WHAT KIND OF SECURITY CLEARANCES ARE THERE?
There are two basic categories of security clearances: Personal and Facility. As the terms indicate, a personal clearance is one that an individual is granted while a facility clearance is one granted to a place – typically the worksite where the classified work will take place.
Please note that in addition to Security Clearance Adjudications, similar processes will apply to Public Trust Suitability Determinations. For ease of discussion we will refer to security clearances, but many of the same issues and process apply to public trust suitability determinations.
WHAT ARE THE DIFFERENT KINDS OF PERSONAL CLEARANCES?
The three most common classifications of clearances are Confidential, Secret and Top Secret. There are other clearances that can be issued, but these three are the ones most often issued. The higher the level of clearance granted, the greater the scrutiny that will be given to someone seeking to receive or retain that level of clearance. An important thing to note, however, is that the substantive adjudication of the clearances will be the same regardless of the level of clearance under consideration. In other words, if the government has concerns about issuing a clearance, the clearance will more likely be denied, than downgraded. The most visible difference between the adjudication of the various levels of clearance is the breadth and depth of the background investigation. The actual application of the adjudicative criteria will be the same without regard to the level of clearance under consideration.
In addition to “clearances,” however, there is another level of access to classified information and that involves what are known as “Special Access Programs” (SAP), the most well known being what is called “Sensitive Compartmented Information” (SCI). Whenever a person is being considered for eligibility in a SAP, an even higher level of scrutiny will be involved and, in such cases, the SAP determination is considered to be primary, with the clearance being considered collateral to the SAP. Within the Department of Defense, the most common SAP is SCI and, in most (but not all) instances, when a person receives a Top Secret (TS) clearance they will also be receiving SCI. This is commonly reflected as “TS/SCI.”
Comparable to, but different from, a “clearance” is when the government has to make a “suitability” determination for employment. A clearance is required when the employee will have access to classified material. There are a number of Federal jobs that do not require access to classified information, but for which the government still needs to know some background information about the applicant before granting them employment. These are called “Public Trust Positions.” For these jobs the applicant has to complete an SF-85P, Questionnaire for Public Trust Positions. These forms are similar to the SF-86, but do not require as much background information as does the SF-86 dealing with jobs involving classified material.
WHO ARE APPLICANTS?
There are two broad categories of people who apply for a clearance: Those who work directly for the Federal Government, and those who work for companies that have contracts with the Federal Government. The latter category are often referred to as “Defense Contractors” because the Department of Defense is the largest adjudicator of clearances, but the contractor category applies to any company that contracts with any Executive Branch Federal Agency. Substantively, all cases (government employee and contractor employee) are adjudicated the same; procedurally, however, different rules apply depending on whether the “Applicant” is a government employee or a contractor employee and depending on which Federal Executive Agency is involved. By memorandum of understanding, most Executive Branch Federal Agencies apply the Department of Defense Directive for contractor cases (DoD Directive 5220.6) to the adjudication of contractor case clearances within their respective agency. For Federal government employees within DoD, the guiding regulation is DoD 5200.2-R. Other Federal Executive Agencies will have similar (although not exactly the same) procedures for their government employees.
WHAT IS THE ADJUDICATIVE PROCESS?
The adjudicative process is “how” a case works through the system of adjudication. The category of the applicant for a clearance determines how the case will be processed. It is important to know that a security clearance can be reviewed at any time, for any reason, or for no reason at all. Typically a clearance will be reviewed or adjudicated in one of three scenarios: an initial application, a periodic review of an existing clearance, or upon the occurrence of a reportable incident.
HOW DOES A PERSON APPLY FOR A CLEARANCE?
In order to be considered for a clearance a person must be employed in, or have been offered a firm offer of employment for, a position that requires the employee to have access to classified information. Unlike a passport or a driver’s license, an individual does not actually apply for the clearance themselves. In reality, it is the employer of the individual who sponsors that employee for a clearance. Similarly, for independent contractors, they must have a prime contractor who will sponsor them for a clearance.
WHAT ARE THE STEPS FOR APPLYING FOR A CLEARANCE?
The first step in applying for a clearance is to complete the Standard Form 86 (SF-86) the Questionnaire for National Security Positions. Most people will typically complete this form electronically utilizing the e-QIP computer version. The SF-86 is specifically designed to solicit information about the subject matter areas that the government has determined are relevant to determining whether an individual is eligible to receive a clearance. It is important to review this form in detail and gather all the necessary information in order to properly, honestly and completely answer all the questions. It is also important to know that at the end of the SF-86 (or at the end of each question if using the e-QIP format) is a comments space for you to explain some answers or provide additional information to fill in any gaps. You should print out a copy of the form and write out your answers to each question. DO NOT attempt to complete this on-line and from memory without first having completed a hard copy to use as a “go by.” Honesty, accuracy, and completeness are of paramount concern at this stage of the process.
WHAT HAPPENS IF I FORGET TO INCLUDE SOMETHING IN THE SF-86?
Regrettably, many people think that if they forget to include something in their SF-86 they can just explain it later, perhaps during their background investigation interview. The instructions for the form actually lead people to believe that this is acceptable. Unfortunately, the government has made the policy decision that such failures are evidence of a material and deliberate attempt to avoid providing potentially damaging information and will almost assuredly use that as a basis for questioning the applicant’s integrity and result in a denial of the clearance now, and possibly for a substantial future period of time. If you do submit an SF-86, answer a question, or provide a document and, after the submission, later realize that you left something out, you MUST provide that information BEFORE you are interviewed or asked about it by the government. If the government raises that question/issue first, you are considered to have been “confronted” with the discrepancy and get no credit for clarifying the situation.
WHAT ARE THE SUBJECT AREAS THAT THE GOVERNMENT CONSIDERS IN ADJUDICATING A SECURITY CLEARANCE?
The government has identified thirteen different substantive areas that they consider in adjudicating security clearances. They are identified as “Adjudicative Guidelines” and, in some (but not all) of the Regulations each one is referred to by a specific letter of the alphabet from A to M. They are:
GUIDELINE A: Allegiance to the United States;
GUIDELINE B: Foreign Influence;
GUIDELINE C: Foreign Preference;
GUIDELINE D: Sexual Behavior;
GUIDELINE E: Personal Conduct;
GUIDELINE F: Financial Considerations;
GUIDELINE G: Alcohol Consumption;
GUIDELINE H: Drug Involvement;
GUIDELINE I: Emotional, Mental and Personality Disorders;
GUIDELINE J: Criminal Conduct;
GUIDELINE K: Security Violations;
GUIDELINE L: Outside Activities; and,
GUIDELINE M: Misuse of Information Technology Systems.
The Guidelines are all equally important, but it is significant to note that Guideline E could be considered the first among equals. Additionally, Guideline E is the one guideline that has two components to it: behavior and integrity. For the other Guidelines there is generally only that one particular subject matter involved. Guideline E, however, can by definition be applicable to almost anything that may also be specifically listed in another Guideline.
In addition to the specific criteria, listed above, the government will also apply what is known as the “whole person concept.” This involves looking at the applicant’s entire life, not just some specific items or incidents that may have been listed as being of concern. The whole person concept is best understood by the explanation of The Adjudicative Process, which is defined as an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudication process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination. In evaluating the relevance of an individual’s conduct, the adjudicator should consider the following factors:
The nature, extent, and seriousness of the conduct;
the circumstances surrounding the conduct, to include knowledgeable participation;
the frequency and recency of the conduct;
the individual’s age and maturity at the time of the conduct;
the voluntariness of participation;
the presence or absence of rehabilitation and other permanent behavioral changes;
the motivation for the conduct;
the potential for pressure, coercion, exploitation, or duress; and
the likelihood of continuation or recurrence.
WHAT ARE THE SMITH AND BOND AMENDMENTS?
Several years ago the government enacted the SMITH AMENDMENT, which implemented restrictions regarding eligibility for granting security clearances, within the Department of Defense only, prohibiting the granting of clearances in four situations:
A person who was “Dishonorably Discharged” or “Dismissed” from the military service;
A person who has been convicted In a U.S. Federal or State court, including Courts-Martial, sentenced to imprisonment for a term exceeding one year and actually incarcerated for not less than one year;
A person who is a current abuser of or addicted to a controlled substance; and,
A person who is mentally incompetent.
With regard to number 1, above, an enlisted member can receive a Dishonorable Discharge. The officer equivalent of the Dishonorable Discharge is a “Dismissal.” This provision IS NOT triggered by receiving an “Other Than Honorable” (OTH) administrative discharge. Receipt of an OTH may impact on an ability to obtain a clearance, but receiving an OTH does not preclude getting a clearance in the same manner as does receipt of a Dishonorable Discharge/Dismissal.
With regard to numbers 1 and 2, above, it was possible to obtain a waiver from those prohibitions and have a clearance granted. With regard to numbers 3 and 4, above, no waivers were permitted so long as those conditions continued to exist. It was only for a very short period of time during which waivers were permitted and approved for numbers 1 and 2 before the Smith Amendment was repealed. Though it is possible that the authorities which granted such waivers may become more generous in granting clearances in the future, during the two years such waivers were granted, they were only granted in a very few cases and under very specific scenarios, essentially, “grandfathering” people who committed their transgressions about 30 years ago, have an otherwise spotless record and were issues and maintained a clearance for a substantial period of time before the Smith Act was implemented.
Because of the inconsistency of application as the Smith Amendment applied only to the Department of Defense, effective 1 January 2008, that law has been repealed. The BOND AMENDMENT has been implemented its place. This law is somewhat similar to the Smith Amendment, but it now applies to all Government agencies.
The Bond Amendment prohibits all Federal agencies from granting or renewing a security clearance for any covered person who is an unlawful user of a controlled substance or is an addict. This provision is the same as the Smith Amendment non-waivable bar on current users of illegal drugs or current addicts. The provisions pertaining to individuals who have been convicted of crimes and incarcerated for not less than one year, who have been discharged or dismissed from the Armed Forces under dishonorable conditions, or who are mentally incompetent as determined by a qualified mental health professional, now apply ONLY to those applicants seeking access to Special Access Programs (SAP), Restricted Data (RD), or Sensitive Compartmented Information (SCI). This is a significant change from the Smith Amendment which applied to both the clearance and those higher level programs. It is important to appreciate, however, that while there may no longer be a “per se” bar to those individuals, those factors will continue to be considered as part of the adjudication process.
HOW WE HELP YOU COMPLETE YOUR SF-86 (or other Federal Forms, e.g., OF-306, SF85, SF85P)?
By engaging our services BEFORE you submit your SF-86, we can help ensure that there will be no integrity issues and can also help you identify potential trouble areas and resolve as many of those issues as possible BEFORE the government begins its background investigation. By taking this proactive step you can ultimately save time, money and reduce the potential for denial of the clearance than if you do it yourself and make mistakes. Though we cannot guarantee a particular outcome, we can ensure that you have a substantially better chance of successfully navigating the adjudicative process. We not only help you complete the SF-86, we also help respond to written interrogatories from the government and prepare you for the interviews that you will undergo. We know the questions that the investigators will be asking. We know that the SF-86 is just the beginning of the process and that the government can and will be asking you about things far outside the specific time periods covered in some of the subject areas on the SF-86.
HOW WILL MY CASE BE PROCESSED?
The first thing to appreciate is that security clearance cases are processed differently depending on the status of the individual and the nature of the clearance being considered. If you work for the government your case is processed one way, if you work for a company your case is processed a different way. Also, different Federal Agencies have different procedures. Additionally, if you are being considered for a “clearance” certain processes will apply and if you are being considered for a “special access program” (e.g., SCI) different processes will apply.
Substantively, the same Guidelines are applied regardless of the status of the individual. But procedurally, there are differences.
PROCESSING GOVERNMENT EMPLOYEE CASES WITHIN DoD
If you are employed directly by the Federal Government within DoD, the controlling regulation is DoD Directive 5200.2-R. This regulation provides that when the government is contemplating denying or revoking a clearance the employee will be issued a Letter of Intent (LOI) notifying the employee of the government’s intention. The letter of intent will be issued by the Central Adjudication Facility (CAF) having jurisdiction over that agency (e.g., DONCAF is the Department of the Navy Central Adjudication Facility). Included with the LOI will be a Statement Of Reasons (SOR). The LOI simply forwards the SOR and gives the employee notification of their rights in the process. The SOR contains the actual allegations or concerns to the government.
Upon receipt of the LOI/SOR, the employee has to make certain decisions. If no action is taken by the employee within the time period provided for a response, the clearance will be denied/revoked. The employee will typically be given a short time period within which to let the government know if they intend to fight the proposed denial/revocation; and then 30 days to submit the actual substantive response/answer to the SOR.
After the answer to the SOR is submitted – via the chain of command – back to the CAF the first level of review will be conducted. After review, the CAF will either grant/retain the clearance or deny/revoke the clearance. If the clearance is denied/revoked, then the employee has the right to appeal that action. The appeal can be done in one of two ways. The employee can either provide additional documentation or the employee may request a Personal Appearance before an Administrative Judge from the Defense Office of Hearings and Appeals (DOHA). The evidence from that decision is then provided to the Personnel Security Appeals Board (PSAB) of the CAF for a final decision.
PROCESSING CONTRACTOR EMPLOYEE CASES WITHIN DoD
Contractor employee cases within DoD have their cases adjudicated under the procedures articulated in DoD Directive 5220.6. By memorandum of understanding most Federal Executive Agencies apply the provisions of this Directive to the adjudication of contractor employees with those agencies. They also pass adjudication of these cases to the same agencies within DoD that handle Defense Contractor cases. Employees of contractors may have action taken on their case by several different agencies within the Department of Defense. The four most common from which contact may be made or action taken are the Defense Security Service (DSS), Defense Industrial Security Office (DISCO), Defense Legal Services Agency (DLSA) and the Defense Office of Hearings and Appeals (DOHA). If there are questions regarding granting/revoking a clearance the employee will receive a Statement of Reasons (SOR). The employee then has 20 days to chose among three options: do nothing and the clearance will be denied/revoked; provide more documentation and a decision will be made by an Administrative Judge at DOHA based upon the File Of Relevant Material (FORM); or, request a hearing before a Judge from DOHA.
Many people believe that they can further explain their case to the satisfaction of the government simply by providing more documentation to DOHA and do not request a hearing. Regrettably, congressional testimony and anecdotal evidence has provided that in approximately 86% – 95% of the cases in which that decision is made, the government denies/revokes the clearance. The clear message is that if a person is issued a SOR, they must request a hearing if they want to have any realistic chance of getting their clearance.
WHAT HAPPENS IF MY CLEARANCE IS DENIED?
If a clearance is denied, the individual must wait a minimum of one year before being again being eligible for consideration of a clearance.
HOW DOES THIS AFFECT MY EMPLOYMENT?
There are two very closely related, but technically different issues that will be at play:
1) employment; and, 2) clearance. Having a clearance is probably a condition of employment, however, thus for the vast majority of people the reality is “lose the clearance, lose the job.” The government does not generally take away the existing clearance of an employee of a contractor during the process of reaching a final decision on whether to revoke the clearance. Of course if the allegations are serious enough that may happen, but in the vast majority of cases an employee of a contractor – who already has a clearance – will be permitted to keep the clearance during the process of adjudication. If, however, a clearance has not already been issued, the government may decline to issue an “interim” clearance. An interim clearance is one that may be granted after an SF-86 has been submitted, but before a final adjudication has been made. There is no appeal of the government’s decision to decline to grant an interim clearance. Unfortunately, many people find that their offer of employment is contingent upon either already possessing a valid clearance or being issued in interim clearance. Therefore, if the government declines to issue an interim clearance, their employment comes to an end. This has the double adverse impact of losing the job – which then results in the security clearance adjudication being closed based upon “loss of jurisdiction” (i.e., the individual no longer has the job, so the government no longer has jurisdiction over the clearance) – and having the final entry in the security clearance file being adverse (i.e., declination of interim) which makes it more difficult to find a later employer willing to give the person a chance to get a clearance.
HOW LONG IS A CLEARANCE VALID?
Generally a clearance will be valid for 15 years for Confidential clearances; 10 years for
Secret clearances; and, 5 years for Top Secret clearances and Special Access Programs such as SCI. But, a clearance will expire either at the end of such a time period or not later than 2 years after leaving the position of employment that requires the clearance, whichever first occurs. Finally, it must always be remembered that a clearance can be reviewed at any time, for any reason, or no reason at all.
WHAT IS A REPORTABLE INCIDENT?
Part of the affirmative responsibility imposed on an individual with a clearance is to keep the government informed of any events that may affect their eligibility to possess a clearance. Thus, for example, if an individual has a DUI, runs into periods of financial difficulty, becomes involved with outside activities, to name just a few situations, there is an affirmative obligation to notify your facility security officer of this situation. Failure to report such an incident can itself be a reason for denial/revocation of a clearance.
WHAT KINDS OF CASES ARE THERE?
Through experience we have identified three different “categories” of cases: Status, Behavior, and Integrity. You will not find this articulated in a regulation but this is a practical, hands-on, way to look at the cases.
STATUS: In a status case there is just something in the persons’ life that needs to be looked at, but it does not necessarily involve behavior or integrity. The most common status cases involve citizenship issues. Typical cases involve immigrants to the U.S. who later become citizens and get jobs requiring clearances, but who still have immediate family members who are residents and/or citizens of another country; U.S. citizens married to non-U.S. citizens; U.S. citizens living abroad, and U.S. citizens who have extensive foreign connections. In these cases the government just needs to know whether those foreign connections could be of a security concern. The particular countries involved are significant factors in determining whether a clearance will be granted. Geopolitical issues will play a significant role in whether a country is “better” or “worse” at any given time in this area. Historically countries such as Great Britain, Canada, Australia and other close allies are of less concern; while countries where the United States has either current or historical “conflict” (actual or political) are of more concern.
BEHAVIOR: In these cases the person has actually done something that may be of a concern. An important consideration here is that most behavior can be mitigated simply by the passage of time with no recurrence. Behavior cases are where the “whole person concept” is of greatest application. Youthful indiscretions will not normally be of substantial concern. On the other hand, recent behavior or certain types of behavior will be of great concern and may well preclude a favorable adjudication of the case.
INTEGRITY: The MOST IMPORTANT CONSIDERATION which looms over every adjudication. No matter what the issue, when it may have taken place, or any other factor will bear as much weight as will the government’s requirement to be able to trust the person desiring to have a clearance. Honesty may keep the person from getting or keeping a clearance because of the seriousness or recency of the incident; but dishonesty will not only keep the person from getting the clearance now, it may have far reaching and very long lasting impacts on future eligibility for a clearance.
If you would like to talk to an attorney regarding your security clearance, contact Stephanie Flynn Law or call (402) 325-8469 for experienced legal help.