The "Foreign Influence" criterion under the "Adjudicative Guidelines for Determining Eligibility for Access to Classified Information" affects many security clearance applicants, particularly those who are naturalized U.S. citizens or whose parents immigrated to the U.S. Others who marry (or reside with) a foreign national, who have foreign financial/business interests, or who maintain close and continuing contact with foreigners are also affected. There are two other related criteria—Foreign Preference and Outside Activities—that sometimes affect these same applicants.*

Security Concern

The Adjudicative Guidelines states that "Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness." Simply stated, alcohol abusers are more likely than others to engage in careless or impulsive behavior that can create an increased risk of unauthorized disclosure of classified information.

REBUTTING AND APPEALING SECURITY CLEARANCE DENIALS (November 2008)

The Defense Industrial Security Clearance Office (DISCO) is a Central Adjudication Facility (CAF) that is part of the Defense Security Service. DISCO processes about 150,000 personnel security clearances each year for DoD contractors and contractors of 23 other federal agencies. These are referred to as industrial cases. DISCO favorably adjudicates about 75% of these cases after the investigations are conducted by the Office of Personnel Management. If DISCO cannot affirmatively find that it is clearly consistent with the national interest to grant or continue a personnel security clearance, the case is referred to the Defense Office of Hearings and Appeals (DOHA) for further review. DOHA has the option to request further investigation, send out written interrogatories, interview the applicant, and/or require the applicant to undergo a psychological evaluation. Of the approximately 35,000 to 40,000 cases received each year, DOHA favorably adjudicates about 96% and directs DISCO to grant or continue the clearances. DOHA makes preliminary decisions to deny or revoke clearances on the remaining 4%. When this occurs, DOHA sends the applicant a “Statement of Reasons” detailing the specific reasons why it intends to deny or revoke the clearance and advises the applicant of their right to submit a written rebuttal and their right to a hearing.

The Department of Energy (DOE) has its own Office of Hearing and Appeals that makes initial decisions and handles appeals on industrial and non-industrial security clearances. DOE’s procedures are similar to DOHA’s.

The Statement of Reasons (SOR)

About 10% of applicants who receive an SOR drop out of the process by not responding to the SOR; their clearances are denied or revoked without further action. For an applicant who chooses to rebut the SOR, the written rebuttal must be received at DOHA within 20 days from the date the applicant receives the SOR. This rebuttal can be made with or without a request for a hearing. Applicants may request an extension of time to file a rebuttal to the SOR, but they must have a good reason. The rebuttal must include a detailed written answer that admits or denies each allegation in the SOR and provides information that rebuts, explains, or mitigates each allegation.

Upon receipt of the SOR rebuttal, DOHA sends the applicant a File Of Relevant Materials (FORM). The applicant has 30 days from receipt of the FORM to submit a written response to the FORM, setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate. If a review of the rebuttal to the SOR and/or response to the FORM determines that allegations are unfounded, or evidence is insufficient for further processing, DOHA withdraws the SOR and DISCO grants or continues the clearance. Otherwise, the case is assigned to a DOHA Administrative Judge (AJ) who will consider the case with or without a hearing.

About 88% of case decisions based only on a review of the written record by a DOHA AJ result in clearance denial or revocation. About 60% of case decisions based on a hearing result in clearance denial or revocation. About 70% of applicants who respond to an SOR request hearings.

The Hearing

Either the applicant or a DOHA attorney can request a hearing. If a hearing is requested, the applicant will be notified at least 15 days in advance of the time and place of the hearing. The hearing will be held at a location within a major city near the applicant’s place of employment or residence. The AJ may require a pre-hearing conference. The applicant must appear at the hearing in person with or without an attorney or a personal representative. Hearings are generally open, except when the applicant requests that it be closed, or when the AJ determines that there is good cause for keeping the proceedings closed.

As far in advance as practical, the DOHA attorney and the applicant may request information from the opposing party regarding witnesses or other evidence to support or rebut, explain, extenuate or mitigate information contained in the SOR that may be presented at the hearing. At the hearing witnesses and other evidence are subject to cross examination, and a verbatim transcript is made of the hearing.

After the hearing, the AJ makes a written decision that includes not only the clearance decision but also all findings of fact, policies, and conclusions regarding the allegations in the SOR. This written decision is sent to both the applicant and the DOHA attorney. DOHA then directs DISCO to make appropriate notification to the applicant’s employer. If the clearance is denied or revoked, the applicant is notified of appeal procedures.

The Appeal

Either the applicant or the DOHA attorney can appeal the DOHA AJ’s decision. About 20% to 30% of these decisions are appealed. This must be done in writing within 15 days of the AJ’s decision. Appeals go before a DOHA Appeal Board of three AJs. A written appeal brief must be received by the Appeal Board within 45 days from the date of the AJ’s original decision. If the DOHA attorney appeals, a copy of the brief is sent to the applicant, and the applicant has 20 days to submit a written reply brief, if any. No new evidence is received or considered by the Appeal Board; therefore, most appeals claim that the evidence did not support the decision and/or insufficient weight was given to applicant’s mitigating evidence. Except for rare circumstances where there were procedural errors, an Appeal Board’s decision is final. The Appeal Board issues a written decision addressing the material issues raised on appeal, and a copy is sent to both parties. The Appeal Board can affirm, reverse, or remand a case to the original AJ with instructions for further review.

In the vast majority of appeals, the DOHA Appeal Board affirms clearance denials. An applicant whose clearance has been finally denied or revoked is barred from reapplying for a clearance for a period of one year from the date of the initial adverse clearance decision. Industrial and non-industrial applicants do not have a right to contest security clearance denials or revocations in the courts. Documents entitled,  “Prehearing Guidance” and “Appeal Instructions” are posted at the DOHA website.

Industrial Versus Non-Industrial Clearances

There are differences between the adjudication of most industrial cases and the adjudication of cases involving military/federal civilian applicants and cases involving Special Access Programs. In such non-industrial cases, applicants who receive an SOR (also known as a Letter of Intent or a Letter of Instructions—LOI) do not have a right to a hearing. The applicant’s written rebuttal to the SOR is reviewed by a supervisory adjudicator who makes the clearance decision. If the applicant’s clearance is denied or revoked, the applicant then has a right to appeal. In making the appeal, the applicant has the choice of submitting a written appeal with supporting documents directly to their Personnel Security Appeal Board (PSAB) or requesting a personal appearance before a DOHA AJ. Procedures and timelines for SOR rebuttals and appeals differ slightly for each CAF/PSAB. Applicants who choose to appear before a DOHA AJ to present their appeal are permitted to explain their case (with or without an attorney or personal representative) and submit supporting documents, but it is not a hearing. There are no witnesses, other than the applicant, and there is no cross examination. The DOHA AJ evaluates all the information presented and makes a written clearance recommendation to the applicant’s PSAB. PSABs are composed of three members and decisions are made by a majority vote. PSABs notify applicants of their final decision and include reasons for their decision.

At first glance it may seem that applicants in industrial cases have greater procedural protections and administrative remedies than in non-industrial cases, because of their right to a hearing. But that hearing is an adversarial process in which the government is represented by an attorney experienced in security clearance matters, and the applicant may not be able to afford equal representation. When industrial applicants appeal their cases, they can not introduce new evidence; whereas, applicants in non-industrial cases can submit new evidence, and the PSAB can take an entirely fresh look at the case and make what they believe to be the appropriate decision without regard for the lower-level decision. Lastly, in industrial cases, either party (the applicant or the DOHA attorney) can appeal the decision of a DOHA AJ, but in non-industrial cases only the applicant has the right to appeal to a PSAB

CRIMINAL CONDUCT AND SECURITY CLEARANCES (January 2009)

RELEVANCE OF CRIMINAL CONDUCT TO SECURITY CLEARANCES

Affected Persons

The “Criminal Conduct” criterion in the Adjudicative Guidelines For Determining Eligibility for Access To Classified Information affects security clearance applicants who have been arrested, charged or convicted of a single serious crime or multiple lesser offenses. Others who have intentionally provided false information on their clearance application forms, who have had illegal drug involvement, or who have been involved in previously unreported crime can also be affected. Over the years Criminal Conduct has consistently been among the 4 most common reasons for security clearance denial.

Security Concern

The Adjudicative Guidelines states that “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.” Because of the high rate of adult recidivism, this issue is perhaps one of the best predictors of future compliance with rules for handling classified information.

Criminal Offenses

Criminal offenses are divided into three categories—infractions, misdemeanors, and felonies. For security clearance purposes, an infraction is a crime for which the maximum possible penalty is a fine; a misdemeanor is a crime for which the maximum possible penalty is incarceration for up to 1 year; and a felony is a crime for which the maximum possible penalty is incarceration for more than 1 year.

The “Questionnaire for National Security Positions” (Standard Form 86—SF86) asks if an applicant has ever been charged with a felony offense or any offense involving alcohol, drugs, firearms or explosives. It also asks if an applicant: 1) has been arrested within the past 7 years (10 years for Top Secret clearance), 2) has been subject to court martial or other military disciplinary proceedings, or 3) is currently pending some court action for a criminal charge or offense.

The distinction between “arrested” and “charged” can be important for anyone arrested more than 7 or 10 years ago for a felony or any offense involving alcohol, drugs, firearms or explosives, but not formally charged with one of these offenses. Applicants often mistake the charge or offense listed on the police report as a charge that must be listed on the SF86. Since a charge can be changed or dropped between the time of an arrest and the defendant’s initial court appearance, the best definition of a “charge” for SF86 purposes is any accusation of criminal conduct as it is initially presented at court.

For SF86 purposes an arrest is any situation in which a law enforcement officer restricts a person’s freedom, then either takes them into custody or releases them on their promise to appear in court (i.e. issues a citation). Under this definition a traffic offense resulting in a citation is technically an arrest; however, minor traffic citations resulting in a fine of $300 or less can be omitted from the SF86, unless they involved drugs or alcohol.

There are certain circumstances where a person can be taken into custody, but not technically arrested. This typically occurs when a person is initially arrested for being drunk in public, placed in a jail cell until sober, then released without any conditions or further action. In their report police record this as a detention not amounting to an arrest (or some similar wording). It is strongly recommended that such incidents be disclosed in the appropriate comment section of the SF86.

In the SF86 there is an exception that permits withholding information about certain expunged drug convictions. This exception only applies to drug convictions and expungement orders in a federal court. Consequently, clearance applicants must list all applicable dismissed charges and convictions even if the record was sealed, expunged, or otherwise stricken from a state or local court record.

Compliance with Bond Amendment

The Bond Amendment (50 U.S.C. 435b, Section 3002), which became law in January 2008, prohibits all federal agencies from granting or renewing eligibility for access to Sensitive Compartmented Information, Special Access Programs, and Restricted Data for anyone who has been: 1) convicted, sentenced, and incarcerated for a term exceeding 1 year for any crime or 2) discharged/dismissed from the Armed Forces under dishonorable conditions. As a practical matter, due to the inability to always predict future access to Restricted Data, these Bond Amendment restrictions may be applied to the adjudication of all levels of security clearances. In many agencies senior adjudicators have the authority to waive these Bond Amendment restrictions. When an adjudicator would have arrived at a favorable decision but for a Bond Amendment disqualification, the adjudicator may grant a meritorious waiver if deemed appropriate.

Criminal Aspects of Other Adjudicative Criteria

A knowing and willful false statement made in connection with a security clearance application is a felony. Normally this offense is considered under the Adjudicative Guidelines’ “Personal Conduct” criterion, which specifically addresses this issue. However adjudicators can cite both Personal Conduct and Criminal Conduct for this single criminal act. Likewise, an adjudicator may cite Criminal Conduct in addition to Alcohol Consumption, Drug Involvement, or Sexual Behavior when there has been a single felony or multiple misdemeanor offenses at least one of which involved alcohol, drugs, or sexual conduct.

EFFECT OF CRIMINAL CONDUCT ON SECURITY CLEARANCES

Evaluating Criminal Conduct

Although, Criminal Conduct is always a security/suitability concern; it becomes a potentially disqualifying condition under the Adjudicative Guidelines when it involves:

“(a)   A single serious crime (felony) or multiple lesser offenses (infractions or misdemeanors).

“(b)   Discharge or dismissal from the Armed Forces under dishonorable conditions.

“(c)   Allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.

“(d) Individual is currently on parole or probation.

“(e)   Violation of parole or probation, or failure to complete a court-mandated rehabilitation program.

“(f)    Convicted in any court of the United States of a crime, sentenced to imprisonment for a term exceeding 1 year, and incarcerated as a result of that sentence for not less than 1 year.”

Mitigating Security Concerns

The following conditions may mitigate Criminal Conduct concerns:

Multiple Lesser Offenses Not Serious 

Multiple minor traffic infractions without allegations of other criminal conduct would not be an issue under the Criminal Conduct criterion. However, they can be considered under the Personal Conduct criterion along with any other dishonest, unreliable, or rule-breaking behavior.

Alleged Crime Not Committed

Security clearance adjudications do not use the same standard of evidence used in criminal proceedings. Once the government has substantial evidence that the applicant committed a crime, the burden of proof shifts to the applicant to present evidence to refute the allegation. To propound this mitigating condition there must be proof that the applicant did not commit the alleged offense. Being accused but not arrest, arrested but not prosecuted, or prosecuted but found not guilty, many not be sufficient proof of innocence, if there was insufficient evidence to meet the criminal standard to prove guilt or a technical/procedural error was made that prevented a successful criminal prosecution.

Successful Rehabilitation 

Evidence of rehabilitation can simply be “passage of time” without recurrence of criminal activity or any other indicators of continued antisocial, irresponsible or violent behavior. There is no general rule for how much time must elapse since the last criminal offense for full mitigation solely through “passage of time.” The amount of time depends on age when the crime occurred, how long criminal activity continued, the number and seriousness of the crimes, and the circumstances surrounding the crimes. Positive evidence of rehabilitation can significantly reduce the amount of time necessary to fully mitigate criminal conduct. Such evidence includes, “remorse or restitution, job training or higher education, good employment record, or constructive community involvement.” Also taken into consideration are other positive changes in lifestyle, associates, and social responsibility. These factors can positively influence an adjudicator’s determination that an applicant’s past conduct is not likely to recur or no longer cast any doubt on the applicant’s judgment, reliability or trustworthiness. Knowingly and willfully providing false information for a security clearance investigation and “currently being on parole or probation” are very difficult to mitigated, because there as been too little time to show rehabilitation

Isolated Incident or Unique Circumstance

Many people commit a single non-violent criminal act due to an impulsive decision or an uncharacteristic lapse of judgment. Such crimes are sometimes prompted by a transitory situation. The presence of extenuating circumstances and/or a record of otherwise consistent reliability, trustworthiness, and good judgment over an significant period of time can mitigate suitability/security concerns by showing criminal conduct is not likely to recur, even though the crime may have occurred recently.

Pressured or Coerced

A single serious crime can be fully mitigated, if an applicant committed the crime due to threat of harm to himself or his family or other similar forms of duress. It is unlikely that this mitigating condition would be applicable to multiple criminal acts over a period of time, such as during a period of gang membership, unless it is propounded in combination with “successful rehabilitation.” It would also not be applicable when the threat of harm or duress occurred as reprisal for some breech of promise or misconduct by the applicant.

Interim Clearances

Interim clearances can be declined when any potentially disqualifying issue exists. Significant criminal conduct on the SF86 can often be mitigated by information collected during a security clearance investigation. But interim clearances require issue mitigation before the investigation is completed. The SF86 asks about criminal conduct, but it does not ask for information that might mitigate the related security or suitability concerns. Applicants may include mitigating information in their SF86 (or its electronic equivalent known as eQIP) by using the “Continuation Space” at the end of the paper version or by using the “Comment Section” following each question on the eQIP version. Including any applicable mitigating information in this manner can only help an applicant’s chances of being granted an interim clearance.

DRUG INVOLVEMENT AND SECURITY CLEARANCES (March 2009)

AFFECTED PERSONS

A 2003 national survey of drug use showed that about 60% of Americans between 19 and 30 years of age had used an illegal drug and about 20% had used a prescription drug for nonmedical reasons some time in their lives. The “Drug Involvement” criterion under the “Adjudicative Guidelines For Determining Eligibility for Access To Classified Information” affects the clearance eligibility of many applicants by making any illegal use of drugs a potentially disqualifying condition. It also makes cultivation, manufacture, purchase, sale, distribution; and simple possession of illegal drugs or drug paraphernalia potentially disqualifying conditions.

SECURITY CONCERN

The Adjudicative Guidelines states that drug abuse “. . . can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.”  Drug abuse also raises concerns about an individual’s susceptibility to blackmail and the possible presence of mental health issues. Drug use can cause financial problems, sometimes leading to other criminal activity to support a drug habit.

Like many other issues, the security concern related to past drug abuse focuses more on applicants’ demonstrated willingness and ability to abstain from future drug involvement than on their past conduct. Experimentation with drugs, particularly marijuana, is fairly common behavior during a person’s formative years. Such experimentation is usually benign and does not result in chronic or long-term use for most people.

EVALUATING DRUG INVOLVEMENT

When does drug abuse become a security concern? Under federal law (Section 3002 of 50 U.S.C. 435b) a current user of illegal drugs can not be granted a security clearance. Using illegal drugs a few months prior to submitting a clearance application form can be considered current use. Past drug abuse is evaluated based on:

·         Which drugs were used.

·         Frequency of drug use.

·         Recency of drug use.

·         Circumstances of drug use.

·         Effects of drug use (i.e. mental health, employment, finances, arrests).

MITIGATING SECURITY CONCERNS

Illegal drug involvement can be mitigated if it is shown that the applicant is no longer involved with drugs and it is highly probable that the applicant will not become involved with drugs in the future. Determining whether an applicant is likely to have future drug involvement is primarily based on the type, frequency, and recency of past drug involvement. The following is extracted from the Defense Personnel Security Research Center’s 2007 Adjudicative Desk Reference used by many government adjudicators:

The following examples of time periods [of abstinence] that might mitigate various types and frequencies of past drug use . . . are provided for consideration in the context of all the other information available about the person. They are not a formula to be applied mechanically in all cases.

At Least Six Months: The only drug use was experimental or occasional use of marijuana, and there are no aggravating circumstances.

At Least One Year: Marijuana was used frequently, or any other drug was used experimentally, and there are no aggravating circumstances.

At Least Two Years: Marijuana was used regularly, or any other drug was used occasionally, and there are no aggravating circumstances. There was no evidence of psychological or physical dependence at the time subject was using drugs, and subject has demonstrated a stable lifestyle with satisfactory employment record since then.

At Least Three Years: Any drug other than marijuana was used frequently or regularly, or marijuana was used regularly with signs of psychological dependence. There are no other aggravating circumstances. Subject has maintained a stable lifestyle, satisfactory employment record, and a completely clean record in all other issue areas during the past three years.

At Least Five Years: A minor involvement in drug trafficking for profit or failure to complete a drug treatment program. Subject has maintained a stable lifestyle, satisfactory employment record, and a completely clean record in all other issue areas during the past five years.

The Adjudicative Desk Reference uses the following definitions for levels of drug use:

Experimental Use: Initial use for a maximum of six times, or more intensive use for a maximum of one month.

Occasional Use: Once a month or less.

Frequent Use: Once a week or less, but more than once a month.

Regular or Habitual Use: More than once a week.

Aggravating factors that could require longer periods of abstinence to mitigate drug abuse include: drug use while holding a security clearance, solitary drug use, growing or making one’s own drugs, relapse after completion of a drug treatment program, and other misconduct related to illegal drugs.

Factors that support the minimum period of abstinence include: disassociation from drug-using associates, drug use occurred between late teens and late twenties, changing or avoiding the environment where drugs were used, successful completion of a drug treatment program with a favorable prognosis, and a signed “statement of intent” not to illegally use drugs in the future and agreeing to an automatic revocation of clearance for any violation.

INTERIM CLEARANCES

In order to receive an interim security clearance, potentially disqualifying information disclosed by an applicant in the Questionnaire for National Security Positions (Standard Form 86—SF86) must be mitigated by other information included in the form. This is because interim clearance decisions are made before the security clearance investigation is completed. Some drug-related disqualifying conditions can be mitigated by merely listing the type, frequency, circumstances, and dates of drug use as required by the SF86. Applicants are also permitted to include additional mitigating information in the “Continuation Space” at the end of the paper version of the SF86 or in the “Comment Section” following appropriate question on the electronic (eQIP) version. Including additional mitigating information, as well as a “statement of intent,” is often a determining factor in the granting of an interim clearance.

When you accept a federal job offer that requires a security clearance, you will be required to submit a “Questionnaire for National Security Positions,” also known as a Standard Form 86 (SF86).  Although the paper version of the SF86 is still in use, most applicants will use the electronic web-based version of the SF86 called e-QIP (Electronic Questionnaires for Investigations Processing).

For most positions you will have to wait until you are granted either an interim security clearance or a final security clearance before you are actually hired and report for duty. That can be a matter of a few days or several months depending on the clearance required. Your agency’s security office will review your SF86 for completeness and provide a copy to their Human Resources (HR) office where your SF86 will be reviewed to insure that you meet the minimum employment suitability * criteria for the position. If the HR review is favorable, the security office will forward your SF86 to the organization that will conduct your background investigation. At this point your agency’s security office can grant or decline to grant an interim Secret clearance, if required. A determination for an interim Top Secret clearance can not be made until certain preliminary checks are completed. These checks usually take about 20 to 40 days. When the investigation is completed, it is usually forwarded to the agency’s HR office for employment suitability adjudication. If the HR adjudication is favorable, the investigation is then adjudicated for a security clearance. These two adjudications are usually separate processes by separate offices using different criteria.

There are 3 stages at which the offer of employment you accepted can be withdrawn by the agency—the initial HR review, the HR adjudication, and the security clearance adjudication. If you are rejected because you failed to meet employment suitability criteria, your right to 1) be informed of the specific reasons, 2) rebut the reasons, and 3) appeal a final adverse decision to the Merit System Protection Board (MSPB) will depend on the type of the position you were offered. Federal agencies are required to use employment suitability standards and procedures for all appointments to “competitive service” positions. The U.S. Office of Personnel Management recommends, but does not require, that these same standards and procedures be used for appointments to “non-competitive” positions, such as “excepted service” and temporary positions.

Most Intelligence Community (IC) agency jobs and some other federal jobs that require security clearances are “excepted service” positions. Consequently if an agency withdraws a job offer for an excepted service position due to employment suitability reasons, they generally only inform you that you were found to be unsuitable for the position without providing any specific reasons. Applicants sometimes confuse this with being denied a security clearance, because the job offer was withdrawn after they submitted an application for a security clearance.

Title 5 Code of Federal Regulations Part 731 (5 CFR 731) governs federal employment suitability standards and procedures. Section 731.202 of 5 CFR 73 covers specific suitability criteria. The “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information” governs federal security clearance criteria. Employment suitability and security clearance criteria are very similar, but a few differences exist.

One major difference is that suitability criteria can be influenced by the nature of the position for which you are applying, whereas security criteria is unaffected by the nature of the position. This difference can result a situation where you are rejected due to suitability criteria, but where you would have been granted a security clearance had you not been eliminated from the hiring process before your security clearance adjudication was completed. In this situation it is possible you can later be hired as federal contractor employee and be granted a security clearance at the same level required for the federal job. For example, the Drug Enforcement Agency (DEA) considers applicants unsuitable for employment, if they have ever illegally used any drug. The only exception to this is for self-disclosed “limited youthful and experimental use of marijuana.” The FBI has a similar policy that limits drug involvement to experimental marijuana use more than 3 years ago and experimental use of other drugs more than 10 years ago. Both the DEA’s and the FBI’s suitability criteria for drug involvement are significantly more restrictive than security criteria currently being applied by most federal agencies.

If your offer of employment from a federal agency is withdrawn after you submit an SF86 and the agency notifies you that you were found unsuitable for the position without providing any other explanation, the position was an excepted service or temporary position not covered under 5 CFR 731. This adverse suitability determination may not have any affect on your future security clearance eligibility. It may not have any affect on your suitability for employment at a different federal agency.

If a federal agency intends to withdraw their offer of employment for a competitive service position because suitability criteria, they must notify you in writing and state the specific reasons they believe you are unsuitable. This notice must also explain your right to receive the information used to make this decision against you and your right to make a written rebuttal.  If the agency makes a final adverse suitability decision, they must notify you of that decision in writing and inform you of your right to appeal the decision to the MSPB.

If your case receives a favorable employment suitability determination, your background investigation will be adjudicated for a security clearance. All security clearance adjudications are required to provide essentially the same “due process rights,” regardless of whether the appointment is for a competitive service, excepted service, or temporary position. If there is a preliminary decision to deny a clearance, you will be sent a “Statement of Reasons” (SOR) or a “Letter of Intent” (LOI) detailing specific reasons why granting you a clearance may not be clearly consistent with the interests of national security. The SOR or LOI will include instructions for submitting a rebuttal and in some cases requesting a hearing. If there is a final decision to deny a clearance, you will be sent a “Letter of Denial” that contains instructions for submitting an appeal.

* For excepted service positions the word “fitness” may be used instead of “suitability,” but has essentially the same meaning.

A Brief History of the U.S. Personnel Security Program (May 2009)

The roots of the U.S. Personnel Security Program can be traced back to the Civil Service Act of 1883 that required applicants for federal employment to possess the requisite character, reputation, trustworthiness, and fitness for employment. In 1912 the LaFollette Act established protection for federal employees from being fired from their jobs for arbitrary reasons and imposed a standard of “just cause” that would promote the “efficiency of the service,” a concept later applied to security clearance determinations. The Hatch Act of 1939 added a prohibition against anyone employed by the government from being a member of any organization that advocates overthrowing the U.S. Government.

Executive Order 8781 (1941) required fingerprinting of all federal employee and directed the FBI to establish a system to check criminal records. In 1942 War Service Regulation II denied federal employment to anyone whose loyalty was in “reasonable doubt.” The Atomic Energy Act of 1946 mandated a security program for the Atomic Energy Commission and directed the FBI to investigate applicants’ character, associations, and loyalty. Executive Order 9835 (1947) established the Federal Employee Loyalty Program, providing standards and procedures for investigations and creating Loyalty Review Boards. The Civil Service Commission (CSC) was charged with conducting investigations for federal “competitive service” positions.

In 1948 by joint agreement of the service secretaries, the Department of Defense (DoD) unified the military security program and implemented standards and procedures similar to those put into effect for civilians under E.O. 9835. In 1956 DoD Directive 5210.9 established the same loyalty standard for the military as required for civilians. DoD Regulation 5200.2 created detailed uniform security clearance policies and standards for military, civilian, and contractor personnel.  

Executive Order 10450 (1953) superseded E.O. 9835 and required investigations of federal employees to determine their reliability, trustworthiness, good conduct and character, and loyalty to the United States. It required that employment be “clearly consistent with the interest of national security.” The E.O. required a full field investigation for sensitive positions and a minimum of a National Agency Check with Inquiries (NACI) for other positions. In 1954 the Atomic Energy Act was amended to authorize the Department of Energy (DoE) and the Nuclear Regulatory Commission (NRC) Safeguards and Security programs, which created a structure for the protection of “Restricted Data” separate from national security clearances. Executive Order 10865 (1960) established standards governing access to classified information for federal contractor employees. In 1965 CSC redefined “sensitive” positions into “critical-sensitive” and “non-critical sensitive” positions and removed the requirement for a full-field investigation for non-critical sensitive positions.

The Defense Investigative Service (DIS) was created in 1972 to consolidate DoD Personnel Security Investigations (PSI) previously conducted by US Army, Navy and Air Force. Soon after DIS became operational it had 48,000 pending cases (twice its optimum workload), many of which were overdue. From 1974 to 1985 DIS’s workload increased over 58% with 17.5% fewer personnel (about 850) than the military had to do the job prior to 1972.

In 1981 a General Accounting Office report (GGD-81-105) estimated that delays for initial security clearances cost the Government $920 million a year in lost productivity. That same year DIS imposed a moratorium on conducting Periodic Reinvestigations (PR) for clearances involving access to Sensitive Compartmented Information (SCI) in order to deal with a large backlog of requests for initial investigations. In 1983 it resumed these PRs and also began conducting PRs for collateral Top Secret clearances. The 1985 “Stillwell Commission” report recommendations resulted in $25 million of additional funding for DIS with emphasis on Periodic Reinvestigations (PR) for Top Secret clearances due to large the backlog of these cases. The Commission further recommended PRs for Secret clearances. In 1989 DIS began conducting period reinvestigations for Secret clearances and receives 40,000 new cases in this category and 46,000 the following year. DIS was allowed to increase its investigative staff and reached high point of about 3,100 personnel, including 2,400 field investigators by 1991. However, in anticipation of a reduction in security clearance requests because of the “peace dividend,” a hiring freeze is imposed on DIS later that year. A subsequent 48% reduction-in-force occurred over the following 3 years and left DIS with an investigative staff of about 1,600 personnel, including about 1250 field investigators.

In 1991 National Security Directive 63 established the Single Scope Background Investigation (SSBI) standard for access to Top Secret defense information, Secret and Top Secret Restricted Data, and Sensitive Compartmented Information (SCI). The SSBI significantly increased the amount of work required for investigations for Top Secret clearances. A revision of Director of Central Intelligence Directive 1/14 in 1992 added neighborhood investigations to PRs for Top Secret clearances. The 1994 “Joint Security Commission” report recommended standardization, computerization, and changes in investigative scope for security clearances. In response to the 1994 amendment to the National Security Act of 1947, Executive Order 12986 (1995) established the Security Policy Board to develop a common set of investigative and adjudicative standards, improve clearance reciprocity, strengthen appeal procedures, and improve non-discrimination.

In 1996 DIS was forced to implement a quota system for periodic reinvestigations restricting the number of requests Defense agencies were authorized to submit. The quota system remained in place until 1999 and significantly increased the backlog of these cases. The Office of Personnel Management (OPM), which had been created in 1978 to partially replace the CSC, privatized their Office of Federal Investigations (about 770 employees) resulting in the creation of the US Investigations Services (USIS) in 1996 under an Employee Stock Ownership Plan. USIS was awarded a 3-year non-competitive contract to conduct investigations for OPM. The 1997 report of “The Commission on Protecting and Reducing Government Secrecy” recommended a full range of changes to the security clearance process to make it more efficient and to address transparency and due process concerns.

In 1998 the new investigative standards required by E.O. 12968 were issued. Implementation of the new investigative standards resulted in “backlog” of 400,000 PRs, most of which were investigations required by the new standards but not yet submitted to the Defense Security Service—DSS (formerly known as the Defense Investigative Service). In 2000 DoD began shifting a large portion of security clearance investigations from DSS to OPM. In 2004 DoD began submitting all security clearance investigations to OPM, and DSS investigators began conducting cases under OPM control. According to General Accountability Office report 04-344, DSS and OPM had a combined investigative staff of 4,200 government and contractor personnel. OPM estimated that about 8,000 were needed. The average turnaround time for an SSBI by OPM hit a high of about 396 days. Later that year the President approved an optional Phased Periodic Reinvestigation (PPR) for Top Secret clearances. The PPR provided for a less expensive investigation of narrower scope than the standard PR for Top Secret clearances.

In December 2004 Title III of the Intelligence Reform and Terrorism Prevention Act (IRTPA) required that by December 2009 90% of clearance determinations be made within 60 days. In response to another IRTPA requirement, Executive Order 13381 designated the Office of Management and Budget (OMB) as the single office within the executive branch responsible for policy and oversight of the personnel security program. OMB further designated OPM as the primary investigative agency for conducting personnel security investigations. In February 2005 DSS transferred about 1,600 personnel to OPM, increasing OPM’s investigative staff to a combined total of 7,819 employees and contractors. By 2008 OPM investigative staff reached a high point of 9,421 personnel.

In February 2008 the President issued a memorandum on “Security Clearances” directing that a proposal be submitted to him by April 2008 to modernize, standardize, and integrate comprehensive credentialing, security clearance, and suitability processes. The Joint Security and Suitability Reform Team (JSSRT) submitted its “Initial Report” as directed by the memorandum and submitted a progress report in December 2008. A new 3-tier investigative standard was approved for suitability and security clearance investigations with planned full implementation by late summer 2010. Executive Order 13467 was issued to establish a governance structure and a legal basis for the major changes planned for the federal personnel security program. It directed that the existing disparate processes for employment suitability, public trust, and security clearances be aligned into a unified coherent structure. In January 2009 Executive Order 13488 established the concept of reciprocity of fitness and employment suitability determinations for federal “excepted service” and contractor positions and a requirement for periodic reinvestigations for “public trust” positions.

OPM reduced the number of its initial investigations that were over 180 days old from 98,000 in October 2006 to 1,802 in August 2008, and average timeliness for 90% of all clearance determinations improved from 265 days in 2005 to 82 days in the 4^th quarter of Fiscal Year 2008. However, it is widely acknowledged that the current security clearance system is incapable of attaining the December 2009 IRTPA average timeliness requirement of 60 days for 90% of clearance determinations. The new clearance system being developed by the JSSRT with its new investigative standards, eApplication, Automated Record Checks, eAdjudication, and Continuous Evaluation may be able to meet this requirement, but probably not until sometime in late 2010.

New Federal Investigative Standards (June 2009)

·         Suitability for Government employment;

·         Eligibility for physical and/or logical access to federally controlled facilities and computer systems;

·         Eligibility for access to classified information;

·         Eligible to hold a sensitive position; and

·         Fitness to perform work for or on behalf of the Government as a contractor employee

According to the JSSRT report, the new standards reduce “the types of initial investigations from fifteen to three and the types of reinvestigations from five to two.” The new standards use three levels of position sensitivity, which are designated as:

Tier 1 – low-risk positions, non-sensitive positions, and positions involving physical and/or logical access to government facilities and computer systems.

Tier 2 – moderate-risk positions, non-critical sensitive positions, and positions requiring access to Confidential, Secret, and Department of Energy (DOE) “L” level information.

Tier 3 – high-risk positions, critical sensitive positions, special sensitive positions, and positions requiring access to Top Secret, DOE “Q,” and Sensitive Compartmented Information.

Initial Investigations for each position sensitive level will consist of:

Tier 1

1.       eApplication.

2.       Corroboration of date and place of birth through appropriate documentation by a trusted information provider.

3.       Submission of fingerprints and a check of appropriate databases for prior federal investigations.

4.       Verification of citizenship or legal resident status of foreign born applicants.

5.       Local law enforcement agency checks at all places of employment, residence, or school attendance of six months or more during the past 5 years. Check of the appropriate criminal justice agency for details and disposition of any identified arrests.

6.       Automated Records Checks (ARC) for information regarding the applicant’s criminal history, involvement in terrorism, validity of Social Security number, education and employment history, employment conduct, military discharge, and Selective Service registration, as appropriate.

7.       Expandable Focused Investigation (EFI) to develop and resolve identified security/suitability issues.

Tier 2

1.       Tier 1 requirements.

2.       Additional ARC for information regarding the applicant’s financial history, foreign associates, business interests, and other foreign connections.

Tier 3

1.       Tier 2 requirements.

2.       Enhanced Subject Interview (ESI)—a comprehensive interview of the applicant to review his or her background to explore any potentially disqualifying conditions and mitigating factors relevant to adjudicative standards.

3.       Review of employment records and interview of supervisors at all place of employment during the past 3 years.

4.       Local law enforcement agency check at a current residence of less than 6 months.

5.       Additional ARC for information regarding the applicant’s civil court records, large currency transactions, possible unexplained affluence, and foreign associations/preference.

6.       ARC for information regarding the applicant’s spouse’s or cohabitant’s criminal history and to verify the U.S. citizenship or legal status of any foreign-born immediate family members.

Reinvestigations/Continuous Evaluation

Tier 1 – No reinvestigation is required, except for the reissuance of a credential (such as a Personal Identification Verification card required under HSPD-12), in which case new fingerprint cards will be submitted for a criminal history check.

Tier 2 – Individuals who require eligibility for access to classified information at the Tier 2 level will be reinvestigated on an aperiodic basis or as required by security-related events, but not less than once every five years. The reinvestigation will consist of a new eApplication, Tier 2 ARC, and an EFI to develop and resolve identified security/suitability issues, as appropriate.

Tier 3 – Individuals who require eligibility for access to classified information at the Tier 3 level will be reinvestigated annually or as required by security-related events. The reinvestigation will consist of a new eApplication, Tier 3 ARC, and an EFI to develop and resolve identified suitability/security issues, as appropriate. At least once every five years an ESI will be conduct as part of a reinvestigation.

Comments

The new investigative standards are the most significant change to the U.S. Personnel Security Program since Executive Order 10450 of 1953. The new standard for Tier 3 eliminates much of the field investigation previously conducted for Single Scope Background Investigations (SSBI) required for access to Top Secret, “Q,” and Sensitive Compartmented Information. Eliminated from the field investigation are interviews of neighbors (covering the last 3 years), educational references (last 3 years), employment references (prior years 4 -7), a second employment reference (last 7 years), former spouses, and social references (total of 4), as well as the review of employment records (prior years 4 -7), residential records (last 3 years), and education records (last 3 years).

Aside from the ESI, the only field investigation required for Tier 3 will be an employment record review and an interview of a supervisor at each place of employment during the last 3 years. This may be a meaningful adjunct to the eApplication, ARC, and ESI for applicants who are over 24 years old, but for many who are 18 to 23 it may be far less meaningful than interviews of their friends and/or schoolmates.

At the Tier 3 level the new standards rely heavily on the ability of the ARC and the new eApplication to surface as much or more issue information than the traditional investigative sources that are being eliminated. However, the eApplication is only described in general terms, and there is no indication if there will be only one version of the eApplication or if there will be multiple versions based on Standard Forms 85, 85P, and 86. Multiple versions of the eApplication could cause problems when people try to move laterally within the same tier. The ARC is also described in general terms, and the specific government and commercial databases that will be used are not identified.

The ability of the new standards to reduce investigative turnaround time will depend greatly on the threshold at which a security/suitability issue triggers an EFI. An EFI involves additional investigative actions, beyond the normal investigative components for each tier, to develop and resolve identified security/suitability issues. Because not all security/suitability issues are equal, and because the new ARC may produce issue indicators that are unlike the indicators produced by traditional investigative sources, new methods of measuring these issues and issue indicators will be needed to establish appropriate EFI thresholds that are consistent from agency to agency. This will be especially important in Tier 3 investigations. The SSBI is a relatively comprehensive investigation that requires expansion (now called EFI) in a small percentage of cases where major security/suitability issues are present. To obtain the same level of issue resolution provided by a standard SSBI, a much larger percentage of Tier 3 investigations will require an EFI.  Without consistent EFI thresholds, barriers to clearance reciprocity will be created.

Moderate-risk and high-risk positions are defined as public trust positions. The absence of any requirement for reinvestigations of individuals in public trust positions does not comply with Executive Order 13488 issued in January 2009. This executive order made reinvestigations mandatory for public trust positions and made OPM responsible for establishing their standards. No doubt the same officials at OPM who were involved in drafting the executive order were also involved in drafting the memorandum on the new investigative standards. Because of Executive Order 13488, the memorandum establishing the new investigative standards became in need of revision 5 weeks after it was issued.

The “Use of Information Technology Systems” criterion (Guideline M) of the “Adjudicative Guidelines For Determining Eligibility for Access To Classified Information” can potentially affect the clearance eligibility of many applicants. Over the past few years Administrative Judges (AJ) at the Defense Office of Hearings and Appeals (DOHA) have reviewed numerous cases involving Guideline M issues. Most of these cases have involved only 1 of the 8 potentially disqualifying conditions”—the “unauthorized use of a government or other information technology system.” These cases have almost always involved the viewing of pornographic material on a government or company-owned computer in violation of their employers’ rules. Most of the other cases also involved workplace misconduct such as: sending inappropriate email, unauthorized viewing of other peoples’ email, intentionally deleting files from a server, and preventing access to computer programs.

In 2001 “the Ninth U.S. Circuit Court affirmed a trial court’s decision that about 75 million users were infringing copyright by exchanging music files via a peer-to-peer network.”* Because of this, perhaps the greatest Guideline M concern to many clearance applicants is the potentially disqualifying condition of “introduction, removal, or duplication of hardware, firmware, software, or media to or from any information technology system without authorization, when prohibited by rules, procedures, guidelines or regulations.” This condition can apply to cases where applicants violate copyright laws using a computer. Late last year the “Questionnaire for National Security Positions” (Standard Form 86) was changed, and 3 questions specifically addressing “Use of Information Technology Systems” (questions 27a, b, & c) were added to the form. This change could significantly increase the number of cases involving Guideline M issues.

SECURITY CONCERN

Guideline M uses broad language in defining the security concern regarding the use of information technology systems:

Noncompliance with rules, procedures, guidelines or regulations pertaining to information technology systems may raise security concerns about an individual's reliability and trustworthiness, calling into question the willingness or ability to properly protect sensitive systems, networks, and information. . . .

Guideline M goes on to list 8 specific examples of potentially disqualifying conditions that could result in a clearance denial or revocation. Three of these potentially disqualifying conditions duplicate disqualifying conditions under Guideline K (Handling Protected Information). The remaining 5 are:

(a)   illegal or unauthorized entry into any information technology system or component thereof;

(b)   illegal or unauthorized modification, destruction, manipulation or denial of access to information, software, firmware, or hardware in an information technology system;

(c)   use of any information technology system to gain unauthorized access to another system or to a compartmented area within the same system;

(e)   unauthorized use of a government or other information technology system;

(f)    introduction, removal, or duplication of hardware, firmware, software, or media to or from any information technology system without authorization, when prohibited by rules, procedures, guidelines or regulations.

EVALUATION OF IT SYSTEMS MISUSE

The following factors are evaluated in determining security significance of IT system misuse:

• Knowing and willful rule violation.

• Frequency and extent of rule violation.

• Amount of potential or actual harm.

• Intent of the conduct and degree of malice.

For applicants who have duplicated copyrighted software and other media on the internet without authorization, a November 2008 DOHA decision (ISCR Case No. 03-17291) is instructive. In this case potentially disqualifying conditions (a), (c), and (f) under Guideline M were alleged. The AJ determined that the applicant only entered or accessed systems available to the public when he downloaded (duplication) programs and files without paying for them (authorization). The only unresolved matter in the remaining Guideline M allegation (f) was whether the applicant’s actions were “prohibited by rules, procedures, guidelines or regulations.”

From 1993 to 2007 the applicant downloaded between $750 and $1,000 worth of files or programs without paying for them. He did it for private financial gain in that he avoided payment for the downloaded materials, but he never sold or profited from anything he downloaded. On at least one occasion “he downloaded a serial number for a multimedia program and used it unlock the program and view a movie trailer. The serial number would have cost $29.99 if purchased, but applicant was able to download it without paying for it.”  The AJ considered the applicant’s conduct in light of:

• Sony Corporation of America v. Universal City Studios (US Supreme Court, 464 U.S. 417 [1984])

• AHR—Audio Home Recording Act of 1992 (17 U.S.C. 1008)

• NET—No Electronic Theft Act of 1997 (17 U.S.C. 506)

• DMC—Digital Millennium Copyright Act of 1999 (17 U.S.C. 1201)

In Sony Corporation of America v. Universal City Studios the Supreme Court ruled that recording movies for personal, noncommercial use is not a violation of The Copyright Act (17 U.S.C. 106, et seq).  The AHR extended that exception to recording music for personal, noncommercial use.

The NET makes electronic copyright infringement a crime when it is committed for the purpose of private financial gain by the reproduction or distribution, during any 180-day period, of copyrighted works having a total retail value of more than $1,000 or by the distribution of a work being prepared for commercial distribution by making it available on a computer network accessible to members of the public knowing that the work was intended for commercial distribution. The applicant did not violate the NET because the total value of the items he downloaded was not more than $1,000.

However, the DMC provides that, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” By downloading the serial number for a multimedia program and using it unlock the program, the applicant circumvented the access control to a protected work and violated the DMC. Based on this, the AJ decided that the applicant’s conduct was “prohibited by rules, procedures, guidelines or regulations.” The AJ found no applicable mitigating condition under Guideline M and therefore ruled against the applicant

For most people who use their own computer to download publicly accessible copyrighted files from the internet without paying for them or to participate in file sharing on a peer-to-peer network, their activity doesn’t amount to criminal conduct, which is probably necessary to support a security clearance denial or revocation under disqualifying condition (f) of Guideline M. Only when a person downloads and/or shares more than $1,000 worth of copyrighted files in any 180-day period without paying for them or tries to circumvent a security measure used to protect copyrighted material, does he risk an adverse security clearance determination.

MITIGATION OF SECURITY CONCERNS

Conditions that could mitigate security concerns under Guideline M include:

(a)   so much time has elapsed since the behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur or does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(b)   the misuse was minor and done only in the interest of organizational efficiency and effectiveness, such as letting another person use one's password or computer when no other timely alternative was readily available;

(c)   the conduct was unintentional or inadvertent and was followed by a prompt, good-faith effort to correct the situation and by notification of supervisor.

As with most other security/suitability issues, when an applicant’s past misconduct was intentional and serious, the most common and successful mitigating condition is (a) above. This is because the basic purpose of the security clearance process is to attempt to predict future conduct based on past and current conduct, and rehabilitation as evidenced by passage of time without recurrence is one of the strongest predictors of future conduct.

* Quoted from ISCR Case No. 03-17291, referring to A&M Records, Inc. v. Napster, Inc.

Dual Citizenship And Security Clearances (August 2009)

Some people who are U.S. citizens at birth believe they are dual citizens simply because they were born in a foreign country. Some naturalized U.S. citizens believe that when they took the oath of allegiance to the U.S. it effectively renounced their former citizenship. Either situation may or may not be true, depending on the foreign country involved. Foreign citizenship laws are varied and complicated. Security clearance applicants who are uncertain about dual citizenship should research the matter before answering the citizenship question on the Questionnaire for National Security Positions (SF86). A good place to start is the Office of Personnel Management’s March 2001 “Citizenship Laws of the World.”

RELEVANCE TO SECURITY

The “Foreign Preference” criterion (Guideline C) of the December 2005  “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information” makes the “exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen” a potentially disqualifying condition for a security clearance. Guideline C also states:

When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.

In 1998 only 11 Defense Office of Hearings and Appeals (DOHA) cases involved dual citizenship. In 2008 it increased to 272 cases. This change occurred primarily because of the issuance of the “Money Memorandum” in August 2000 that stated:

The security concerns underlying this guideline are that the possession and use of a foreign passport in preference to a U.S. passport raises doubt as to whether the person’s allegiance to the United States is paramount and it could also facilitate foreign travel unverifiable by the United States. Therefore consistent application of the guideline requires that any [DoD] clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government.

Guideline C does not specifically indicate that the mere existence of dual citizenship is a potentially disqualifying condition. It uses the words “exercise” and “acts,” indicating there must be conduct that demonstrates a preference for a foreign country. However, Guideline C lists mitigating conditions for dual citizenship unrelated to conduct, thereby implying that dual citizenship by itself is a potential security concern. Merely having dual citizenship will not automatically result in a security clearance denial, nor will simply renouncing foreign citizenship necessarily result in a security clearance approval.  Generally people who acquired dual citizenship at birth and have done nothing to obtain recognition of the foreign citizenship will encounter little or no problem in obtaining a clearance unless there are other security issues in their case.

EVALUATING DUAL CITIZENSHIP

The foreign country where citizenship is held is not relevant. DOHA decisions regarding applicants who were unwilling to renounce Iranian or Chinese citizenship were the same as for those who were unwilling to renounce Canadian or British citizenship. When an immigrant becomes a naturalized U.S. citizen and takes the oath of allegiance in which they “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen,” they rarely take the additional step of insuring that their former citizenship has been effectively renounced. Some even apply to have their foreign passport renewed and use it to travel to their native country. This creates serious problems when applying for a security clearance. The following are examples of potentially disqualifying conditions, extracted from the Adjudicative Guidelines, related to dual citizenship:

1. Possession of a current foreign passport;

2. Accepting educational, medical, retirement, social welfare, or other such benefits from a foreign country;

3. Residence in a foreign country to meet citizenship requirements;

4. Using foreign citizenship to protect financial or business interests in another country;

5. Seeking or holding political office in a foreign country;

6. Voting in a foreign election;

7. Action to acquire or obtain recognition of a foreign citizenship by an American citizen.

MITIGATING SECURITY CONCERNS

The following are examples of mitigating conditions, extracted from Adjudicative Guidelines, related to dual citizenship:

1. Dual citizenship is based solely on parents' citizenship or birth in a foreign country;

2. The individual has expressed a willingness to renounce dual citizenship;

3. Exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen or when the individual was a minor;

4. Use of a foreign passport is approved by the cognizant security authority;

5. The passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated;

6. The vote in a foreign election was encouraged by the U.S. Government.

Guideline C does not contain any specific mitigating conditions similar to those in other Guidelines where potentially disqualifying conduct can be mitigated based on voluntariness, motivation, frequency, recency, and unusual circumstances. However, the “General Criteria” described in “The Adjudicative Process” paragraph of the Adjudicative Guidelines applies to the adjudication of all cases and requires that these factors be considered.

Some countries prohibit their citizens from entering or leaving their country using a foreign passport. Some make it practically impossible to renounce citizenship. Personal safety concerns while traveling in certain areas of the world sometimes makes it unwise to use a U.S. passport. The disqualifying condition involving the past “exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen” may possibly be mitigated using the General Criteria, but only if the applicant expresses a willingness to renounce their foreign citizenship and surrenders their foreign passport.  

Security clearance adjudications posted at the DOHA website are replete with cases where the granting or denying of a security clearance hinged on an applicant’s decision to renounce foreign citizenship and surrender their foreign passport. However, because of potential counterintelligence implications, it is not advisable to contact a foreign embassy or consulate for this purpose without first obtaining guidance from the U.S. Government. In an SF86 and during a security interview, it is only necessary to express a willingness to renounce foreign citizenship. Additionally the applicant should surrender their foreign passport to the security officer processing their clearance application and include information about this action in their SF86.

INTERIM CLEARANCES

Without proper mitigation dual citizenship, like other security issues, can create a presumption that a disqualifying conditions exists and result in having an interim clearance declined. Stating in the SF86 a willingness to renounce foreign citizenship and surrendering a foreign passport to the appropriate security officer can significantly mitigate security concerns. Explaining in the SF86 the reason dual citizenship exists and the reasons any potentially disqualifying conduct may have occurred will also improve an individual’s chance of obtaining an interim clearance.

INTELLIGENCE COMMUNITY SECURITY CLEARANCES

In October 2008 the Office of the Director of National Intelligence issued Intelligence Community Policy Guidance (ICPG) Number 704.2. Appendix A to ICPG 704.2 is identified as the Adjudicative Guidelines as approved by the President and issued by the Assistant for National Security Affairs on 29 December 2005. However, Guideline C at Appendix A is significantly different than Guideline C in the December 2005 Adjudicative Guidelines. It states:

Being a U.S. citizen and a citizen of another country is not prohibited or disqualifying absent a showing of heightened risks related to national security. The same is true for the exercise of any right, privilege or obligation of foreign citizenship or action to acquire or obtain recognition of foreign citizenship by a U.S. citizen.

All but one of the potentially disqualifying conditions related to dual citizenship in this version of Guideline C are completely different than those listed above. There has been no indication of which version of Guideline C the Intelligence Community agencies are using. It is possible that Guideline C in ICPG 704.2 was the result of an administrative error.

Falsification of Security Clearance Applications (September 2009)

 “Failure to provide truthful and candid answers during the security clearance process” is one of the most common reasons for the denial or revocation of security clearances. Of the approximately 1,300 security clearance cases decided by Administrative Judges of the Defense Office of Hearings and Appeals (DOHA) during fiscal year 2008, Personal Conduct was the second most frequently cited issue and appeared in 497 (38%) of the cases. It was almost always cited due to applicants concealing information related to one of the other issues, such as criminal conduct, drug involvement, and alcohol consumption.

Unfortunately in many falsification cases, the information the applicant tried to conceal would not have resulted in a clearance denial. But the act of providing false information on the Questionnaire for National Security Positions (Standard Form 86—SF86) was often fatal to the cases. The issue of falsification is covered under the “Personal Conduct” criterion of the “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.”

SECURITY CONCERN

If an applicant can not be trusted to provide full and truthful answers to questions on the SF86 or to government security officials, it is extremely difficult to trust the applicant with classified national security information. Most conduct-related security issues can be mitigated by rehabilitation as evidenced by passage of time without recurrence of the conduct. However, concealing relevant unfavorable information or claiming unearned qualifications or achievements on an SF86 indicates a current unwillingness to comply with security requirements and casts serious doubts on an applicant’s honesty, trustworthiness, and judgment.

POTENTIALLY DISQUALIFYING CONDITIONS

Extract from the Adjudicative Guidelines

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities

(b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative

In the current version of the Adjudicative Guidelines the word, “material” was removed from the phrase, “falsification of relevant and material facts.” Since all questions on the SF86 are considered relevant, any deliberate omission, concealment, or falsification, including information that would not have made any difference in the adjudication, may be cause for clearance denial.

In recent years the misrepresentation of educational qualifications has gained increased importance in security clearance investigations and adjudication. Previously educational degrees were merely verified. Today the bona fides of questionable post-secondary schools are being scrutinized.

MITIGATING FACTORS

Many applicants treat the SF86 as just another bureaucratic form and fill it out quickly without attention to accuracy or detail. Others view it as being comparable to an employment application form where a certain amount of “huffing and puffing,” as well as selective presenting and withholding of information are normal. Some honestly misunderstand the wording and the intent of the questions. Lawyers, work associates, and military recruiters occasionally give applicants bad advice about what must be disclose and what may be withheld on an SF86.

Mitigating alleged falsification is possible, if the applicant did not deliberately provide false information on an SF86. Mistake of fact, faulty memory, and misunderstanding can be plausible reasons for unintentionally providing false information. When applicants are given an opportunity to correct false information but repeat their false assertions, mitigation becomes impossible even if they later tell the truth. “Prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts” are critical to successfully mitigating this issue.

Adjudicators consider the “whole person” when assessing applicants’ intent to falsify and their subsequent actions to correct false information. Mature, highly educated individuals are less likely than young military recruits to convince an adjudicator that they misunderstood questions, inadvertently made mistakes, or incorrectly relied on the advice of other people. When falsification is admittedly deliberate but the applicant promptly attempts to correct it before being confronted, adjudicators can sometimes make a favorable decision if the falsification was an isolated, uncharacteristic lapse in judgment by an otherwise responsible, honest individual.

The Personal Subject Interview (October 2009)

The Personal Subject Interview (PRSI) is a required part of all investigations and periodic reinvestigations for Top Secret clearances. PRSIs are conducted by federal investigators (Special Agents) and federal contract investigators (Special Investigators). Interview procedures vary slightly from agency to agency, but most agencies follow the same basic format and cover the same topical areas.

The PRSI should take about an hour for the average person who has completed the clearance application form (Standard Form 86—SF86) accurately and only has a few residences, jobs, and schools listed on the form. If you have had extensive foreign travel, foreign contacts, or problems involving such things as alcohol, drugs, finances, or criminal conduct, the interview could take much longer. Usually there is only one investigator, but occasionally a second investigator may be present. An applicant has the right to have a personal representative or attorney present during the interview, but this is rarely necessary or beneficial. You should:

• Arrive promptly for the interview and silence your cell phone.

• Don’t bring any weapons with you into the interview room, even if you are authorized to have them.

• Bring a government-issued photo ID, such as a driver’s license or military ID card.

• Bring a personal address book or anything that contains contact information on your associates and family members.

• Bring a copy of your SF86.

• If your case involves some security issues, bring any relevant documents with you to the interview, such as birth/citizenship certificates, passports, financial documents, court records, etc.

• Ask the investigator for a business card.

After identifying himself with his badge and credentials and examining your identification, the investigator usually begins by explaining the purpose of the interview, the provisions of the Privacy Act, and the criminal penalties for false statements. You will also be reminded that your participation in the interview is voluntary. It’s your choice to answer some, all, or none of the questions. However, refusal to answer any legitimate question can result in a security clearance denial. Only when the investigator asks a question that is obviously beyond the scope of a security investigation, can you refuse to answer and not risk a clearance denial. Such questions usually relate to religious beliefs, opinions regarding racial matters, political or union affiliations, and lawful sexual conduct that would not make you susceptible to blackmail. Office of Personnel Management (OPM) federal investigators have the applicant answer questions under oath or affirmation. OPM contract investigators have the applicant make an unsworn declaration. Both procedures carry equal weight under the law.

The investigator will essentially cover every question on your SF86 to confirm the accuracy and completeness of the information you provided, plus some questions that are not on the form. Questions on the SF86 cover most of the security issues listed in the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information. But a few of the 13 guidelines are either not addressed or only partially addressed in the SF86. In one manner or another, questions covering all 13 guidelines will be asked during the interview.

Like the SF86, interview questions are based on certain time periods. Some questions pertain to your entire life. Others pertain only to the last 7 or 10 years (or back to your 16^th or 18^th birthday depending on your age). For the purpose of the interview questions, the seven- or ten-year time frame is based on the date you completed the SF86. If you completed the SF86 on November 1, 2009, ten years includes everything between November 1, 1999 and the date of your interview. Under certain circumstances investigators are authorized to ask about relevant information regardless of how long ago it occurred.

The investigator will ask for details about any potential security issue information listed on your SF86. The investigator will also try to discover unfavorable information that is not listed on the SF86. Answer the investigator’s questions as precisely, truthfully and completely. Many investigators follow the sequence of the questions on the SF86, so you can follow along on your copy of the form. As each question is asked volunteer any information that mitigates, clarifies, explains, extenuates or otherwise decreases the possible negative effect of unfavorable information you listed on your SF86. It’s the investigator’s responsibility to ask questions that will elicit the details regarding anything that might be considered a security issue. These questions will cover who, what, when, where, how, why, and who else knows. Additionally investigators are trained to determine and report the following factors:

(1)     nature, extent, and seriousness of the conduct;

(2)     circumstances surrounding the conduct, to include knowledgeable participation;

(3)     frequency and recency of the conduct;

(4)     individual's age and maturity at the time of the conduct;

(5)     extent to which participation is voluntary;

(6)     presence or absence of rehabilitation and other permanent behavioral changes;

(7)     motivation for the conduct;

(8)     potential for pressure, coercion, exploitation, or duress; and

(9)     likelihood of continuation or recurrence.

These factors are taken from the Adjudicative Guidelines and known as the “general criteria.” However, each of the 13 guidelines has it own set of mitigating conditions, many of which are not specifically cover by the general criteria. Unfortunately OPM investigators receive little training on the unique mitigating conditions listed under each of the 13 guidelines. Therefore, you should be prepared to volunteer mitigating information that is not elicited by the investigator’s questions.

If the investigator fails to ask you about any unfavorable information listed on your SF86, mention the information yourself. If you don’t, it will have to be addressed during a follow-up interview and will delay your clearance. If you have been involved in serious misconduct, had significant financial problems, or have extensive foreign connections, it would be wise to make a written explanation of the situation(s), including all applicable mitigating conditions. Give a copy of the written explanation to the investigator.

You may be asked to sign a specific release for information concerning financial matters, mental health counseling, and/or substance abuse counseling. Refusal to sign a release, even if you know that the information being sought does not exist, can result in having your clearance denied.

If you and the investigator prepare properly for your PRSI, the interview should be completed in one session. Occasionally at some point after the PRSI, there may be a need for a follow-up contact with the investigator. This usually occurs when you were unable to provide some information at the time, the need for a written release arises later, some minor matter requires further clarification, or you later remember some pertinent information.  If a major discrepancy or security issue surfaces through one of the other components of the security investigation, it usually necessitates a separate “Special Interview” to resolve the matter.

Sexual Behavior and Security Clearances (December 2009)

Many people have concerns about how their past sexual indiscretions may negatively affect their security clearance eligibility. Most sexual misconduct is either not a potentially disqualifying condition for a security clearance or can be fully mitigated by “passage of time without recurrence” and the absence of any susceptibility to blackmail or coercion.

Of the approximately 1160 cases decided by administrative judges at Defense Office of Hearings and Appeals (DOHA) in 2009 only 36 cited “Sexual Behavior” as a security/suitability issue. Almost all of these 36 cases involved criminal conduct, and about half involved criminal convictions for sexual offenses. Only 2 cases cited extramarital affairs, and both of these cases involved current sexual relationships about which their spouses were unaware. Involvement with prostitutes was cited in 4 cases, 5 cases cited possession of child pornography, and 15 cases cited sexual acts with children. The remaining cases involved voyeurism, exhibitionism, and compulsive, self-destructive viewing of pornography. Eight-nine percent of the cases citing sexual behavior resulted in clearance denials. Many of these issues did not surface during standard investigations for security clearances, but surfaced during polygraph examinations required as part of the processing for access eligibility for Sensitive Compartment Information (SCI).

Guideline D: Sexual Behavior of the December 2005 Adjudicative Guidelines for Determining Eligibility for Access to Classified Information states:

The Concern: Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in the Guideline may be raised solely on the basis of the sexual orientation of the individual.

Conditions that could raise a security concern and may be disqualifying include:

(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 person is unable to stop or that may be symptomatic of a personality disorder;

(c)   sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress;

(d)   sexual behavior of a public nature and/or that which reflects lack of discretion or judgment.

Conditions that could mitigate security concerns include:

(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 good 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.

Prior to 1992 the Adjudicative Guidelines made “acts of sexual misconduct or perversion indicative of moral turpitude, poor judgment, or lack of regard for the laws of society” disqualifying. This included sodomy, heterosexual promiscuity, wife-swapping, transvestism, transsexualism, and aberrant, deviant, or bizarre sexual conduct.

Much has changed since 1992. When assessing sexual behavior, adjudicators must first consider whether the behavior is relevant to a security clearance determination before they consider whether it is true. Today sexual behavior is relevant when it is compulsive, self-destructive, high-risk, or criminal; creates susceptibility to coercion; occurs in public; or shows poor judgment. If at least one of these factors is not present, sodomy, promiscuity, adultery, group sex, cyber-sex, swinging, pornography, sadism, masochism, fetishism, bondage and degradation, homosexuality, bisexuality, transsexualism, and transvestism are not disqualifying conditions for a security clearance. Potentially disqualifying sexual behavior is usually a complex issue and often involves other adjudicative criteria, such as Criminal Conduct, Personal Conduct, Use of Information Technology Systems and sometimes Foreign Influence.

Absent the potential for coercion, adultery or an isolated incident involving use of a prostitute usually does not result in the denial of a security clearance under Guideline D. However, when two or more criminal convictions exist, a conviction for solicting prostitution can be a Guideline J: Criminal Conduct issue. Under certain circumstances adultery in the military can also be a criminal offense. Eliminating the potential for coercion usually requires disclosing the conduct to a spouse and possibly to others, such as an employer if a work associate is involved or the spouse of the other person.

Allegations of sexual harassment are rarely considered under Guideline D. They are almost always Guideline E: Personal Conduct issues, because they involve rule violation and may be indicative of questionable judgment.

Compulsive, self-destructive involvement with pornography outside the workplace seldom becomes a Guideline D issue, because it is rarely discovered during a standard background investigation. Viewing or downloading pornography on an employer’s computer is a Guideline M: Use of Information Technology Systems issue, because it is almost always an unauthorized use of an employer’s computer. It can also be a Guideline E issue, because it is a misuse of an employer’s time and usually a violation of work rules.

Sexual misconduct occurring in foreign countries or involving foreigners can increase susceptibility to foreign exploitation and therefore create additonal security concerns under Guideline B: Foreign Influence.

When sexual behavior is a potential disqualifying condition, adjudicators must consider the following factors in addition to the specific disqualifying and mitigating conditions listed at Guideline D:

Extract from Paragraph 2(a) of the Adjudicative Guidelines

(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.

Do all adjudicators consistently apply the Adjudicative Guidelines when making security clearance determinations, particularly when sexual behavior is an issue? Do some adjudicators sometimes measure an applicant’s conduct against their own personal moral standards? Occasionally an adjudicator’s decision can be arbitrary or capricious. Fortunately every security clearance applicant has a right to appeal an adverse decision to a Personnel Security Appeal Board (PSAB). If the evidence did not support the decision and/or sufficient weight was not given to the applicant’s mitigating evidence, the applicant may be successful in having the decision reversed by a PSAB. Unfortunately this does not occur very often. PABs affirm clearance denials in a large majority of appeals.

Mental Health and Final Security Clearances (February 2010)

AFFECTED PERSONS

“An estimated 26.2 percent of Americans . . . suffer from a diagnosable mental disorder in a given year.”¹ Nearly two-thirds of these people do not seek treatment; some because of the stigma that is associated with mental health treatment.² Mental health issues can adversely affect an individual’s eligibility for a federal security clearance, but many clearance applicants worry unnecessarily and sometimes choose not to seek treatment due to fears that it could result in the denial or revocation of a clearance.

Guideline I (Psychological Conditions) of the “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information” is one of the least understood criteria for being granted a security clearance. Regarding the standards for eligibility for access to classified information, Executive Order 12968, issued in 1995, states:

"No negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling. . . . However, mental health counseling, where relevant to the adjudication of access to classified information, may justify further inquiry to determine whether the standards of subsection (b) of this section are satisfied, and mental health may be considered where it directly relates to those standards.”

This policy is restated in slightly different words in Guideline I and on the Standard Form 86—SF86 (Questionnaire for National Security Positions).

Of the 150,000 security clearance applications processed each year by the Defense Industrial Security Clearance Office (DISCO) only 5 applicants were denied clearances in 2009 by Defense Office of Hearings and Appeals Administrative Judges because of Psychological Conditions. A July 2009 article at www.Army.mil reported that the US Army Central Clearance Facility’s “adjudicative history indicates that 99.98 percent of cases with psychological concerns obtained/retained their security clearance eligibility.”

SECURITY CONCERN

A past or present mental, emotional, or personality disorder is not by itself a disqualifying condition for a final security clearance. A psychological condition does not have to be formally diagnosed as a disorder to be a security concern. The security concern arises when the possibility of future unreliable or dysfunctional behavior is indicated by either abnormal behavior or the opinion of a qualified mental health practitioner. When a psychological condition (or the side effects of medication) adversely affects a person’s judgment and behavior, such things as disappointment, failure, or perceive injustice or betrayal may cause reactions that are irresponsible, self-destructive, retaliatory, and/or unlawful. This can result in willful or negligent compromise of classified information, violence, sabotage, or espionage.

INVESTIGATION OF PSYCHOLOGICAL CONDITIONS

A “yes” response to the “Mental and Emotional Health” question on the SF86 indicates that additional information beyond the required dates of treatment and identification of the health care provider is needed to make a final security clearance determination. Wording of the question can be somewhat confusing. It reads:

Mental health counseling in and of itself is not a reason to revoke or deny a clearance.

In the last 7 years, have you consulted with a health care professional regarding an emotional or mental health condition or were you hospitalized for such a condition? Answer “No” if the counseling was for any of the following reason and was not court-ordered:

        1) strictly marital, family, grief not related to violence by you; or

        2) strictly related to adjustments from service in a military combat environment.

There is no exception for relationship counseling that does not involve a spouse or other family member. In the question the word “strictly” is used to rule out situations where the applicant seeks mental health counseling for one of the exceptions and is diagnosed as having a different or separate problem. For example an applicant initially seeks marital counseling and is diagnosed as having bipolar disorder. It is unclear whether the intent of the question is to make the exceptions equally applicable to situations where an applicant “consulted with a health care professional” or was “hospitalized.” If there is any doubt about whether counseling or hospitalization should be disclosed, it is always preferrable to answer “yes” to the question and provide both the required information and a detailed explanation in the comment section or continuation space on the SF86.

When applicants answer “yes” to this question they are directed to complete an “Authorization for the Release of Medical Information.” This form is on the last page of the SF86 and authorizes a mental health practitioner to answer 3 questions:

Does the person under investigation have a condition that could impair his or her judgment, reliability or ability to properly safeguard classified national security information?

If so, describe the nature of the condition and the extent and duration of the impairment or treatment.

What is the prognosis?

When the mental health practitioner(s) answer(s) “no” to the first question, there is no further investigation of this issue, unless the investigation surfaces contradictory information from some other record or personal source. When there is a “yes” to the first question, the applicant is usually required to complete an INV Form 16A, Specific Medical Release, which is used to obtain more detailed information regarding medication, other treatment, test results, and medical opinions regarding health, recovery and/or rehabilitation. If necessary a security adjudicator will consult with a qualified government mental health practitioner, and if any doubt remains about an applicant’s reliability, the applicant can be required to undergo a medical evaluation by a psychiatric consultant.

There is a presumption that mental health treatment that occurred more than 7 years ago or any treatment related to one of the exceptions to the “Mental and Emotional Health” question on the SF86 is not relevant or material to a security clearance determination. However if information is developed during an investigation that unlisted mental health treatment is relevant, information about the treatment can be pursued.

ADJUDICATION OF PSYCHOLOGICAL CONDITIONS

Guideline I of the Adjudicative Guidelines lists 3 specific examples of potentially disqualifying conditions and 5 specific examples of mitigating conditions. Ultimately almost all cases where a final clearance is denied due to psychological conditions involve 1 of the 4 following situations:

(1)     The applicant has displayed dysfunctional or abnormal behavior, and the applicant refuses to seek treatment or refuses to undergo medical evaluation.

(2)     A qualified medical practitioner has determined that the applicant’s condition could impair his or her judgment or reliability, and the applicant has failed to take medication or participate in other treatment as prescribed.

(3)     A qualified medical practitioner has determined that the applicant’s condition could impair his or her judgment or reliability and the condition can not be adequately treated.

(4)     A qualified medical practitioner has determined that the applicant’s condition could impair his or her judgment or reliability and there is a lack of persuasive evidence that the condition is under control and will remain so for the foreseeable future.

INTERIM CLEARANCES

The federal policy against drawing negative inferences solely on the basis of mental health treatment and the very low denial rates for final clearances do not apply to interim security clearances. Unless properly documented mitigating information is submitted with clearance applications, interim clearances are frequently declined when applicants list mental health treatment on their SF86.  For more information regarding interim clearances see the article on "Mental Health and Interim Clearances" (below).

POLICY

Regarding eligibility standards for access to classified information, Executive Order 12968 states:

"No negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling. . . . However, mental health counseling, where relevant to the adjudication of access to classified information, may justify further inquiry to determine whether the standards of subsection (b) of this section are satisfied, and mental health may be considered where it directly relates to those standards."

All information required on an SF86 is considered relevant. The only types of mental health treatment presumed not to be relevant are those that fall into one of the specific exceptions to Question #21, “Mental and Emotional Health,” on the SF86. Question #21 reads:

Mental health counseling in and of itself is not a reason to revoke or deny a clearance.

In the last 7 years, have you consulted with a health care professional regarding an emotional or mental health condition or were you hospitalized for such a condition? Answer “No” if the counseling was for any of the following reason and was not court-ordered

        1) strictly marital, family, grief not related to violence by you; or

        2) strictly related to adjustments from service in a military combat environment.

The question starts with the sentence: “Mental health counseling in and of itself is not a reason to revoke or deny a clearance.” However, the “declination” of an interim clearance is not considered a clearance denial, so the sentence does not apply to interim clearance decisions.

Guideline I (Psychological Conditions) of the “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information” states, “No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.” It is the policy of the Defense Security Service (DSS) to use the standards in the Adjudicative Guidelines for the granting both interim clearances and final clearances. In theory if the SF86 contains no information indicative of a current or past condition that could impair judgment, reliability or trustworthiness, there should be no basis for declining an interim clearance under this guideline. However, contrary to this policy, the Defense Industrial Security Clearance Office (DISCO), which is a part of DSS, regularly declines interim clearances when mental health counseling is listed on the SF86.

The information provided at the DSS webpage on interim clearances, as it pertains to mental health, was obviously written for an older, obsolete version of the SF86. It identifies emotional, mental and personality disorders as an example of one of the most common reasons for an interim clearance declination. It goes on to state:

Not all of the above examples will result in the decline of an interim eligibility. There can be mitigating factors such as a particular behavior was not recent, or it was an isolated incident. Or, in the case of emotional, mental and personality disorders, mental health treatment [was] for a temporary condition such as that caused by a death, illness or marital breakup. In this regard, it is important that an applicant for a personnel security clearance answer all questions fully as requested on the security application form. A remarks section exists on the form where information may be added if there is not room in the applicable section of the form to provide additional details. For example, an applicant may want to provide reasons for mental health treatment.

This passage clearly indicates that mental health treatment by itself can result in the declination of an interim clearance. It also suggests mitigation is possible, if the treatment was only for a temporary condition caused by death, illness or marital breakup. It is uncertain what is meant by “illness,” but bereavement/grief counseling and marital counseling no longer have to be listed on the SF86 and therefore would not enter into an interim clearance determination. The important point is that mitigation of this issue for an interim clearance is possible.

MITIGATING MENTAL HEALTH TREATMENT

Since interim clearance determinations are made very early in the security clearance process, to be successful it is necessary to provide information with the SF86 indicating that no potentially disqualifying condition exists or that such condition is fully mitigated. There are things that you should do before you actually fill out the SF86.

Discuss this matter with your doctor (psychiatrist or psychologist) before you apply for job that requires a security clearance. If you doctor feels that your past or present condition does not adversely affect your eligibility for a clearance, obtain a letter from your doctor on letterhead stationary stating either that:

• You do not have a condition or treatment that could impair your judgment, reliability or ability to properly safeguard classified national security information, or

• You have a condition that could impair your judgment, reliability or ability to properly safeguard classified national security information, but the condition is under control and will remain so for the foreseeable future.

The letter should include your doctor’s address, telephone and fax numbers, and a statement indicating that he/she is willing to answer questions about your condition, treatment, and prognosis from any government security official by telephone, fax, mail, or in person. The letter should also describe your condition, treatment, and prognosis. You should complete a medical information release form (one that is acceptable to your doctor) authorizing your doctor to discuss your case with government security officials and leave a copy of the release on file at your doctor’s office. Also give your doctor a completed copy of the SF86 Authorization for the Release of Medical Information.

When filling out the SF86, indicate in the “Continuation Space” of the paper version or in the comment section of Question #21 on the electronic version (Electronic Questionnaires for Investigations Process—eQIP) that you are submitting a letter from your doctor regarding your mental health treatment.

Give a copy of both releases and the original letter from your doctor to the person who processes your clearance application, so that these documents can be forwarded to the government official who makes your interim clearance determination. You can place the letter from your doctor in a properly marked, sealed envelope to prevent people, other than the appropriate government security official, from reading it.

CONCLUSION

There are scores of federal adjudication facilities employing several hundred trained professional adjudicators who are authorized to make interim and final clearance decisions. There are a greater number of personnel security specialists, assigned to a multitude of military and government security offices that initiate or process security clearance requests, who are also authorized to make interim clearance decisions. Among this latter group the level of training and experience vary greatly. Consequently there is much less consistency in interim clearance decisions than in final clearance decisions. Success in obtaining an interim clearance may depend more on the experience, training, and mindset of the decision maker than on the persuasiveness of the mitigating information submitted.

In the vast majority of cases where an applicant successfully mitigates a security issue with information included in or submitted with an SF86 and receives an interim clearance, they also later receive a final clearance. For a complete discussion of the relevance, investigation, and adjudication of psychological conditons for final security clearances, read the article “Mental Health and Final Security Clearances” (above).

The “Personal Conduct” criterion (Guideline E) of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information encompasses a wide variety of dishonest or unreliable behavior not specifically covered under other adjudicative criteria. It also addresses multiple instances of minor misconduct covered under other criteria where the misconduct fails to reach the threshold of being considered a potentially disqualifying condition. In 2009 about 31% of the 1278 cases reviewed by Administrative Judges at the Defense Office of Hearings and Appeals cited “Personal Conduct” issues.  Most of these cases involved intentional falsification of relevant information on the Standard Form 86 – SF86 (Questionnaire for National Security Positions). Other “Personal Conduct” issues are:

• Failure to cooperate with investigation

• Pattern of dishonest, unreliable, or rule-breaking behavior

• Vulnerability to coercion

• Association with persons involved in criminal activity

• Violation of a written commitment made as a condition of clearance or employment

This article addresses issues covered by Guideline E that are not related to intentional falsification. The issue of falsification is discussed in the article, “Falsification of Security Clearance Applications.”

SECURITY CONCERNS

Failure to cooperate with investigation

A security clearance is a privilege, not a right. Applicants can not be compelled to provide information or submit to other examinations, but refusal to fully cooperate in the security clearance process usually results in a clearance denial, because it creates the presumption that the applicant is hiding relevant information. Asserting the Fifth Amendment right against self-incrimination will not mitigate a refusal to cooperate or provide information. The SF86 provides some protection against criminal prosecution. Question #23 (Illegal Use of Drugs or Drug Activity) and question #27 (Use of Information Technology Systems) both included the caveat, “Neither your truthful responses nor information derived from your responses will be used as evidence against you in any subsequent criminal proceeding.”

Pattern of dishonest, unreliable, or rule-breaking behavior

When an applicant has been involved in multiple incidents of conduct that individually fall below the threshold for denying a clearance, the conduct can be evaluated in its totality to determine the applicant’s eligibility for a clearance. When reviewed separately, traffic infractions, a single misdemeanor arrest for shoplifting, issuing bad checks and minimal participation in copyrighted file sharing on a peer-to-peer network usually would not result in a clearance denial. But when reviewed under Guideline E, the sum of the conduct can become a potentially disqualifying condition.

Misconduct not specifically addressed under other adjudicative criteria can also evaluated under Guideline E. This includes such things as work- or school-related misconduct, rule violations, and dishonesty. It can also include failure to act in a responsible manner in one’s relationship to family, friends, neighbors and associates. As with conduct that falls below the threshold for clearance denial under a specific adjudicative criterion, this type of conduct is evaluated in its totality. Specifically addressed in Guideline E are:

• Misuse of employer’s time and resources

• Disruptive, violent, or other inappropriate behavior in the workplace

• Untrustworthy or unreliable behavior

• Pattern of dishonesty or rule violation

Vulnerability to coercion

Whenever a person attempts to conceal conduct that could cause serious embarrassment or problems with a spouse, family member, employer, or law enforcement/security agency, the potential for vulnerability to coercion exists. Examples include:

• Misrepresentation of professional or educational qualifications

• Concealment of potentially disqualifying conditions on any employment or security form

• Concealment of business or financial problems from family members

• Involvement in undetected criminal activity

When a person engages in seriously embarrassing or prohibited conduct in a foreign country or such conduct becomes know to foreign nationals, it significantly increases the possibility of exploitation by a foreign intelligence or security service and creates heightened security risk.

Association with persons involved in criminal activity

Close and continuing contact with anyone involved in criminal activity is a potentially disqualifying condition. Contact or communication with a person in prison or any other person who is no long involved in criminal conduct is not a disqualifying condition. Association with an immediate family member involved in criminal activity is evaluated based on the nature of the association, the nature of the criminal activity, and the potential for undesirable influence.  

Violation of a written commitment made as a condition of clearance or employment

Occasionally security clearances are granted with conditions. Such conditions can include a promise to sever a relationship with a foreign business or organization, pay off delinquent debts by a certain date, or abstain from illegal use of drugs. A violation of a written condition for a clearance can be the basis for clearance revocation. Violations of written commitments made by individuals to employers as a condition of employment can also be a potentially disqualifying condition.

MITIGATING CONDITIONS

Extracted from the Adjudicative Guidelines

• The refusal or failure to cooperate . . . was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

• 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;

• 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 caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

• The individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress;

• Association with persons involved in criminal activities 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.

Adjudicators are admonished to consider “available, reliable information about the person, past and present, favorable and unfavorable” in reaching a clearance determination. Like other adjudicative criteria, some “Personal Conduct” issues can be mitigated by positive attributes considered under the “whole person concept.” When mitigating security issues under Guideline E (as well as other guidelines), an applicant should submit information that specifically addresses the applicable mitigating conditions.  They should also submit information regarding other positive aspects of their life, such as major lifestyle changes, recognition for professional and academic achievement; participation in charitable, civic, and service organizations; and other constructive community and professional involvement.