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      DEPARTMENT OF DEFENSE 
 DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
) 
) ISCR Case No. 16-03426 
) 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Andrew Henderson, Esq., Department Counsel 
For Applicant: Pro se 
July 18, 2017 
______________ 
Decision 
______________ 
GOLDSTEIN, Jennifer I., Administrative Judge: 
Between 2009 and 2016, Applicant received sexual services during his visits to 
massage parlors. His wife is unaware of his infidelity. His conduct raised security 
concerns under the guidelines for personal conduct, sexual behavior, and criminal 
conduct. Eligibility for access to classified information is denied.  
Statement of the Case 
On January 31, 2017, in accordance with DoD Directive 5220.6, as amended 
(Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) 
alleging facts that raise security concerns under Guidelines E, D, and J.1 The SOR 
further informed Applicant that, based on information available to the government, DoD 
adjudicators could not make the preliminary affirmative finding it is clearly consistent 
with the national interest to grant or continue Applicant’s security clearance. 
1 I considered the previous Adjudicative Guidelines (AG), effective September 1, 2006, as well as the new 
AG, effective June 8, 2017. My decision would be the same if the case was issued under the previous 
AG. Applicant was provided with a copy of the new AG prior to the hearing, and permitted time after the 
hearing to submit further argument based on the new guidelines. (Tr. 4-6.) 
 
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Applicant answered the SOR on March 6, 2017, and requested a hearing before 
an administrative judge. (Answer.) The case was assigned to me on April 3, 2017. The 
Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on April 4, 
2017, scheduling the hearing for May 16, 2017. The hearing was convened as 
scheduled. The Government offered Exhibits (GE) 1 through 2, which were admitted 
without objection. Applicant testified on his own behalf. The record was left open until 
May 23, 2017, for receipt of additional documentation. On May 16, 2017, the 
Government presented GE 3, which was admitted over Applicant’s objection. On May 
23, 2017, Applicant submitted two exhibits, marked Applicant Exhibit (AE) A and B, 
which were admitted without objection. The record then closed. DOHA received the 
transcript of the hearing (Tr.) on May 23, 2017. 
 
Findings of Fact 
 
 Applicant denied the allegations in SOR ¶¶ 1.a, 2.a, and 3.a. After a thorough 
and careful review of the pleadings, exhibits, and testimony, I make the following 
findings of fact.  
 
 Applicant is a 62-year-old employee of a defense contractor. He has been 
employed with the defense contractor since 2002. He is married since 1983, and has 
two adult children. (Tr. 15-16.) 
  
 Applicant was alleged to have visited massage parlors and paid for sexual 
services from about 2009 to at least 2016. He admitted that between 2005 and 2008, he 
received sexual services at massage parlors approximately 20 times. He stopped 
frequenting massage parlors in 2009, after he had disclosed receiving sexual services 
from foreign nationals at massage parlors during a polygraph administered to him in 
2009. (Tr. 16-18.) He resumed receiving “hand jobs” three times in 2014. (GE 2.) He 
testified: 
 
Well, in 2010, I started - - I was diagnosed with heart issues - - and, at that 
time, I resumed getting massages. And, then, in August of 2011, I actually 
had heart surgery, and I continued to get massages. There were no 
issues. And, then, in August of 2013, I started having severe back pain 
and was laid out on the floor for a week or so. And eventually, I needed 
surgery. I had that surgery, and I was recovering from that surgery. And 
then, in November, I re-injured my back, which laid me out for a few days 
and for a while. And, then, in January, I was getting massage and was 
offered a hand job and didn’t say no. And that behavior happened again in 
March, and I believe, August.  So, it happened three times. There were 
other times - - approximately 10 times - - where they started massaging 
me and I stopped them. However, one time in July of 2016, even though I 
stopped them, I continued with the act while they were there. And that’s 
about the sum of my [in]discretions that happened between, you know, 
2010 to the present. (Tr. 14.) 
 
 
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 Applicant testified that he only paid for the massage and a tip. He implied that he 
did not pay for the added sexual services. Applicant has not disclosed his indiscretions 
to his wife or coworkers. (Tr. 20-22.) 
 
 Applicant presented documentation to show he was part of a team at work that 
received a prestigious award. (AE A.)  
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines (AG). In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are useful in evaluating an 
applicant’s eligibility for access to classified information. 
 
These guidelines are not inflexible rules of law. Instead, recognizing the 
complexities of human behavior, administrative judges apply the guidelines in 
conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The 
administrative judge’s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. According to AG ¶ 2(a), the entire process is a conscientious 
scrutiny of a number of variables known as the whole-person concept. The 
administrative judge must consider all available, reliable information about the person, 
past and present, favorable and unfavorable, in making a decision. 
 
The protection of the national security is the paramount consideration. AG ¶ 2(b) 
requires that “[a]ny doubt concerning personnel being considered for national security 
eligibility will be resolved in favor of the national security.” In reaching this decision, I 
have drawn only those conclusions that are reasonable, logical and based on the 
evidence contained in the record. Likewise, I have avoided drawing inferences 
grounded on mere speculation or conjecture. 
 
Directive ¶ E3.1.14, requires the Government to present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is 
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 
mitigate facts admitted by the applicant or proven by Department Counsel, and has the 
ultimate burden of persuasion as to obtaining a favorable clearance decision.”  
 
A person who seeks access to classified information enters into a fiduciary 
relationship with the Government predicated upon trust and confidence. This 
relationship transcends normal duty hours and endures throughout off-duty hours. The 
Government reposes a high degree of trust and confidence in individuals to whom it 
grants access to classified information.  Decisions include, by necessity, consideration 
of the possible risk the applicant may deliberately or inadvertently fail to protect or 
safeguard classified information. Such decisions entail a certain degree of legally 
permissible extrapolation as to potential, rather than actual, risk of compromise of 
classified information. 
  
 
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Section 7 of Executive Order 10865 provides that adverse decisions shall be “in 
terms of the national interest and shall in no sense be a determination as to the loyalty 
of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple 
prerequisites for access to classified or sensitive information).   
 
Analysis 
 
Guideline E, Personal Conduct 
 
 The security concern relating to the guideline for Personal Conduct is set out in 
AG ¶ 15: 
 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual's reliability, trustworthiness, and ability to protect 
classified or sensitive information. Of special interest is any failure to 
cooperate or provide truthful and candid answers during national security 
investigative or adjudicative processes.  
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 16. One is potentially applicable in this case:   
 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a vulnerability to exploitation, manipulation, or duress by a 
foreign intelligence entity or other individual or group. Such conduct 
includes: 
 
(1) engaging in activities which, if known, could affect the 
person's personal, professional, or community standing. 
 
  Applicant received “hand jobs” from women at massage parlors on several 
occasions. His wife and coworkers do not know of this conduct. As a result, he is 
vulnerable to exploitation, manipulation, and duress. The evidence is sufficient to raise 
this disqualifying condition.  
 
 AG ¶ 17 provides conditions that could mitigate security concerns. I considered 
all of the mitigating conditions under AG ¶ 17 including: 
 
(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; 
 
(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 contributed to untrustworthy, 
 
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unreliable, or other inappropriate behavior, and such behavior is unlikely 
to recur; 
 
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress; and 
 
(g) association with persons involved in criminal activities was unwitting, 
has ceased, or occurs under circumstances that do not cast doubt upon 
the individual's reliability, trustworthiness, judgment, or willingness to 
comply with rules and regulations. 
 
 Applicant remains vulnerable to coercion. He produced no evidence of 
counseling or positive steps that would alleviate the risks present from his conduct. He 
claims he abstained from receiving sexual gratification at massage parlors from 2009 to 
2014, but resumed several times in 2014 and 2016. This decision demonstrated 
questionable judgment. None of the above mitigating conditions apply. 
 
Guideline D, Sexual Behavior 
 
 The security concern relating to the guideline for Sexual Behavior is set out in AG 
¶ 12: 
 
Sexual behavior that involves a criminal offense; reflects a lack of 
judgment or discretion; or may subject the individual to undue influence of 
coercion, exploitation, or duress. These issues, together or individually, 
may raise questions about an individual's judgment, reliability, 
trustworthiness, and ability to protect classified or sensitive information. 
Sexual behavior includes conduct occurring in person or via audio, visual, 
electronic, or written transmission. No adverse inference concerning the 
standards in this Guideline may be raised solely on the basis of the sexual 
orientation of the individual. 
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 13. All are potentially applicable in this case:   
 
(a) sexual behavior of a criminal nature, whether or not the individual has 
been prosecuted; 
 
(b) a pattern of compulsive, self-destructive, or high-risk sexual behavior 
that the individual is unable to stop;  
 
(c) sexual behavior that causes an individual to be vulnerable to coercion, 
exploitation, or duress;  and 
 
(d) sexual behavior of a public nature or that reflects lack of discretion or 
judgment. 
 
 
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  Applicant received sexual gratification at massage parlors on multiple occasions. 
His conduct is criminal and represents a pattern of high-risk sexual behavior that 
reflects a lack of discretion or judgment. It also creates a vulnerability to coercion, as 
discussed above under Guideline E. The evidence is sufficient to raise these 
disqualifying conditions.  
 
 AG ¶ 14 provides conditions that could mitigate security concerns. I considered 
all of the mitigating conditions under AG ¶ 20 including: 
 
(a) the behavior occurred prior to or during adolescence and there is no 
evidence of subsequent conduct of a similar nature; 
 
(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 judgment; 
 
(c) the behavior no longer serves as a basis for coercion, exploitation, or 
duress; 
 
(d) the sexual behavior is strictly private, consensual, and discreet; and 
 
(e) the individual has successfully completed an appropriate program of 
treatment, or is currently enrolled in one, has demonstrated ongoing and 
consistent compliance with the treatment plan, and/or has received a 
favorable prognosis from a qualified mental health professional indicating 
the behavior is readily controllable with treatment. 
 
 None of the above mitigating conditions apply. Applicant is 62 years old. He has 
visited public massage parlors and received sexual gratification on multiple occasions 
prior to 2009, stopped for a period of several years, and then again resumed receiving 
those services. There is no evidence that future instances of this nature are unlikely to 
occur. His wife still does not know of this conduct, which makes him susceptible to 
coercion, exploitation, or duress. He has not attended any counseling. 
 
Guideline J: Criminal Conduct 
 
AG ¶ 30 sets forth the security concerns pertaining to criminal conduct:  
 
Criminal activity creates doubt about a person's judgment, reliability, and 
trustworthiness. By its very nature, it calls into question a person's ability 
or willingness to comply with laws, rules and regulations. 
 
AG ¶ 31 describes one condition that could raise a security concern and may be 
disqualifying in this case: 
 
(b) evidence (including, but not limited to, a credible allegation, an 
admission, and matters of official record) of criminal conduct, regardless of 
 
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whether the person was formally charged, formally prosecuted or 
convicted. 
 
Applicant received sexual services at massage parlors. He claimed that he only 
paid for the massage and not the sexual services that were provided in hopes of a 
better tip. His claim is not credible. The evidence establishes the above disqualifying 
condition. 
AG ¶ 32 provides two conditions that could mitigate the above security concerns 
raised in this case: 
(a) so much time has elapsed since the criminal 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; and 
(d) there is evidence of successful rehabilitation; including but not limited 
to the passage of time without recurrence of criminal activity, restitution, 
compliance with the terms of parole or probation, job training or higher 
education, good employment record, or constructive community 
involvement. 
 Applicant has not established either of the above mitigations conditions. The 
evidence continues to cast doubt on the individual's reliability, trustworthiness, and 
judgment. He has not documented any rehabilitation, aside from a group award he 
received. 
 
Whole-Person Concept 
 
 Under the whole-person concept, the administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of the applicant’s 
conduct and all relevant circumstances. The administrative judge should consider the 
nine adjudicative process factors listed at AG ¶ 2(d):  
 
(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. 
 
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.  
 
 
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I considered the potentially disqualifying and mitigating conditions in light of all 
facts and circumstances surrounding this case. I have incorporated my comments under 
Guidelines E, D, and J in my whole-person analysis. Some of the factors in AG ¶ 2(d) 
were addressed under those guidelines, but some warrant additional comment.  
 
Applicant remains vulnerable to coercion. Overall, the record evidence leaves me 
with questions or doubts as to Applicant’s eligibility and suitability for a security 
clearance. For all these reasons, I conclude Applicant failed to mitigate the personal 
conduct, sexual behavior, and criminal conduct security concerns.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of the Directive, are: 
 
Paragraph 1, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 1.a:    Against Applicant 
 
Paragraph 2, Guideline D:   AGAINST APPLICANT 
 
  Subparagraph 2.a:    Against Applicant 
 
Paragraph 3, Guideline J:   AGAINST APPLICANT 
 
  Subparagraph 3.a:    Against Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
________________________ 
Jennifer Goldstein 
Administrative Judge