Security Clearance Information

Our security clearance lawyer has experience with courts-martials and court-martial appeals involving National Security/Espionage issues. You should consult with a military security clearance lawyer well versed in all aspects of getting, keeping, or getting back security clearances for military and federal employees, as well as DoD contractors.

A few of most common initial reasons a clearance application gets rejected. While they won't necessarily cause a denial, they cause delay in a process that's already very lengthy.

Some current news

Some coming changes to the application process. Several changes have been made over the recent past for situations involving mental health issues, primarily combat related PTSD and now military sexual assault. In addition a few changes will be made to account for social changes. Army Times reports on this:

  • A specific instruction will clarify that drug use and drug activity must be reported if it violated federal law, even if legal under state or local laws.
  • Contacts with foreign governments will not have to be reported if the contact occurred when the applicant was a member of the military on a military duty assignment, and foreign travel that involved crossing a border while on government business also will not have to be reported.
  • Questions about relationships will be revised to recognize same-sex marriages and divorces, as well as civil unions or legally recognized domestic partnerships.

Sound familiar, from a February 2013 Stars & Stripes.

The looming budget crisis will hit the Defense Department very hard. But there is a place where we can cut budgets and improve our security: reforming the process by which security clearances are granted.

Keep in mind that a DOHA hearing before an Administrative Judge is likely your best chance to get or keep a clearance if you have not presented a good case during the initial review process. Remember though, and this is from a DOHA reported case. "Included in his appeal are a number of documents. These constitute new evidence, which the Board cannot consider. See Directive [para.] E3.1.29." ISCR Case No. 10-07318, 2011 DOHA LEXIS 164 (October 26, 2011). So, be advised, talk to someone experienced with clearances before you submit your application, before you respond to a Statement of Reasons, or before hearing.

This month's success was for an O3 who had received a GOMR for BAH fraud related misconduct. A appeal package was prepared, a favorable commander recommendation obtained, and exhibits attached to dispute the underlying allegations. A continuation of a secret security clearance was granted. This has enabled the client to continue to be productive in the appropriate career field. The ability to operate in the career field with help overcome any adverse affects of the GOMR (the GOMR is also under appeal).

Other recent successes include:

A contractor who was fired from his job because the military command revoked his access to classified material. The basis for the revocation was improper use of IT systems. After a DOHA judge hearing a clearance was granted. Several reasons were cited for a grant based on application of the "whole person" concept and application of specific mitigating conditions.

A retired warrant officer who had an Article 15 for child neglect. We were able to establish several of the mitigating factors listed in the Directive. It was helpful that the applicant had a large number of senior and respected persons willing to give him character letters, and that two of them took time out of their day to come and testify in person at the DOHA hearing.

Consistent with efforts to deal with mental health issues and suicides within the military the Department of Defense has issued new instruction intended, as the title says, Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members. This instruction, along with other efforts reported below, will go a long way to assist military personnel who need a security clearance and who are impacted by combat deployment affects.

Some time ago action was taken to ensure combat experienced servicemembers with TBI/PTSD issues were not denied a clearance because of that condition. Now Congress appears close to action to deal with another impact on servicemember clearances: financial issues. It's well known that financial problems is one of the leading reasons for denial of a security clearance. With the recent impact of the economy, servicemembers find themselves in unwanted financial difficulty. Now Congress appears set to:

Draft legislation prepared for passage on Thursday by the House Armed Services Committee's readiness panel would not guarantee that the loss of a home to foreclosure doesn't hurt, but it would require that anyone with a record of foreclosure on their credit report receives a more careful review.

But, you have problem?

Active Duty, meeting with a security clearance investigator? Got some current or past misconduct in your life? What are your rights under UCMJ art. 31, 10 U.S. Code § 831, when being "investigated?" Not what you think perhaps - read United States v. Payne, 47 M.J. 37 (C.A.A.F. 1997).

Have a conviction for which you have been sentenced to one year in jail? You need to know about the disqualifications based on certain types of prior criminal conduct or mental health issues. Doesn't matter if you already have a security clearance or how long you've had one. Note that the Bond Amendment, not the Smith Amendment, is now the current rule on security clearances for people who have drug involvement, convictions, and dishonorable discharges. Note that persons denied a clearance because of the "Smith Amendment" may reapply for a clearance if they would not be barred under the "Bond Amendment," and their employee wants you in a cleared position.

Here are a number of resources

Laws and Federal Regulations on Intelligence
Presidential Directives and Executive Orders
Director of Central Intelligence (CIA)
DCI Directive 6/4, Personnel Security Standards and Procedures Governing Eligibility for Access to SCI

Director of Central Intelligence Directives

Regulations and Policy
Money Memorandum (Foreign Pref/Influ/Passport)

Air Force Regulations/Policy on Security issues
AFPD 31-4 Information Security
AFPD 31-5 Investigations, Clearances, and Access
AFI 31-401 Managing the Information Security Program
AFI 31-501 Personnel Security Program Management
AFH 31-502 Personnel Security Program.

DoD Office of Hearings And Appeals

DoD Directive 5220.6 containing the Revised Adjudicative Guidelines effective for any case with the SOR dated on or after September 1, 2006

Office of Naval Intelligence
Defense Intelligence Agency
National Security Agency
National Intelligence Council
DoJ, Office of Intel Policy And Review
National Recon Office
National Imagery And Mapping Agency
Dept of State Bureau of Intel and Research
House Permanent Select Committee on Intelligence
Senate Select Committee on Intelligence

Personnel Security Investigations

General discussion

Adjudicative Desk Reference

Employee Polygraph Protection Act 29 USC 2001, et seq.

Employee Polygraph Protection Act 29 CFR 801

Judicial Review of Claims of Discrimination in Security Clearance Determinations