Sex, drugs and rock and roll was the anthem of the 60’s and 70’s. Only two of them will put your clearance eligibility at risk. This article deals with the Sexual Behavior part. Adjudicative guideline D, Sexual Behavior, covers an array of conduct, behavior and actions that could reflect negatively an individual’s ability to protect classified information.
Sexual Behavior and Personal Conduct – Case No. 12-06311
In this case, the applicant is a 51-year-old employee of a defense contractor. In October 2014, the Department of Defense (DoD) issued a Statement of Reasons (SOR) detailing security concerns under Guidelines D and E. The applicant answered the SOR in October 2014, and requested a hearing before a Department of Hearings and Appeals (DOHA) Administrative Judge (AJ).
The SOR alleged the applicant was involved in a sexual affair with a friend’s wife, beginning in 1988 or 1989. The applicant submitted a Questionnaire for National Security Positions (SF 86) in January 2012 as he was applying for an upgraded clearance. He had held a clearance for more than 25 years. He reported the affair in the Additional Comments section of the SF 86 and discussed the affair during the personal interview portion of his background investigation in March 2012. He told the investigator that he intended to continue with the affair. The affair continued with varying frequency of contact until 2013. From 1987 until 2011, the applicant served in the U.S. military. He was aware that his adultery was a crime under the Uniform Code of Military Justice and he could have been subjected to disciplinary action. On one occasion, the friend called the applicant and asked if he was having an affair with his spouse. The applicant lied and said he was not. The applicant told his spouse about the affair in October 2014.
The applicant testified at his hearing, called three witnesses and submitted numerous exhibits, which attested to “his excellent duty and job performance, dedication, work ethic, honesty, dependability, reliability, trustworthiness, patriotism, and integrity.”
The AJ concluded that based on the facts of the case, a review of the adjudicative guidelines and using the whole-person concept, the applicant had mitigated the security concerns and is eligible for access to classified information.
Analysis/Opinion
I disagree completely with the AJ’s determination and hope the Government appeals this decision. It is incredulous to me that an individual who was involved in an approximately 24-year affair, violated military regulations, and lied to a friend should suddenly be considered trustworthy enough to hold security clearance eligibility. It is obvious that he ended the affair when he saw his background investigation going poorly and only told his spouse after he received the SOR, realizing the possibility of losing his clearance and potentially being terminated from employment. Additionally, the applicant served in the military for 24 years and probably rose to the position of senior enlisted or possibly officer status. As such, he would have trained, counseled and mentored lower ranking personnel in military values and conduct. The AJ reported that “the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance.” I cannot disagree more. Based on my reading of the facts presented, the applicant has not mitigated the concerns and should be ineligible for a clearance.
