By John V. Berry, Esq., www.berrylegal.com
Guideline E of the Adjudicative Guidelines for Security Clearance evaluations is one of the most commonly used guidelines by the government for denying security clearance applications, renewals or upgrades.
BACKGROUND FOR GUIDELINE E CASES
Guideline E, Personal Conduct, covers such broad categories as honesty, falsification, reliability and questionable judgment. One of the most common issues that we see in our practice which falls under Guideline E involves alleged instances of dishonesty. We also see other security clearance concerns falling under Guideline E, where an individual receives a Statement of Reasons (SOR) related to alleged poor judgment evidenced by having debts, the failure to follow rules and other work-related misconduct.
Truthfulness, falling under Guideline E, is viewed as one of the most important qualities by the government for those holding a security clearance and hence one of the most common issues that arises in security clearance investigations. One of the other key areas for review by investigators under this guideline involves an applicant’s willingness to follow rules, laws and regulations. The government believes that the protection of classified information generally requires strict compliance with rules and regulations. An individual’s willingness to comply, in general, with rules and regulations is, therefore, a very important qualification for access to sensitive information. As a result, any conduct which indicates an individual's inability or the lack of desire in following laws, rules and regulations can be a significant security concern under Guideline E, Personal Conduct.
When issues involving personal conduct arise, in the scope of a security clearance examination or review, it is very important to take them seriously and to obtain legal counsel familiar with these types of issues in order to minimize the potential damage to a security clearance.
Guideline E, Personal Conduct, in pertinent part, lists the government's concerns under this provision, as follows:
Guideline E: Personal Conduct
The Concern. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.
Conditions that could raise a security concern and may be disqualifying also include:
(1) Reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances;
(2) The deliberate omission, concealment, or falsification of relevant and material 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;
(3) Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other representative in connection with a personnel security or trustworthiness determination;
(4) Personal conduct or concealment of information that may increase an individual's vulnerability to coercion, exploitation, or duties, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail;
(5) A pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the individual and the agency;
(6) Association with persons involved in criminal activity.
Conditions that could mitigate security concerns include:
(1) The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability;
(2) The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;
(3) The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts;
(4) Omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided;
(5) The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress;
(6) A refusal to cooperate was based on advice from legal counsel or other officials that the individual was not required to comply with security processing requirements and, upon being made aware of the requirement, fully and truthfully provided the requested information; and
(7) Association with persons involved in criminal activities has ceased.
TIPS IN HANDLING SECURITY CLEARANCE CASES INVOLVING PERSONAL CONDUCT ISSUES
In security clearance cases involving Guideline E, Personal Conduct, it is important to thoroughly review all of the facts listed in the SOR and make a checklist of the allegations that are at issue. This is important because it will be crucial, especially in cases alleging instances of untruthfulness or falsification, to fully contest each of the factual allegations mentioned in the SOR to support the security concern under Guideline E.
In our practice, we advise individuals that have security clearance issues falling under Guideline E to obtain as much information regarding the allegations to rebut them in your response before your agency, Central Adjudication Facility (CAF), Personal Security Appeals Board (PSAB) or other oversight authority for your clearance. Providing a general response, without supporting evidence, often does not result in effectively rebutting the security concerns raised.
Essentially, when Guideline E allegations are raised, an applicant needs to aggressively respond to each of the factual allegations made, providing a full explanation/rebuttal of each issue raised by the agency, in addition to providing documents to support your response. One of the most helpful types of information that can be provided by an individual seeking a clearance are written (and preferably sworn) statements from other individuals that support your version of events regarding an allegation.
For example, if you are alleged to have had a history of not following rules and regulations because a former employer provided this allegation to investigators, the best type of response would include written statements from others that were present which would support your version of events. While obtaining documents and witness statements can be time consuming and/or difficult, often times it is what makes the difference in obtaining a positive outcome as to one's security clearance application.
Personal conduct cases under Guideline E involve diverse types of facts, and a number of mitigating factors specific to each case so it is important for an attorney to be consulted as soon as possible in the process to assist applicants.