If your clearance is denied or revoked after a lengthy adjudication process, you may be asking yourself, “Will I ever get a security clearance again?” The answer is yes, on the assumption that you take the necessary steps to ensure that the previous reasons for denial or revocation of your security clearance have been sufficiently resolved.
Pursuant to Department of Defense Directive 5220.6, Enclosure 3, Paragraph E3.1.37, applicants whose security clearances have been denied or revoked by the Defense Office of Hearings and Appeals (DOHA) may remain in security clearance for one year. Unable to apply again. Date of initial adverse clearance decision. This means that if you are issued a Statement of Reasons and you respond through a written response or a hearing before a DOHA Administrative Judge, and your clearance is ultimately denied or revoked, The one-year time frame starts from that date. Judge’s decision. If you choose not to respond to the Statement of Reasons, the one-year time frame starts from the date your clearance was officially revoked or denied by the Defense Counter-Intelligence and Security Agency (DCSA). had gone.
However, an applicant cannot simply submit a reapplication application. An applicant must obtain sponsorship for security clearance, and re-applications for security clearance must be initially made through that sponsoring company or organization. This phase usually begins with the sponsoring company requesting the applicant to complete an updated security clearance application.
After the security clearance application is processed, DOHA will notify the sponsoring company that the applicant’s previous approval was denied or revoked, and the applicant will be required to provide evidence, usually to DOHA. within 60 days from the date of notification, that the circumstances or conditions that led to the denial or revocation of the applicant’s security clearance have been remedied or substantially reduced. See Department of Defense Directive 5220.6, Enclosure 3, paragraph E3.1.38. This means you must address and successfully mitigate the charges that previously caused your clearance to be denied or revoked. If you are successful in mitigating the foregoing concerns, you will be allowed to proceed with the normal security clearance investigation and adjudication process by DOHA. If you’re unsuccessful, you’ll be barred from reapplying for security clearance for an additional 12-month period, risking further career setbacks.
The reapplying process can be complicated, especially if you haven’t taken the necessary steps to mitigate the concerns that caused your clearance to be denied or revoked in the first place. A simple written statement may not be sufficient to prove necessary mitigation, and in some circumstances, a more detailed response is required. If you are unable to properly advocate for yourself, you face further delays in obtaining a security clearance and continuing your career.
Security clearance guidelines and solutions are revoked.
Revocation of security clearance can have severe personal and professional consequences. Whether you’re in the military or with a federal agency, you rely on your clearance to fulfill your job and support your family.
After all you endured to get your clearance, like filling out the SF-86 and sifting through your history with a fine-tooth comb, you now find yourself facing a security clearance revocation.
Do you have to accept this fact or is there something you can do to restore your security clearance?
The good news is that you don’t have to go through this process on your own. Yes, there is an appeals process, and it can be long and complicated. You can increase your chances of getting your security clearance back by calling the experts at Security Clearance Law Group. We can stand by you through this difficult process to minimize the consequences as much as possible and get you back in good standing with the DoD.
You are not alone either.
Intelligence officer John Brennan, political consultant Sandy Berger, nuclear scientist Wayne Howley, and US whistleblower Edward Snowden are just a few of the high-profile cases where security clearances were revoked.
And cancellations can happen for a number of reasons.
Why are security clearances revoked?
Security clearances are canceled due to various factors. You may have acted in a way that called into question your loyalty to your country. You may have maintained associations with questionable people, such as those associated with terrorist groups. Certain situations may also call into question your ability to hold a clearance, such as a DUI.
Of course, even a simple job change can cause your security clearance to be revoked. However, if you leave a job and your security clearance is still “current,” once you get a new job that requires a clearance, your status must be reinstated.
What if your security clearance was simply suspended?
A suspended security clearance is slightly more difficult than a revocation. With a revoked security clearance, you can appeal the process fairly quickly, as long as you act quickly. With a suspension, on the other hand, there is no appeal process and no definitive timeline for resolving the matter. The agency will then continue to investigate the actions, circumstances, or associations to make a final decision: to reinstate your clearance or revoke it entirely.
Consequences of Revoked Security Clearance
The most important and obvious consequence of security clearance revocation is that you no longer have access to classified material. This, in turn, could affect your employment, and even lead to termination. You may face a pay cut or even a layoff. If you are in the military, you can be discharged.
What if you think the cancellation was a mistake?
If your security clearance has been revoked and you disagree with the decision, there are steps you can take to potentially reverse the decision.
Intended to cancel
If the federal agency you work for suspects you of wrongdoing, you may be issued a notice of intent to revoke. This letter may also be accompanied by a statement of reasons. Receiving the Letter of Intent (LOI) and Statement of Reasons (SOR) gives you the opportunity to dispute the cancellation, which must be done within 15 days. This is a very short window and requires you to submit a written response to the Department of Defense Concurrence Decision Making Facility (DODCAF) that addresses all of the reasons listed in the SOR. If the department feels your reasons are sufficient to mitigate national security concerns, your clearance may be reinstated.
If not, DODCAF will send you a Letter of Notification (LON), giving you an opportunity to appeal.
Appealing a Revoked Security Clearance
You have sixty days to complete a notice of intent to appeal, giving you a decision between two possible outcomes. You can choose to appear in person at DOHA, where a judge will make the final decision, and thus forward their recommendation to the Personal Security Appeals Board (PSAB).
Another option is to file a direct appeal with the PSAB, which you have thirty days to complete. After receiving your appeal, PSAB will make a final decision before sending its decision to DODCAF.
If the PSAB determines that your appeal substantially alleviates the concerns that warranted your revocation in the first place, your security clearance will be reinstated.
What if your appeal is rejected?
If an administrative judge or PSAB advisory panel decides that your appeal is insufficient, you must wait one year before you can reapply.
It should be noted that neither the judges nor the PSAB has the power to reverse a cancellation decision in the face of a suspected threat to national security. If the concern is valid, these issues must be addressed before your clearance renewal can be considered.
Instead, DOHA judges and the PSAB will address the reasons why your security clearance was revoked to determine whether you were in fact given due process.
The decision to reinstate your security clearance will be based on an assessment of whether the decision to revoke your clearance was based on unfair targeting or arbitrary reasons. In doing so, the board will investigate to determine whether the revocation decision applies to others in your grade or in your department.
Additionally, the Board will decide whether the agency revoking your clearance followed the necessary protocols and if their reasons are sufficient to explain the reasons why your security clearance was revoked.
Finally, judges and the PSAB will look for evidence of discrimination or retaliation.
If it is found that your security clearance was revoked for arbitrary reasons, was discriminatory, or the agency failed to comply with protocol, reinstating your security clearance as part of the appeals process. can be done
How to Increase Your Chances of Reinstated Security Clearance
Whether your security clearance has recently been revoked, or you are about to appeal the revocation, we encourage you to avoid going through the process yourself. Appealing a revoked security clearance can be complicated, and one wrong move could mean job loss.
You can improve your chances of getting your clearance reinstated by calling the Security Clearance Law Group in Carlsbad, California. As security clearance attorneys, we have extensive experience responding to LOIs, handling SORs, and helping clients navigate the appeals process. We can help you make the right decisions that can have a big impact on your career. If you decide to stand before an administrative judge, we can stand with you. And we can help you step-by-step through the appeals process.
What if my security clearance is changed or revoked?
Many federal jobs (civilian and military) require a certain level of security clearance. If your security clearance is revoked, or if the minimum clearance level changes, you will lose your current position and possibly your government career.
You have remedies to appeal a change in security clearance status. You also have rights if you suspect that your clearance has been revoked or changed because of retaliation or discrimination. If your security clearance is in jeopardy, it is important to seek legal guidance immediately.
What are the main reasons for the cancellation of security clearance?
A security clearance may be revoked if your actions, associations, or circumstances call into question your integrity or loyalty to the United States. Judicial guidelines list 13 grounds for annulment, ranging from foreign influence to security breaches.
Your security clearance off duty may also be revoked for personal conduct that may compromise your judgment or loyalty. For example, drug addiction or financial difficulties may convince you to sell your country. A sex scandal can make you vulnerable to blackmailers. and so on.
Why will my security level change?
The most common scenario is a job change or promotion involving sensitive or classified information. But your security clearance can change even if you don’t change jobs. Your position may be reclassified to a higher clearance; For example, external contracts or internal developments that justify higher scrutiny. In this case, you should be given a grace period to apply for a higher clearance level.
If your clearance is suddenly revoked for unclear reasons or if you are singled out for a change in security level, there may be motives behind it. This can cover discrimination, such as actions based on race, religion, national origin, disability or pregnancy. It could be retaliation by management for something you did, such as blowing the whistle on cheating, complaining about sexual harassment, or filing a work injury claim.
Are you really a threat to national security?
Your agency may provide notice of intent to cancel. This gives you the opportunity to dispute the cancellation through administrative channels. If your revocation, suspension or security level change is upheld, you may appeal the security clearance decision to the Merit Systems Protection Board.
However, the MSPB does not have the authority to second-guess national security threats. The Board cannot address the alleged reason for cancellation. It can only assess whether you were denied due process.
- Was the security clearance decision arbitrary? Did this apply to others in your grade or department, or just to you?
- Did the agency follow protocol in revoking or changing your clearance? Can they give a specific reason?
Is there evidence of discrimination or retaliation?
The MSPB can reinstate your security clearance if it determines that you have been abused or that the clearance decision was wrong. There is a short window to appeal an adverse action such as revocation of security clearance. Look for an attorney who is familiar with federal employment law and the Merit System Protection Board.
Passman & Kaplan, PC, practices extensively in this field and has represented many federal employees in security clearance matters.
What happens if your security clearance is suspended or revoked?
Security Clearance Suspended or Revoked Your security clearance may be suspended or revoked at any time. Suspension or revocation may result from an incident report or information discovered during your most recent background investigation.
An incident report is a report submitted to the agency notifying it of a developing situation that may affect your continued eligibility to hold a security clearance. An example is being charged with a criminal offense. If this happens, you need to notify your facility security officer, who then needs to notify the agency that issued you the clearance. If the agency determines that the conduct described in the incident report is sufficient to recommend the suspension or revocation of your clearance, it will send a notice to your company informing you of this.
Department of Defense
If you are a Department of Defense contractor, you will receive a Statement of Reason (SOR) from the Department of Defense Central Education Facility (DoD CAF). The SOR will outline the reasons the DoD CAF is proposing to suspend or revoke your clearance and provide instructions for responding to the proposal. Depending on your clearance level, your response to the SOR will be decided by either a DoD CAF judge or an administrative judge from the Defense Office of Hearings and Appeals (DOHA).
Assessment by CAF
If your response is reviewed by a judge at CAF, your response will consist of a detailed written response to the allegations outlined in the SOR. You must admit or deny the allegations.
If you deny the truth of the allegations, you will need to provide a detailed reason and provide any documents that support your claims. If you admit any allegations, you will need to provide a detailed explanation of how the concern has been mitigated.
The adjudicator will review your response to the SOR and make either a favorable or unfavorable decision. If the adjudicator makes an unfavorable decision, you have the ability to appeal to the Personal Security Appeals Board (PSAB). You can either provide a written appeal to the PSAB or you can request to appear in person before a DOHA Administrative Judge.
If you choose to appear in person, you will present your case to an administrative judge and the judge will make a recommendation, which will be forwarded to the PSAB. The PSAB will review the original SOR, your SOR response, and the administrative judge’s recommendation and make a decision about your eligibility for clearance. The decision of the PSAB is final and cannot be appealed.
Assessment by Administrative Judge
If your response is evaluated by an administrative judge, you can either request a hearing before a judge or request that the judge only provide a written response. If you request a hearing, you will present your case to a judge at a formal hearing. You have the right to be represented by an attorney. A lawyer will also represent the government. The hearing is recorded.
After the judge receives a copy of the transcript of the hearing, he will review all the information gathered during the hearing and make a decision. If you choose to respond in writing, the public prosecutor will send you the government’s arguments as to why you should not keep your clearance. You will then submit a written response to address the government’s concerns. The judge will then review all the documents and make a decision about your clearance.
If the judge denies your approval, you can appeal the decision to the Board of Appeals by written appeal. If you appeal, the government attorney will have an opportunity to submit a reply brief to your appellate brief. The Appeals Board will review both briefs and then render a decision. The decision of the Appeals Board is final.
Intelligence agencies
Most intelligence agencies will send you an untitled letter explaining why the agency has revoked your security clearance. You will usually have two levels of appeal to the intelligence agency and you are allowed to appear in person before a representative of the agency on a first or second level appeal. If you choose to appear in person at a first-level appeal, you will not be able to appear in person at a second-level appeal.
A lawyer can represent you at a personal appearance. As with a written appeal to CAF, you will admit, deny, explain, and/or mitigate the allegations made against you.
Other federal agencies
Other federal agencies have different ways to appeal the suspension or revocation of a clearance. Some have only one level of appeal while others have three levels of appeal. Some provide for personal appearances
The first clearance was denied.
Federal contractors, civilian government employees and military personnel may reapply for a security clearance after a one-year period. Don’t be discouraged by previous rejections. Reapplying is not a big deal. It happens successfully every time. Don’t close the door to clean job opportunities. Just because you were denied a security clearance before, doesn’t mean you can’t get it now. Today, whether you can keep your current job or apply for others often depends on your ability to obtain and maintain a certain level of security clearance eligibility, including positions of trust ( POTs). In many cases, no security clearance = no job. Although you may be the most qualified candidate for a position, you won’t get the job if you can’t get the clearances that go with it.
Clearance denied
In reapplying for a security clearance, the most important word to remember is the word “reduction.” You must be able to eliminate, or at least minimize, all previously described disqualification conditions or concerns as defined by the US government. You must demonstrate that you are no longer a security risk.
The actual security clearance cases below have been decided in favor of the US government, not the applicant. These applicants failed to at least make a good faith effort to show or prove that the previously described disqualifying conditions or concerns no longer exist. If a case is borderline, the applicant does not get the benefit of the doubt. In all decisions, DOHA applies the “manifestly consistent with national security interests” standard. The U.S. Supreme Court has stated that the “clearly consistent with national security interests” test indicates that “the determination of a security clearance should be biased, if necessary, toward denial.” Dept. of Navy v. Egan, 484 U.S. 518, 531 (1988).
Security clearance cases were decided in favor of the US government.
drugs; Personal behavior
The applicant used marijuana weekly in high school and college, stopped in 2004 when he began working for a defense contractor, and then used it four times between November 2009 and December 2011. He has not used marijuana since December 2011. On October 2004 security clearance. . In the application, he disclosed only one use of marijuana in 2000. The security concerns arising from his drug use have been mitigated, but the security concerns arising from the falsification of his October 2004 security clearance application have not been mitigated. Clearance has been denied.
Case number: 14-00964.h1
Financial
The applicant failed to file his state tax returns for nine consecutive years and failed to file his federal tax returns for six consecutive years. It also did not address a $1,178 judgment from 2009 for failure to pay a credit card account, and a $2,686 collection account that had been long overdue. Clearance has been denied.
Case number: 13-00625.h1
Foreign influence
The applicant is 29 years old and was born in Afghanistan. He left Afghanistan in March 2005, and became a United States citizen in 2012. His father, mother, brother, four sisters, and three brothers-in-law are all citizens and residents of Afghanistan. The applicant has continued contact with his immediate family, including daily contact with his mother, and traveled to Afghanistan to visit his family in 2009 and 2011. Want to help foreigners? Discounts are not shown. Clearance has been denied.
For federal contractors, the process typically begins with a letter from the Defense Security Service’s Personnel Security Management Office for Industry (PSMO-I). (see below). The process is similar for civilian government employees and military personnel.
Another letter is sent to your company’s Facility Security Officer (FSO), the appropriate federal department/agency security office or the appropriate military security command unit/office. (see below).
After consultation with DC Security Clearance Consultants, a successful reapply for a security clearance determination for a federal contractor in the National Industrial Security Program (NISP) will ultimately result in the following affirmative eligibility determination as per the Department of Defense Joint Personnel Assignment. entered into the system. . (JPAS). JPAS is the DoD’s official repository of security clearance qualifications. (see below). The process is the same for civilian government employees and military personnel.
Contact DC Security Clearance Consultants for your reapplication process. We know what to reduce and how to reduce it. We have all the answers and understand every step of the reapplying process. We have walked clients through the DOHA re-application process and all the way through, if the NEC.
How to Recover Your Security Clearance
As part of the security team here at TAD PGS, some aspects of security clearance have become like second nature to me. But I understand that this may not be the case for many of you, so this posting contains some frequently asked questions and answers to questions that my security colleagues and I have received from time to time. These questions are really just scratching the surface.
1. What is required to obtain a security clearance?
You must be in a position or be offered a position that requires clearance. You must also be a US citizen. The employer will have you complete an eQIP (SF86) and you will need to be fingerprinted. Once those documents are complete, your employer will submit your paperwork to the government for processing.
2. If I obtained a clearance with another agency, can I not use it in the DoD world?
Reciprocity is when you have a clearance with one agency and it is accepted by another agency. All agencies have different systems. If this situation applies to you, you need to inform your employer which agency currently holds your clearance and they can submit an application through DoD. DoD will decide on the relationship.
3. How long will it take to get my clearance?
It really depends on everyone. It depends on the level of clearance you have applied for and your background (ie number of jobs, number of places of residence, etc.). It is estimated that the average waiting time for final approval is 4-6 months. However, some will be granted quickly and some will take longer. It’s really on a case-by-case basis.
4. How long is my clearance good?
Top Secret clearance requires a reinvestigation every 5 years and a Secret every 10 years, but you must continuously work in a position that requires your clearance. If your position changes and does not require clearance, it can be reinstated if the gap in service is less than 24 months. Your clearance can be reinstated by the DoD once your position is needed again.
5. What is the difference between “active”, “current”, and “expired” clearance?
• An “active” clearance is one in which the candidate is currently eligible for access to classified information.
• A “current” or revocable clearance is one in which a candidate has been declared eligible for access but is not currently authorized without revalidation. A candidate has two years to remain in “current” status before it becomes “expired” status.
• An “expired” clearance is one that has not been used in more than two years and cannot be renewed without a new investigation. Once sponsored, the candidate must resubmit the clearance application and undergo a new investigation to gain access. Individuals with expired clearances may not be considered for jobs that require an active or current clearance.
Dealing with Revoked Security Clearance
If someone has a problem with their security clearance, either initially applying for one or having a problem with the government trying to suspend or revoke it, they are often Not sure enough to know what the real problems are. With their security clearance. Department of Defense (DOD) Directive 5220.6 deals with all matters related to the Defense Industrial Personnel Security Clearance Review Program.
Anyone can request a search engine for this guide and you should be able to find it. Make sure that you are dealing with the directive that was made effective for any decision in which a statement of reasons was issued on or after 1 September 2006. and effective in any case after September 1, 2006.
You can also refer to my previous blog post if you have any concerns regarding the preparation of your initial application for security clearance and if you have some information or issues in your background that give you pause for concern.
Why Security Clearance Can Be Revoked: Statement of Reasons
The way the situation usually arises is that the government issues a Statement of Reason (SOR) expressing its intention to revoke the security clearance. That document is provided to the facility security officer who in turn gives it to the person whose clearance is being revoked. When you receive an SOR it is very important to act immediately. You will have due process rights, one of which is to request a hearing before an Administrative Law Judge (ALJ). We always recommend that security clearance applicants respond to the SOR in a timely manner and always request a hearing before an ALJ. In our estimation, this is the single best opportunity to obtain or retain security clearance in light of the receipt of SOR.
DOD Directive 5220.6 describes all policies, responsibilities, and procedures of the Defense Industrial Personnel Security Clearance Review Program. As directed, it applies to the Department of Defense, military departments, and defense agencies/DOD components. This directive is used by the government to determine whether granting or continuing a security clearance to an applicant is clearly consistent with the national interest.
Restoring your clearance: Rebuttal statements and hearing requests
More importantly, the directive sets forth the procedures when DOD seeks to suspend or revoke a security clearance. The procedure described in the directive allows an applicant for a security clearance to submit a rebuttal statement or, alternatively, request a hearing before an administrative law judge. The guidelines state that a hearing before an administrative law judge is an adversarial proceeding and that both the parties, the government and the petitioner, have the responsibility to present their respective cases. The government is represented by an attorney known as Department Counsel. The applicant has the option to appear in person, be represented by a lawyer selected and paid for by the applicant, or be represented by a personal representative.
How Hearing Works
A hearing before an administrative law judge is held in an area within 150 miles of the applicant’s place of residence or employment. The directive further states that an administrative law judge does not have the authority to issue a subpoena and, consequently, the appearance of witnesses and production of documents is purely voluntary. According to the directive, parties have broad discretion in presenting evidence in their cases and the Federal Rules of Evidence are used only as a guide. All witnesses are subject to cross-examination by the other party.
Importantly, and where an applicant who is concerned about his security clearance will have the most information that is contained in the directive, judicial guidelines for determining eligibility for access to classified information are provided. . This directive sets several guidelines ranging from personal conduct to financial considerations, drug involvement, alcoholism, and criminal conduct among other guidelines. If the government intends to cancel the security clearance, it will lay down guidelines by the directive. It is important to note that there is a narrowing of the conditions that an applicant can use to demonstrate why he or she deserves a security clearance that would allow access to classified material.
Appeals
Appealing the denial or revocation of clearance
An individual whose security clearance has been denied or revoked by the Department of Defense (DoD) Consolidated Adjudication Facility (CAF) or any adjudication facility has the opportunity to appeal the decision. The process for doing so differs between military and civilian personnel and contractors. Executive Order 12968, “Access to Classified Information,” sets forth procedures for military and civilian personnel. Executive Order 10865, “Protection of Classified Information Within Industry,” outlines the process for contractors. In each case, talking to your agency or company’s security office is the best way to find out what specific practices apply to you.
For contractor personnel, the denial, revocation and appeal process is the responsibility of the Defense Office of Hearings and Appeals (DOHA). The individual may request a hearing before a DOHA Administrative Judge to provide additional, relevant information and will have the opportunity to cross-examine witnesses. After the hearing is over, the administrative judge will make a decision. If the decision is to deny or revoke a security clearance, the individual has the opportunity to appeal the decision to the Appeals Board. The Appeals Board will review the case file and render its decision. This decision is final and ends the appeal process.
At the end of the appeals process, an individual whose security clearance has been denied or revoked may not reapply for security clearance for one year from the date of the final decision. If access to classified information is required, the individual may reapply for a security clearance through their employment activity. The individual is responsible for providing documentation that the circumstances or conditions that resulted in the denial or cancellation have been rectified or sufficiently mitigated to warrant reconsideration. The Department of Defense (DoD) Consolidated Adjudications Facility (CAF) or Adjudication Facility may accept or reject the reapplication.
Appealing non-clearance decision/decisions
In addition to national security determinations, applicants and personnel may be subject to credentialing and/or suitability or fitness determinations. The policies and regulations under which these determinations are made vary depending on the type of position as will be followed in the event of an adverse decision. If an appeal process is available, a notice of the action and requirements for appealing shall be provided by the adjudicating agency. Questions about which process applies or how the process works should be directed to your agency.
For example, for positions in the Competitive Service, positions in the Exempt Service that noncompetitively convert to the Competitive Service, or for career appointments in the Senior Executive Service, when Title 5, Code of Federal Regulations Appropriate action is taken accordingly. Section 731, the individual may appeal the decision of the Merit Systems Protection Board. The deciding agency will provide written notice of the decision and will include requirements for filing an appeal.
Resolving revocation of security clearance
Although no one has a right to a security clearance, to revoke a clearance, the government must follow the requirements of good practice for revoking and denying security clearance. A security clearance allows a party to access classified information.
Security Clearance Legislation
Executive Order 12968 establishes minimum due process requirements for federal employees. If clearance is denied or revoked, a detailed written explanation of the reason for the decision must be provided. It requires that any documents on which the decision is based be disclosed on request. It details the employee’s right to counsel and a reasonable opportunity to respond. It requires that written notice of refusal or cancellation be served. It also requires that the employee be given an opportunity to appear before an adjudicating authority other than the investigating agency.
Executive Order 10865 describes due process requirements for federal contractors. It provides notice of the cause of action, an opportunity to respond, the right to be heard and the right to be represented by counsel.
Understanding Security Clearance Terms
Understanding why a clearance is denied or revoked requires understanding the guidelines that must be followed. Some guidelines are as follows:
- A U.S. Loyalty Contractor or employee cannot be affiliated with a terrorist group, or advocate the overthrow of the U.S. government.
- Foreign influence. A contractor or employee may not have an association with a foreign national or an interest in any foreign business that could potentially prejudge the person’s interests against the United States.
- Foreign Preference. A contractor or employee may not act in a manner that favors a foreign country over the United States, accepts service in a foreign military, or accepts a scholarship or pension from a foreign country.
- Sexual Conduct: A contractor or employee may not engage in criminal sexual conduct.
- Personal behavior. A contractor or employee may not refuse to cooperate with a clearance investigation.
- Financial considerations. Unexplained wealth, involvement in white-collar crimes and failure to meet financial obligations are all grounds for denial or cancellation.
- Alcohol consumption. The contractor or employee must not engage in alcohol-related incidents, both on and off the job.
- Drug use. A contractor or employee may not use illegal drugs.
- Emotional, mental or personality disorders. Any condition that may indicate an error in judgment is grounds for denial or rescission.
- Criminal conduct. The contractor or employee may not engage in criminal conduct.
While not an exhaustive list, the above are some of the most serious activities the government will look at when making a denial or revocation decision. The defense of these investigations is very important to overcome them. The best way to protect your business is to avoid these activities. However, there are times when your employees can hide their records of such activities. Then your business will suffer.
An overview of the security clearance appeals process for military, civilian and government contractors
Generally, security clearance concerns arise at the investigation stage, after the applicant submits the initial SF-86 or during the interview. There are several reasons why a security issue might arise. For example, a security concern would arise if an applicant did not disclose an arrest on the SF-86, which was later revealed by an investigator. As another example, debt or other financial difficulties may trigger a security concern. Once security concerns arise, they will be reviewed to determine whether or not the applicant should have access to classified information.
Security Concerns Assessment – DoDCAF
After a security concern arises, a security review will be conducted by an agency adjudicator. The Department of Defense Central Clearance Facility (DoDCAF) serves as the agency adjudicator for most government contractors and civilian and military employees. DoDCAF is located at Fort Meade, Maryland, and is charged with processing security clearances for most federal employees and government contractors. DoDCAF will then review the case to determine whether a security clearance will be granted or, alternatively, whether a Letter of Intent (LOI) should be issued to deny. Security clearances handled by other federal agencies, such as the CIA, NSA, DIA, NGA, etc. follow a similar path at this point.
What is a Statement of Reasons (SOR)?
When a security clearance is not granted, DoDCAF (or other agency decision makers) will issue a Statement of Reasons (SOR). Before formally denying or revoking a clearance, procedural guidelines require the federal agency to provide the applicant with a written Statement of Reason (SOR). The SOR is the key document that must be reviewed and analyzed when trying to prevent your security clearance from being denied or revoked.
Briefly, the SOR will describe the basis for a potential denial or revocation and list the specific safety concern(s) at issue as listed in the adjudication guidelines. Under each specific safety concern, the SOR will list the specific allegations of disqualifying events or circumstances extracted from your investigation file.
The SOR will be accompanied by a letter, which explains the procedure for formally responding to the SOR. In short, you will need to submit a detailed written response to the SOR under oath or affirmation, specifically admitting or denying each allegation listed.
The National Security Law Firm practices security clearance law and represents both federal employees (military and civilian employees) and government contractors throughout the security clearance appeals process. It is important to keep in mind that the appeals process depends on whether the individual is employed by a federal agency or as a government contractor.
Clearance Appeal Process – Military and Civilian Employees
For civilian and military employees, DoD Manual 5200.02, Procedures for the DoD Personnel Security Program, and Executive Order 12968, “Access to Classified Information,” prescribe the clearance appeal process.
Upon receiving an SOR from DoDCAF, the first step for most federal employees is to notify DoDCAF of their desire to respond to the SOR. The federal employee will also want to decide at this stage whether they would like to obtain a copy of their investigation file and other documents that were relied upon to support the adverse determination. We strongly recommend that you request a copy of these records so that you can fully respond to the SOR and that you can properly correct any errors in your file.
Although the time frame may vary by agency, most employees have 30 days to respond to an SOR. Upon receipt of the employee’s response to the SOR, the agency adjudicator (in most cases DoDCAF) will review the response and either:
(1) grant clearance;
(2) request further information from the applicant;
or
(3) refuse clearance.
If the applicant is denied clearance at this time, he or she will be sent a Letter of Denial (LOD), which will state the final reasons for the negative decision and the applicant’s right to appeal the determination. Will advise. The federal employee will then either request a written decision (not an opportunity for a hearing) from the Personal Security Appeals Board (PSAB) or request a hearing before an Administrative Judge (AJ) from the Defense Office of Hearings and Appeals (DOHA)…
If the applicant requests a personal appearance before the AJ, the applicant shall submit his written response and additional documentary evidence to the DOHA AJ. The applicant will then also attend a hearing at which he will be entitled to present evidence and examine witnesses. At the hearing, the applicant may be represented by legal counsel. The applicant will be expected to make an oral presentation and answer any questions asked by his representative or the AJ. After the hearing, the AJ will recommend a decision to the PSAB for consideration. A complete transcript of the hearing along with the AJ’s recommendation will be sent to the PSAB for a final decision. The PSAB will then vote on whether to deny or grant the security clearance.
In the event that the PSAB refuses to issue a clearance, the appeal process shall be closed. The applicant must wait at least one year from the date of the PSAB’s decision before requesting reconsideration.
Clearance Appeal Process – Government Contractors
For government contractors, the clearance process is governed by DoD Directive 5220.6, Defense Industrial Security Clearance Review Program, and Executive Order 10865, “Protection of Classified Information Within Industry.” Typically, the government contractor will be provided with a letter of instructions from DOHA, to which the SOR will be attached, and will be asked to answer five questions. An SOR is issued to the applicant following a legal merit review by the DOHA Departmental Counsel (DoD OGC). Your response to the SOR must be received by DOHA within 20 days of the date you acknowledge receipt.
Upon receipt of the contractor’s response,
DOHA may withdraw the SOR and issue a security clearance. However, most cases will instead proceed to a personal appearance or written appeal stage.
If a written appeal (ie, no hearing is requested by the applicant or Department Counsel), the Department Counsel will send the relevant materials file (form) to the Contractor. The form contains evidence against the contractor that must be rebutted in writing. The applicant has 30 days to respond to the form. The case will then be decided by the AJ based on the written submissions of both the parties.
If the contractor chooses to appear in person before the AJ,
they will have an opportunity to present evidence and examine witnesses. After the hearing, the AJ will review the evidence and then issue a final decision. The hearing will be held in the metropolitan area where the applicant lives or works. The applicant may be represented by legal counsel. The counsel for the department represents the government and will present evidence and arguments in support of the allegations made in the SOR. The applicant may bring any witness or written evidence he wishes the AJ to consider. After the hearing is complete, the AJ will issue a written decision.
The AJ’s written decision is based on findings of fact and conclusions of law and must be supported by the record. The standard that the AJ applies is “clearly consistent with the interests of the national security standard.” Under this standard, as set forth by the U.S. Supreme Court, a security clearance determination must err on the side of denial.
In the event of an adverse determination – whether in response to the written record or following a hearing, the contractor (as well as Department counsel) may appeal the adverse determination to the DOHA Appeals Board. On appeal, the DOHA Appeals Board will defer to the AJ’s credibility determination.