KEYWORD: Guideline D; Guideline E
DIGEST: Applicant’s many years of utilizing prostitutes, incidents that he has not admitted to his
wife because he is not sure how she will respond, raise reasonable concerns about his judgment
and the extent to which he could be subjected to undue influence or coercion.  Of course, the
Judge was required to consider Applicant’s character evidence and his explanations for his
misconduct.  In addition, we give deference to a Judge’s credibility determinations.  Directive ¶
E3.1.32.1.  However, that deference has its limits.  When a Judge fails to address record evidence
that is contrary to his favorable credibility determination, it provides a serious reason to believe
that he has simply substituted a favorable impression of an applicant’s demeanor for record
evidence.  In this case, the totality of Applicant’s misconduct–especially his omission of material
information during his 2014 polygraph due to concern over its effect on his clearance–persuades
us that the Judge’s credibility determination is not entitled to the deference that we normally
extend to such conclusions. Favorable decision reversed.
CASENO: 17-02785.a1
DATE: 05/08/2019
DATE: May 8, 2019
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In Re: )
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----------------------- ) ISCR Case No. 17-02785
)
)
Applicant for Security Clearance )
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APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Andrea Corrales, Esq., Department Counsel
FOR APPLICANT
Troy L. Nussbaum, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
September 14, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for
that decision–security concerns raised under Guideline D (Sexual Behavior) and Guideline E
(Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  Applicant requested a hearing.  On January 30, 2019, after the hearing, Defense Office
of Hearings and Appeals (DOHA) Administrative Judge Philip J. Katauskas granted Applicant’s
request for a security clearance.  Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and
E3.1.30.
Department Counsel raised the following issue on appeal: whether the Judge’s favorable
decision under both Guidelines ran contrary to the weight of the record evidence.  Consistent with
the following, we reverse.
The Judge’s Findings of Fact
Applicant engaged the services of prostitutes from the early 1990s until at least 2014.  Most
of these incidents occurred in foreign countries, where prostitution was legal.  However, on one
occasion in 2010 or 2011 he engaged a prostitute in the U.S.  He knew that this incident was not
legal but did not consider it a “major crime.”  Decision at 3.  Applicant’s wife suffers from a medical
condition that has substantially diminished her sex drive, although there is intimacy between them. 
Applicant and she have attended counseling but with limited effect.  In addition, Applicant had an
extramarital affair in about 2007, which lasted about six months.  Applicant’s wife is aware of this
affair.  However, she is not aware of his interactions with prostitutes.  
Applicant did not disclose his affair during an October 2014 polygraph examination.  He
stated that the reason for this omission was that the examination focused upon prostitution.  He
disclosed the affair during the post-test interview along with his reasons for the prior omission.  In
addition, Applicant did not disclose the incident of prostitution that occurred in the U.S. on his 2017
security clearance application (SCA).  However, he did disclose this incident during his October
2014 polygraph.
Applicant submitted to an evaluation by a licensed psychologist, who concluded that he was
free from any major psychological diagnosis.  He stated that there is no reason to believe that
Applicant’s security-significant conduct will recur.  Applicant enjoys an excellent reputation for
reliability, honesty, and trustworthiness.
The Judge’s Analysis
The Judge noted that Applicant last engaged a prostitute four years ago and that he has stated
that he will never do so again.  He testified credibly that he cannot be blackmailed, plausibly
explaining why he has not disclosed his misconduct to his wife.  Regarding Guideline E, the Judge
cited to Applicant’s explanation for having failed to disclose his extramarital affair during his
October 2014 polygraph.  He found credible Applicant’s claim that the exam had focused on
prostitution and that he believed that his affair was not something that he had to admit.
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Discussion
There is a strong presumption against the grant or maintenance of a security clearance.  See
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).  The
applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate admitted or
proven facts.  The applicant has the burden of persuasion as to obtaining a favorable decision. 
Directive ¶ E3.1.15.  The standard applicable in security clearance decisions “is that a clearance may
be granted only when ‘clearly consistent with the interests of the national security.’” Department of
the Navy v. Egan, 484 U.S. 518, 528 (1988).  “Any doubt concerning personnel being considered for
national security eligibility will be resolved in favor of the national security.”  Directive, Enclosure
2, App. A ¶ 2(b). 
In deciding whether the Judge's rulings or conclusions are erroneous, we will review the
decision to determine whether:  it does not examine relevant evidence; it fails to articulate a
satisfactory explanation for its conclusions, including a rational connection between the facts found
and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails
to consider an important aspect of the case; it offers an explanation for the decision that runs contrary
to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of
opinion.  See ISCR Case No. 14-02563 at 3-4 (App. Bd. Aug. 28, 2015).
A security clearance decision must be based upon a reasonable interpretation of the record
evidence viewed as a cumulative whole.  See, e.g., ISCR Case No. 12-04813 at 4 (App. Bd. Jul. 31,
2015).  A Judge is presumed to have considered all of the evidence in the record.  However, a Judge
should not ignore significant record evidence that a reasonable person would expect  to be addressed. 
See, e.g., ISCR Case No. 15-02903 at 3 (App. Bd. Mar. 9, 2017).  Department Counsel argues that
the Judge’s decision did not devote attention to significant contrary evidence.  She argues that the
decision is not sustainable because it runs contrary to the greater weight of the evidence.  
We find Department Counsel’s argument to be persuasive.  We note the following findings
and /or record evidence that undercut the Judge’s favorable decision:
Applicant engaged the services of prostitutes over a period of several years.  Decision
at 2-3; Response to SOR at 1; Tr. at 39.
Applicant was first approved for a clearance in 2008.  Government Exhibit (GE) 1,
2017 Security Clearance Application at 38.  He engaged prostitutes about eleven
times between 2010 and 2014.  Tr. at 39.  Therefore, many of these incidents took
place while Applicant held a clearance.
Although most of the incidents occurred in foreign countries where such conduct was
legal, one of them occurred in the U.S., where it was illegal.  Decision at 3; Tr. at 40,
80.
3
Applicant did not disclose this U.S. offense in his 2017 SCA.  Decision at 4; GE 1
at 38.  The offense in the U.S. is the only one which Applicant understood to have
been illegal.  Decision at 4.
Applicant has not disclosed his prostitution offenses to his wife, because he is
concerned about the effect it will have on her.  Tr. at 48.  
Applicant engaged in a six-month extramarital affair, of which his wife is aware. 
Decision at 4; Tr. at 89.    
However, Applicant did not disclose this affair during the October 2014 polygraph
examination.  He did disclose it during the post-test interview following a subsequent
polygraph.  He stated that the reason that he had not disclosed it in 2014 was that
“[he] was afraid that it would [a]ffect his security processing, and [he] was
embarrassed.” Polygraph Report dated March 3, 2015, included in GE 3.  
  This evidence demonstrates that Applicant’s alleged sexual behavior occurred while he held
a clearance; that it included an incident that was illegal in the U.S. jurisdiction where it occurred;
and that he failed to be totally candid about his security-significant offenses during the investigation
and adjudication of his case.  We find persuasive Department Counsel’s argument that the Judge’s
favorable decision failed adequately to address this evidence as a whole.  In particular, we note that
the Judge did not address Applicant’s admission that, during his 2014 polygraph, he had withheld
information about his affair because he was afraid of the affect it might have on his access to
classified information.  The Directive is clear that it is of special concern for an applicant to fail to
provide truthful and candid answers during the processing of an SCA.  It also states that “[t]he
following will normally result in an unfavorable national security eligibility determination . . . : (b)
refusal to provide full, frank, and truthful answers to lawful questions of investigators, security
officials, or other official representatives in connection with a personnel security . . . determination.” 
Directive, Encl. 2, App. A ¶ 15.  Accordingly, Applicant’s failure to have admitted his six-month
affair until it was discovered during the course of a subsequent polygraph examination raises serious
concerns about his willingness to disclose security-significant conduct.  This was a matter that the
Judge should have addressed forthrightly.  
Moreover, Applicant’s many years of utilizing prostitutes, incidents that he has not admitted
to his wife because he is not sure how she will respond, raise reasonable concerns about his
judgment and the extent to which he could be subjected to undue influence or coercion.1  Of course,
the Judge was required to consider Applicant’s character evidence and his explanations for his
misconduct.  In addition, we give deference to a Judge’s credibility determinations.  Directive ¶
E3.1.32.1.  However, that deference has its limits.  When a Judge fails to address record evidence
1See Directive, Encl. 2, App. A ¶ 12: “The Concern:  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 of sensitive information.”  
4
that is contrary to his favorable credibility determination, it provides a serious reason to believe that
he has simply substituted a favorable impression of an applicant’s demeanor for record evidence. 
See, e.g., ISCR Case No. 15-05565 at 4-5 (App. Bd. Aug. 2, 2017).  In this case, the totality of
Applicant’s misconduct–especially his omission of material information during his 2014 polygraph
due to concern over its effect on his clearance–persuades us that the Judge’s credibility determination
is not entitled to the deference that we normally extend to such conclusions.  
Given the above, we conclude that the Judge’s decision fails to consider relevant factors and
runs contrary to the weight of the record evidence.  In light of the totality of the evidence, we
conclude that the Judge erred in finding that Applicant had met his burden of persuasion as to
mitigation.  
Order
The Decision is REVERSED.  
Signed: Michael Ra’anan             
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody              
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy                
James F. Duffy
Administrative Judge
Member, Appeal Board 
5