened risk” is not established for Japan. Japan is a close 
ally and partner of the United States with no record of military or economic espionage 
targeted at the United States and no history of dealing with insurgent or terrorist groups 
sufficient to constitute a “heightened risk.  
 
 This element is also not established for the Philippines. I am satisfied that the 
activities of insurgent and terrorist groups, the risks of kidnapping by gangs, and the 
danger of radicalized ISIL sympathizers in the Philippines would be sufficient to 
establish the “heightened risk” in AG ¶ 7(a) if the two Filipino women lived in the 
Philippines or had family members in the Philippines. However, one of the women is 
married to a Japanese man and lives in Japan, and there is no evidence that either of 
the Filipino women have family members living in the Philippines. Thus, I conclude that 
the element of “heightened risk” is not established for any of the women with whom 
Applicant was involved. For the same reasons, the likelihood of a potential conflict of 
interest between the interests of the United States and any of the five women with 
whom Applicant was involved is too remote to raise a security concern. Accordingly, I 
conclude that AG ¶¶ 7(a) and 7(b) are not established. 
 
 AG ¶ 7(f) is established. Applicant was made aware of the requirement to report 
“continuing contacts with non-U.S. citizens” during his employer’s security briefing in 
January 2010. While he plausibly did not regard his occasional emails to four of the 
women as “continuing contacts,” he knew that his relationship with the married 
Japanese women was a “continuing contact,” and he disclosed it in his October 2013 
SCA. In his answer to the SOR and at the hearing, he admitted that he had an 
obligation to report it. There is no possibility that his employer’s foreign travel 
questionnaire misled him, because Applicant was not aware of it until May 2014.  
 
 AG ¶ 7(i) is established. Applicant’s relationship with a Japanese woman married 
to a Japanese military officer made him vulnerable to exploitation, pressure, or coercion 
by any person, intelligence agent, government agent, terrorist group, or insurgent group 
that discovered it. His vulnerability is heightened by the fact that he has not disclosed 
his relationship to his wife. 
 
13 
 
 Two mitigating conditions are potentially relevant:  
 
AG ¶ 8(c): contact or communication with foreign citizens is so casual or 
infrequent that there is little likelihood that it could create a risk for foreign 
influence or exploitation; and 
 
AG ¶ 8(e): the individual has promptly complied with existing agency 
requirements regarding the reporting of contacts, requests, or threats from 
persons, groups, or organizations from a foreign country. 
 
 AG ¶ 8(c) is not established for Applicant’s contacts with the Japanese married 
woman, but it is established for his contacts with the other Japanese and Filipino 
women. AG ¶ 8(e) is established, because Applicant began complying with his 
employer’s reporting requirement after he was made aware of it. No other mitigating 
conditions are applicable. 
 
Guideline D, Sexual Behavior 
 
 The SOR cross-alleges the conduct in ¶ 2.a under this guideline. The security 
concern under this guideline is set out in AG ¶ 18:  
 
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. . . . 
 
 The following disqualifying conditions under this guideline are potentially 
applicable:  
 
AG ¶ 13(a): sexual behavior of a criminal nature, whether or not the 
individual has been prosecuted; 
 
AG ¶ 13(c): sexual behavior that causes an individual to be vulnerable to 
coercion, exploitation, or duress; and  
 
AG ¶ 13(d): sexual behavior of a public nature and/or that reflects lack of 
discretion or judgment. 
 
 AG ¶ 13(a) is not established. There is no evidence in the record establishing 
that Applicant’s adulterous conduct violated the law of Japan or Applicant’s home state 
in the United States.  
 
 AG ¶ 13(c) and 13(d) are established. Applicant’s behavior made him vulnerable 
to coercion, exploitation, or duress, for the reasons set out in the above discussion of 
14 
 
AG ¶ 7(i). His adulterous relationship with a Japanese woman married to a Japanese 
military officer demonstrated poor judgment. 
 
The following mitigating conditions are potentially relevant: 
 
AG ¶ 14(b): the sexual behavior happened so long ago, so infrequently, or 
under such unusual circumstances, that it is unlikely to recur and does not 
cast doubt on the individual’s current reliability, trustworthiness, or good 
judgment; 
 
AG ¶ 14(c): the behavior no long serves as a basis for coercion, 
exploitation, or duress; and  
 
AG ¶ 14(d): the sexual behavior is strictly private, consensual, and 
discreet. 
 
 AG ¶ 14(b) is not established. Applicant’s sexual behavior was recent, frequent, 
and did not occur under unusual circumstances making it unlikely to recur.  
 
 AG ¶ 14(c) is not established. Applicant has not disclosed his conduct to his wife, 
and he remains vulnerable to coercion, exploitation, or duress. 
 
 AG ¶ 14(d) is not fully established. Applicant’s sexual activity was private and 
consensual, but his email exchanges were on his work computer, which was not private. 
 
Guideline E, Personal Conduct 
 
 The SOR cross-alleges the conduct in SOR ¶¶ 1.a and 1.b under this guideline 
(SOR ¶¶ 4.a and 4.b). It also alleges that Applicant deliberately falsified his SCA by 
disclosing his contacts with the married Japanese woman, but not disclosing his 
contacts with two other Japanese women and two Filipino women (SOR ¶ 4.c). Finally, 
it alleges that Applicant was reprimanded for failing to complete the checkout 
procedures for a classified storage room in May 2014 (SOR ¶ 1.d) and was 
reprimanded between 2010 and 2012 for improperly securing the workplace and 
warned for falsifying the log sheet by attesting that he had checked and secured the 
office doors (SOR ¶ 1.e). 
 The concern under this guideline 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 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.   
15 
 
 The relevant disqualifying condition for SOR ¶ 4.c, alleging that Applicant falsified 
his SCA, is AG ¶ 16(a) (“deliberate omission, concealment, or falsification of relevant 
facts from any personnel security questionnaire . . . .”) When a falsification allegation is 
controverted, as in this case, the Government has the burden of proving it. An omission, 
standing alone, does not prove falsification. An administrative judge must consider the 
record evidence as a whole to determine an applicant’s state of mind at the time of the 
omission. See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004). An applicant’s 
level of education and business experience are relevant to determining whether a failure 
to disclose relevant information on a security clearance application was deliberate. 
ISCR Case No. 08-05637 (App. Bd. Sep. 9, 2010). 
 
 The relevant disqualifying conditions for SOR ¶¶ 4.a, 4.b, 4.d, and 4.e are: 
AG ¶ 16(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; 
AG ¶ 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. This 
includes but is not limited to consideration of . . . a pattern of dishonesty or 
rule violations; and  
AG ¶ 16(e): personal conduct, or concealment of information about one's 
conduct, that creates a vulnerability to exploitation, manipulation, or 
duress, such as . . . engaging in activities which, if known, may affect the 
person's personal, professional, or community standing.  
 AG ¶ 16(a) is not established. When Applicant submitted his SCA, he disclosed 
the only serious relationship he had in Japan. While it is debatable whether the quarterly 
emails with the other four women were “continuing,” the evidence falls short of showing 
that Applicant was “bound by affection, influence, common interests, and/or obligation” 
to the four other women.  
 
 Applicant’s security violations alleged in SOR ¶¶ 1.a and 1.b, and the derelictions 
alleged in SOR ¶¶ 4.d and 4.e are sufficient to establish AG ¶¶ 16(c) and 16(d). 
Applicant’s adulterous conduct alleged in SOR ¶¶ 2.a and 3.d was not cross-alleged in 
16 
 
this guideline. Therefore, the disqualifying condition in AG ¶ 16(e) may not be an 
independent basis for revoking his security clearance. 
 
 The following mitigating conditions are potentially relevant: 
 
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; 
 
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; and 
 
AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress. 
 
 AG ¶ 17(c) is not established. Applicant’s sexual misconduct was not “minor” in a 
national security context. It was repeated several times over a two-year period. 
Applicant did not voluntarily terminate his relationship with the Japanese woman; she 
terminated it. His conduct did not occur under unique circumstances. 
 
 AG ¶ 17(d) is partially established, because Applicant has acknowledged his 
behavior. He presented no evidence of counseling or other remedial measures for his 
marital infidelity. Insufficient time has passed to determine whether he has overcome his 
carelessness regarding security procedures. Applicant’s “Security on the Spot” award in 
October 2015 demonstrates his reputation for hard work and technical skill, but it does 
not overcome his record of carelessness regarding security checklists and log sheets. 
 
 AG ¶ 17(e) is not established. Applicant has not disclosed his infidelity to his wife, 
and he remains vulnerable to coercion, exploitation, and duress. 
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an administrative judge must evaluate an applicant’s eligibility for a 
security clearance by considering the totality of the applicant’s conduct and all relevant 
circumstances. An 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 
17 
 
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.  
 
 I have incorporated my comments under Guidelines K, B, D, and E in my whole-
person analysis. Some of the factors in AG ¶ 2(a) were addressed under those 
guidelines, but some warrant additional comment. 
 
 Applicant has worked for a defense contractor for more than 19 years and has 
held a security clearance for most of that time. He has a dysfunctional marriage, and his 
feelings of loneliness and rejection are understandable, but they do not justify the 
serious breach of trust that his sexual misconduct demonstrates. His security violations 
were negligent, not intentional, but insufficient time has not passed for him to 
demonstrate that he has overcome his inattention to administrative details. He has been 
under pressure to retain his clearance since October 2013, and I am not confident that 
he will not revert to previous habits when he is relieved of the pressure of keeping his 
clearance and his job. 
 
 After weighing the disqualifying and mitigating conditions under Guidelines K, B, 
D, and E, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has not mitigated the security concerns raised by his security violations, 
foreign contacts, sexual behavior, and personal conduct. Accordingly, I conclude he has 
not carried his burden of showing that it is clearly consistent with the national interest to 
continue his eligibility for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline K:     AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.b:    Against Applicant 
 
 Paragraph 2, Guideline B:     AGAINST APPLICANT 
 
  Subparagraph 2.a:     Against Applicant 
 
 Paragraph 3, Guideline D:     AGAINST APPLICANT 
 
  Subparagraph 3.a:     Against Applicant 
 
18 
 
 Paragraph 4, Guideline E:     AGAINST APPLICANT 
 
  Subparagraphs 4.a-4.b:    Against Applicant 
 
  Subparagraph 4.c:     For Applicant 
 
  Subparagraphs 4.d-4.e:    Against Applicant 
 
Conclusion 
 
 I conclude that it is not clearly consistent with the national interest to continue 
Applicant’s eligibility for a security clearance. Eligibility for access to classified 
information is denied. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge