1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 16-00112 ) Applicant for Security Clearance ) Appearances For Government: Benjamin R. Dorsey, Esq., Department Counsel For Applicant: Barbara T. Hanna, Esq. ______________ Decision ______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guidelines E (Personal Conduct), D (Sexual Behavior), and M (Use of Information Technology Systems). Eligibility for access to classified information is denied. Statement of the Case On April 1, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent Applicant a Statement of Reasons (SOR) alleging security concerns under Guidelines E, D, and M. The DOD CAF acted under Executive Order (Exec. Or.) 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. The adjudicative guidelines are codified in 32 C.F.R. § 154, Appendix H (2006), and they replace the guidelines in Enclosure 2 to the Directive. Applicant answered the SOR on May 2, 2016, and requested a decision on the record. On a later date not reflected in the record, he requested a hearing before an 2 administrative judge. (Tr. 14.) Department Counsel was ready to proceed on October 20, 2016, and the case was assigned to me on November, 10, 2016. On November 15, 2016, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for December 7, 2016. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 5 were admitted in evidence without objection. Applicant testified, presented the testimony of two witnesses, and submitted Applicant’s Exhibits (AX) 1 through 7, which were admitted without objection. DOHA received the transcript (Tr.) on December 16, 2016. Findings of Fact1 In his answer to the SOR, Applicant admitted all the allegations. His admissions in his answer and at the hearing are incorporated in my findings of fact. Applicant is a 37-year-old employee of a defense contractor, seeking a security clearance. He served on active duty in the U.S. Navy from March 1999 to May 2014 and held a security clearance during his Navy service. (AX 3; Tr. 49.) After he left the Navy, he was unemployed until October 2014, when he was hired by a private-sector employer. In March 2015, he was hired by his current employer, who is sponsoring him for a security clearance. (Tr. 75-76.) Applicant’s biological father left him when he was six years old, and he was raised by his mother. His stepfather worked hard, drank alcohol heavily, and was not a father-figure. His older sisters were involved in gangs, violence, and alcohol. Applicant played sports in high school to escape his home environment. (Tr. 91-92.) He graduated from high school in June 1997, worked for a short time in a clothing store until his girlfriend, now his wife, became pregnant with their first child. Applicant then enlisted in the Navy. (Tr. 42-43.) He married in February 2000. He and his wife have five children, ages 18, 16, 12, 7, and 2. The SOR alleges that Applicant received nonjudicial punishment2 while stationed aboard a U.S Navy ship for fraternization, violation of orders by engaging in sexual relations and using a government computer for sexually-explicit email conversations, adultery, and obstruction of justice by soliciting a junior sailor to delete evidence of sexually-explicit email conversations. The conduct alleged in the SOR occurred when Applicant was an information systems technician first class (IT1) serving aboard a U.S. Navy ship. He had been selected for promotion to chief petty officer (CPO). He was authorized to wear the 1 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record. 2 Article 15, Uniform Code of Military Justice (UCMJ), 10 U.S.C. ¶ 815, authorizes military commanders to utilize a nonjudicial procedure to impose punishment on members of their commands for criminal offenses proscribed in the UCMJ 3 uniform and insignia of a CPO; and he was given the duties, authority, and privileges of the higher rate, but not the increased pay. From February 2013 to October 2013, while his ship was deployed, he used his government computer to engage in sexually-explicit email conversations with several female sailors aboard the ship. (Tr. 86.) He knew that use of his government computer for sexually-explicit conversations was prohibited. (Tr. 102-03.) Starting in August 2013, Applicant engaged in an extramarital affair with a female lieutenant junior grade aboard the ship, and they had sexual intercourse three times. (Tr. 54, 84.) When he was questioned during an investigation of his conduct, he initially denied having sexual intercourse with the officer, but he later admitted it. (Tr. 57.) In November 2013, Applicant received nonjudicial punishment for fraternization, violating orders, and obstruction of justice. He was reduced from IT1 to IT2 (information systems technician second class), restricted to the ship, ordered to perform extra duty, and ordered to forfeit one-half of his basic pay for two months. All punishments except the reduction in rate were suspended. He was immediately flown home from the ship. As an IT2 with more than 14 years of service, he was ineligible to continue serving on active duty under the “high-year tenure” rules. (Tr. 60.) In May 2014, he was discharged from the Navy with an honorable discharge. (AX 3.) Applicant testified that when he received nonjudicial punishment, he admitted everything except the obstruction of justice. (Tr. 59) The record does not reflect whether the officer imposing punishment found him guilty of obstructing justice. At the hearing, Applicant denied obstructing justice. He testified that he was prohibited from entering his work area aboard the ship while the investigation was being conducted, but he did not know he was prohibited from talking with his former subordinates until his master chief petty officer told him. He admitted contacting a petty officer second class who had worked for him and asking her to meet him in a chief petty officer’s office. He admitted meeting and talking to the petty officer second class, but he testified that he simply wanted to know how his former subordinates were doing. (Tr. 56, 83.) The report of investigation on which the nonjudicial punishment was based is not in the record. There is no evidence in the record supporting the allegation that Applicant solicited a junior sailor to delete evidence, as alleged in SOR ¶ 1.b. Before flying to the United States from the ship, Applicant contacted his wife and told her about his affair with the officer. After Applicant arrived in the United States, he stayed with a friend for a week and continued to communicate with his wife. When he arrived home, his wife told him that he needed to tell the children what happened, and he did so. (Tr. 64-65.) After coming home, Applicant sought counseling. He was referred by a military referral service to a licensed clinical psychologist, and he attended six counseling sessions, starting on November 8, 2013. He requested and received six additional 4 sessions, which were completed on February 28, 2014. (GX 3.) The record does not contain any evaluation, analysis, or diagnosis from the psychologist. Applicant testified that the psychologist helped him to be a better husband and to understand his wife’s needs, but he felt that he needed to know more about what caused his conduct. (Tr. 66- 68.) From January 14, 2016, to October 19, 2016, Applicant had six consultations with a licensed professional counselor, whom he continues to see about once a month. (Tr. 91, 95.) The counselor has diagnosed him with dysthymic disorder (F34.1) due to mild persistent anxiousness and depressive symptoms secondary to marital and family stressors.3 (AX 1.) Applicant has not been diagnosed with a sexual disorder. As a result of his counseling, Applicant realized that he enjoyed the feeling of being desired by other women, but that when he was home he was mentally focused on work and preoccupied with being promoted to chief petty officer. Instead of looking to his wife for attention, he looked to other women. (Tr. 69-70.) Since September 2015, Applicant has been participating in Sexual Addicts Anonymous (SAA), an organization similar to Alcoholic Anonymous. He attends weekly meetings every Sunday. Although he does not believe he is a sexual addict, he has found SAA helpful because he can openly discuss his behavior, no one judges him, and he receives encouragement. (Tr. 71-75.) Applicant’s parents, children, siblings, and in-laws are aware of his sexual misconduct in the Navy. His best friend and fellow sailor, with whom he stayed for a week after leaving the ship, knows about his affair. (Tr. 97-98.) Applicant’s current supervisor knows that he “got in trouble” in the Navy, but he does not know the specific details. He testified that if someone revealed the details of his misconduct to his supervisor, he would tell his supervisor what happened. (Tr. 103-04.) Applicant had a previous extramarital affair in 2006 or 2007 with a married woman in his civilian neighborhood. The affair started with social-media contact and progressed to sexual activity. His partner in this affair had no connection to the military. He disclosed the affair to his wife.4 He received counseling for “a while,” and then he and his wife received marriage counseling about a year and a half later. (Tr. 87-90.) Applicant testified that the counseling he received after his most recent affair was different from previous counseling, because the recent counseling was the first time that 3 This disorder, also known as persistent depressive disorder, is recognized and described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), at pp.168-71. 4 The extramarital affair in 2006-2007 was not alleged in the SOR and may not be an independent basis for denying a security clearance. However, conduct not alleged in the SOR may be considered to assess an applicant=s credibility; to decide whether a particular adjudicative guideline is applicable; to evaluate evidence of extenuation, mitigation, or changed circumstances; to consider whether an applicant has demonstrated successful rehabilitation; or as part of a whole-person analysis. ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006). I have considered unalleged affair for these limited purposes. 5 someone delved into his childhood, family background, upbringing, and the reasons for his behavior. (Tr. 91.) Applicant’s wife testified that Applicant has been candid and open about his sexual misconduct aboard the ship. She testified that Applicant is a different person than he was three years ago. He is now an “open book,” has no social-media outlets, and communicates more with her. She has forgiven him, and she is convinced that he is sincere in his desire to continue the marriage. (Tr. 19-28.) Before the incidents alleged in the SOR occurred, Applicant was regarded as a stellar sailor, a strong and effective leader, and a talented technician. He had outstanding evaluation reports. He was awarded the Navy and Marine Corps Achievement Medal five times, and he received numerous other commendations. He frequently was the “sailor of the quarter” for various commands. When he was assigned ashore, he was actively involved in his sons’ athletic events, coached baseball teams, and participated in food drives and “wheels on meals” for elderly persons confined to their homes. (AX 4 and 5; Tr. 47.) The friend that Applicant stayed with for a week after leaving the ship is a retired senior chief petty officer. He and Applicant are co-workers and served together for many years in the Navy. Based on almost two years of daily contact, the friend believes that Applicant’s performance in his current job has been outstanding. Applicant has told him about the extramarital affair and what he is doing to work through his marital issues. He believes that Applicant is remorseful and trying correct his mistake. He considers Applicant very honest. He testified, “I’m assuming that everything is truthful that comes out of his mouth.” (Tr. 32-37.) A sailor who served with Applicant aboard the ship on which the misconduct occurred regards him as an exemplary leader and one of the most reliable and trustworthy petty officers he has encountered. He believes that Applicant has acknowledged his faults and taken steps to better himself. (AX 2.) 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 § 2. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. 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 6 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.” 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, 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 E, Personal Conduct The SOR alleges that Applicant received nonjudicial punishment, while stationed aboard a U.S. Navy ship, for fraternization, violation of orders, adultery, and obstruction of justice (SOR ¶ 1.a); and that he attempted to obstruct justice by soliciting a junior sailor to delete evidence related to an ongoing investigation (SOR ¶ 1.b). The SOR also 7 cross-alleges sexual misconduct alleged under Guideline D and misuse of a government computer for sexually-explicit conversations alleged under Guideline M (SOR ¶ 1.c). 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. . . .” The SOR ¶ 1.a alleges the consequences of the same conduct alleged in SOR ¶¶ 1.b and 1.c. When the same conduct is alleged twice in the SOR under the same guideline, one of the duplicative allegations should be resolved in Applicant=s favor. See ISCR Case No. 03-04704 (App. Bd. Sep. 21, 2005) at 3. Accordingly, I will resolve SOR ¶ 1.a in Applicant’s favor. The allegations under Guideline E in SOR ¶¶ 1.b and 1.c also duplicate the allegations under Guidelines D and M. However, this duplication does not require corrective action, because Guideline E contemplates that “specific behavior can have security significance under more than one guideline and . . . by focusing on the concepts of questionable judgment and irresponsibility, it contemplates that behavior will have independent security significance under Guideline E in a broad range of cases.” ISCR Case No. 06-20964, 2008 WL 2002589 at *5 (App. Bd. Apr. 10, 2008). There is no evidence in the record supporting the allegation that Applicant attempted to obstruct justice, as alleged in SOR ¶ 1.b. Accordingly, I will resolve, SOR ¶ 1.b in Applicant’s favor. Applicant’s admissions in his answer to the SOR and his testimony at the hearing, corroborated by the documentary evidence submitted at the hearing, establish the conduct alleged in SOR ¶ 1.c and cross-alleged in SOR ¶¶ 2.a and 3.a. The conduct alleged in SOR ¶¶ 1.c, 2.a, and 3.a is sufficient to establish the following disqualifying conditions under Guideline E: 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 8 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. 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. None of the above mitigating conditions are fully established. Applicant’s sexual conduct aboard a deployed ship was a serious breach of discipline. It was frequent and did not occur under circumstances making it unlikely to recur. Applicant acknowledged his behavior and obtained counseling. While the counseling has given him insight into the reasons for his behavior, it is too soon to determine whether sufficient time has passed to mitigate his conduct. He is still receiving counseling. The record contains no medical or psychiatric evidence about the likelihood of recurrence. His misconduct aboard ship occurred about six years after his previous infidelity and counseling. In this context, the period of three and a half years since his most recent infidelity is insufficient to show that recurrence is unlikely. He is vulnerable to exploitation, manipulation, or duress, because he has not disclosed his conduct to his current supervisors. Guideline D, Sexual Behavior The SOR ¶ 2.a alleges that Applicant had sexual relations on multiple occasions with an officer while underway aboard a U.S. Navy ship. 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 9 duress can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. . . . The evidence establishes following disqualifying conditions under this guideline: AG ¶ 13(a): sexual behavior of a criminal nature, whether or not the individual has been prosecuted; AG ¶ 13(b): a pattern of compulsive, self-destructive, or high risk sexual behavior that the person is unable to stop or that may be symptomatic of a personality disorder; and AG ¶ 13(c): sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress. 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) and 14(c) are not established, for the reasons set out in the above discussion under Guideline E. AG ¶ 14(d) is not established. While Applicant’s sexual affair with the officer and his email exchanges with enlisted sailors may have been consensual, they were not discreet. His email exchanges were not private, but were in a government email system subject to monitoring. Guideline M, Use of Information Technology Systems The SOR ¶ 3.a alleges that Applicant used a government computer to engage in sexually-explicit email conversations with multiple female sailors wile aboard a U.S. Navy ship. The concern under this guideline is set out in AG ¶ 39: Noncompliance with rules, procedures, guidelines or regulations pertaining to information technology systems may raise security concerns about an individual's reliability and trustworthiness, calling into question the willingness or ability to properly protect sensitive systems, networks, and information. Information Technology Systems include all related computer hardware, software, firmware, and data used for the 10 communication, transmission, processing, manipulation, storage, or protection of information. Applicant’s violation of the prohibition on use of a government email network for sexually-explicit conversations establishes the disqualifying condition in AG 40(e): “unauthorized use of a government or other information technology system.” The mitigating condition in AG ¶ 41(a) is relevant: “so much time has elapsed since the behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment.” However, this mitigating condition is not established for the reasons set out in the above discussion of Guideline E. 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 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 E, D, and M in my whole- person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant was candid, sincere, and remorseful at the hearing. He realizes that he abruptly ended a brilliant and rewarding career in the Navy and jeopardized his relationships with his wife and children. His conduct while serving as a chief petty officer aboard a deployed ship was a serious breach of trust. He has taken steps in the right direction to reform his conduct, but insufficient time has passed to demonstrate that he is rehabilitated. After weighing the disqualifying and mitigating conditions under Guidelines E, D, and M, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his personal conduct, sexual 11 behavior, and misuse of an information technology system. Accordingly, I conclude he has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline E (Personal Conduct): AGAINST APPLICANT Subparagraphs 1.a and 1.b; For Applicant Subparagraph 1.c: Against Applicant Paragraph 2, Guideline D (Sexual Behavior) AGAINST APPLICANT Subparagraph 2.a: Against Applicant Paragraph 3, Guideline M (Use of IT Systems): AGAINST APPLICANT Subparagraph 3.a: Against Applicant Conclusion I conclude that it is not clearly consistent with the national interest to grant Applicant eligibility for access to classified information. Clearance is denied. LeRoy F. Foreman Administrative Judge