Security Clearances

 

Understanding the Security Clearance Process and How to Prepare for It

The process of obtaining a security clearance from the Department of Defense starts with the eQIP, which stands for electronic Questionnaire for Security Processing. Applicants can only access the e-QIP system after being invited to do so by an appropriate official at their sponsoring agency. Individuals cannot pre-apply for a security clearance, nor update their security questionnaire unless granted access by an appropriate agency official. However, to get an idea of the questions you will be required to answer, click here for the old SF86 form.

If you’re applying for a security clearance, preparation is essential. As you will see from the SF86, you’ll be required to list addresses at which you’ve lived going back several years, friends, credit card information, etc. Most people do not know every address, telephone number, birth date, or email address required by the eQIP so start collecting the information as far in advance as you can. You may also want to request a copy of your credit report.

Filling out the eQIP requires thoroughness and honesty is the best policy. There will not always be an opportunity to explain your eQIP answers with a personal interview to allow you to explain the differences between your eQIP answer and information developed during the investigation, so be careful and reach out for help from a security clearance lawyer or security clearance attorney experienced in security clearance law if you have any questions.

Security Clearance “self Report”

Once you have a security clearance, the government requires that you “self-report” when something “derogatory” happens. While we provide the information below, KML encourages all clearance holders to consult with a security clearance lawyer or security clearance attorney before self-reporting any derogatory information or in the event of a potential security clearance denial, to guide you through the process and protect your rights.

What Is A Derogatory Information?

Anything may be considered derogatory, but here are typical examples:

-Foreign Contacts: Contact with individuals of any foreign nationality, either within or outside the scope of your official duties, in which illegal or unauthorized access to classified or otherwise sensitive information is sought, personal concern that you are a target of attempted exploitation, all close and continuing relationships between SCI-cleared individuals and foreign nations.

-Loss or compromise of classified information.

-Financial Problems: Filing for bankruptcy, garnishment of wages, having a lien placed on your property for failing to pay a creditor, eviction from a residence for failure to pay rent, or simply your inability to meet all your financial obligations.

-Arrests: Any arrest, regardless of whether or not charges were filed. This is the most common reason clients seek assistance from KML. The government also expects you to self-report certain involvement with the legal system, such as being sued.

-Psychological or Substance Abuse Counseling: This is a bit tricky as counseling for certain situations need not be reported (e.g., you sought the counseling on your initiative to help you cope). Counseling must usually be reported if you were advised to seek counseling because of work performance or other undesirable behavior.

If you feel like you are in a situation that may require a self-report, please contact an experienced security clearance attorney as soon as possible since the government expects these events to be reported immediately.

What Happens After I Self-Report?

The procedures that follow a self-report vary depending on the department and your status (Contractor, GS Employee, Active Duty, etc.). Generally, your security manager will determine if a report to the Defense Counterintelligence and Security Agency (DSCA) is warranted. Simultaneously, your employer will decide if temporarily suspending your access to classified material is justified. If so, you may be reassigned to duties that do not require such access while awaiting DSCA’s action. This is a temporary decision that can only be reversed by DSCA. A suspension may initiate an investigation to determine if your eligibility should be revoked. After the investigation is complete, the DSCA will evaluate all of the data in accordance with adjudicative guidelines and the “whole person” concept. If a determination is made to reinstate, the suspension is lifted. If a decision is made to revoke, you’ll receive a Letter of Intent (LOI) with a “Statement of Reasons” (SOR) and will have the right to appeal, the procedures for which are outlined below.

Security Clearance Denial or Revocation

If you apply for a security clearance and it is denied, or you have a clearance and DCSA notifies you that they are considering revoking it, you still have options. A denied or revoked clearance could result in job loss, missed promotions, and even separation from active duty. Understanding what goes into the process and how to improve your chances is essential. To read a list of what the government considers when it decides whether to grant security clearances, click here, for the “Adjudicative Factors.”

When a case contains significant unmitigated derogatory information, the adjudicator issues either a “Supplemental Information Request” (SIR) or a “Letter of Intent” (LOI) to revoke or deny your eligibility. The LOI is a preliminary decision and will contain a “Statement of Reasons” (SOR) detailing the issues that are the basis of the decision. The LOI includes instructions on requesting a copy of the investigative file and adjudicated guidance (SEAD-4) to assist you in explaining, providing additional information, or “mitigating” the derogatory information.

Federal Contractors

Contractor personnel can and should submit a written rebuttal to the SOR and request the DSCA reverse their preliminary decision to revoke or deny. If the applicant doesn’t submit a rebuttal, DSCA will finalize the security clearance denial or revocation. If the applicant rebuts the SOR without a hearing, DOHA sends the applicant a File of Relevant Material (FORM) that will be presented to an Administrative Judge (AJ) for a clearance decision based on the written record. It is possible that DOHA could grant the clearance after reviewing the applicant’s response to the SOR, thus preventing the need to present the case to an AJ. If not, the applicant can submit a written reply to the FORM, which will also be presented to the AJ. If the applicant requests a hearing, the applicant (with or without an attorney) may present witnesses and other evidence at the hearing, cross-examine witnesses, and challenge evidence presented by the government. The Administrative Judge (AJ) makes a written decision and sends a copy to the applicant. DOHA then grants or denies the clearance in accordance with the AJ’s decision. If the clearance is denied, the applicant is notified in writing and advised of their right to appeal the decision. As you can tell, there are many points in this process where a skilled security clearance lawyer can be invaluable, and we encourage applicants to get some help if you find yourself in this situation.

DoD Civilian Employees And Active-Duty Military Members

The rules are a bit different for DoD civilian employees and military personnel. These applicants can submit a written rebuttal to the SOR but are not entitled to a hearing. If the applicant doesn’t rebut the SOR, DSCA will deny the clearance. If they submit a rebuttal to the SOR, the adjudicator will decide to grant or deny the clearance in light of the information presented in the rebuttal. If a decision is made to deny a clearance, the applicant receives written notification of their right to appeal the decision, including a right to a “Personal Appearance” before a DOHA AJ.

Should I Hire An Experienced Military Attorney To Assist Me With My Appeal?

You should certainly consider it. A review of 500 cases decided by Administrative Judges (AJs) at the Defense Office of Hearings and Appeals (DOHA) found that applicants with military attorneys were granted clearances 60% more often than those who represented themselves. An attorney who has experience representing clients in security clearance matters can help you navigate the pitfalls of the process as well as help ensure your appeal is as strong as possible. At King Military Law, we have been security clearance attorneys on both sides of the fence, building comprehensive insight into the process. We know what works, what doesn’t, and why. Please reach out if you think we can help.

King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most

 

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