SECURITY CLEARANCE “SELF REPORT”

As you may know, the government requires that those who hold a security clearance “self report” when something “derogatory” happens.

WHAT IS A DEROGATORY INFORMATION?

Anything may be considered derogatory, but here are common 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 an 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 one is a bit tricky as counseling for certain situations need not be reported (e.g., you sought the counseling on your own initiative to help you cope). Counseling must 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 reach out to an experienced security clearance attorney as soon as possible since the government expects that these events are reported immediately.

WHAT HAPPENS AFTER I SELF-REPORT?  

The procedures that follow a self-report vary depending on department and your status (Contractor, GS Employee, Active Duty, etc.). Generally, your security manager will determine if a report to the DoD Central Adjudication Facility (DoDCAF) is warranted. Simultaneously, your employer will determine if temporarily suspending your access to classified material is warranted. If so, you may be reassigned to duties that do not require such access while awaiting DoDCAF action. This is a temporary decision that can only be reversed by DoDCAF. A suspension will likely initiate an investigation to determine if your eligibility should be revoked. After the investigation is complete, the DoDCAF 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 LOI (SOR) and will have the right to appeal, the procedures for which are outlined in detail here.

DENIAL OF SECURITY CLEARANCE

If you’re a DoD contractor, DoD employee or active duty military member, you will need to have a favorable back ground investigation and perhaps a security clearance to perform your duties or to assume new duties. A denied or revoked clearance could result in loss of job, missed promotions and even separation from active duty. It’s important to understand what goes in to the process and how to improve your chances. For adjudicative factors and more information, click here.

When a case contains significant unmitigated derogatory information,  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 contains instructions on how to request a copy of the investigative file and adjudicated guidance (SEAD-4) to assist with mitigating the derogatory information.

FEDERAL CONTRACTORS

Federal contractor personnel can and should submit a written rebuttal to the SOR and request the DoDCAF reverse their preliminary decision to revoke or deny. If the applicant doesn’t submit a rebuttal, DoDCAF will make the revocation or denial of eligibility final. If the applicant rebuts the SOR without 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 obviating the need to present the case to an AJ. If not, the applicant can submit a written response 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, may cross-examine witnesses and challenge evidence presented by the government. The AJ makes a written decision and a copy is sent 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.

DOD CIVILIAN EMPLOYEES AND ACTIVE DUTY MILITARY MEMBERS

DoD civilian employees and military personnel can submit a written rebuttal to the SOR, but they are not entitled to a hearing. If the applicant doesn’t rebut the SOR, DoDCAF 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 information submitted 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. For a full discussion on security clearance appeals, click here.

SHOULD I HIRE A SECURITY CLEARANCE LAWYER TO ASSIST ME WITH MY SECURITY CLEARANCE MATTER?

You should certainly consider it. One review of 500 security clearance cases where an SOR was issued, showed that applicants with a security clearance lawyer were granted clearances 60% more often than those who represented themselves. A security clearance attorney who has experience representing clients in security clearance matters can help you navigate the pitfalls of the process, identify potential problems, help gather evidence to mitigate them, and ensure your package is as strong as possible. At King Military Law, our lawyers have worked security clearance issues from 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.

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