By John V. Berry, Esq., www.berrylegal.com
When issues arise with respect to one’s existing security clearance they may be reported by an employer and placed in the Joint Personnel Adjudication System (JPAS). This type of reporting is generally referred to as an Incident Report. A negative Incident Report can be reported by a supervisor and then to your employer’s Facility Security Officer (FSO), or by other governmental entities, investigators or others. It is important to understand what effect this may have on one’s security clearance and to obtain legal advice early in the process in order to protect an individual's security clearance.
JPAS Issues Can Arise
JPAS is the system that was put into place by the U.S. Government and used to check the status of an individual’s security clearance (and involved in personnel investigations). JPAS issues often come up when an individual is terminated from a position with a federal contractor where they have held a security clearance. When an individual with a security clearance is terminated, the employer generally separates the individual in the JPAS system.
If the employer has terminated the individual’s employment relating to an incident of alleged misconduct, the employer will often submit an Incident Report through JPAS describing the basis for the termination of employment / the misconduct involved. If a person has left the employer in good standing this is not as much of an issue as the person may retain interim security clearance eligibility in JPAS.
If the person is still employed by the government contractor, the Incident Report will then be reviewed by the Department of Defense Central Adjudication Facility (CAF) to determine what actions may be necessary regarding an existing security clearance. If the Incident Report involves minor issues or does not appear to contain any serious security concerns, the CAF will generally close the Incident Report and update the individual's clearance record in JPAS.
The CAF, however, can also decide to request further information, to include requiring a new Standard Form SF-86 in addition to a full / limited investigation regarding the issues involved. Once the new investigation is complete, the CAF can determine what steps to take in adjudicating the Incident Report and whether to leave an individual’s security clearance intact or to move to take steps to revoke an individual’s access to classified information.
Problems with the JPAS System and Loss of Jurisdiction
A major problem with the JPAS system for security clearance holders tends to occur when an individual is terminated at the same time that an Incident Report is submitted. The problem here becomes that CAF cannot adjudicate the issues in the Incident Report because they believe that there is a “loss of jurisdiction.” A loss of jurisdiction just means that the CAF is without authority to adjudicate security concerns if an individual is no longer employed by a contractor and the security concerns are still pending.
Ultimately, the individual subject to a loss of jurisdiction seeks new employment, believing that they still have their security clearance intact. The new employer’s Security Officer then inquires about the individual’s security clearance and finds out that there is an unresolved Incident Report which is holding up the validation of the security clearance at issue.
New Employer Can Sponsor an Individual
The good news in this type of matter is that an individual’s new employer can sponsor the individual in the clearance process so that a previous Incident Report can then be taken out of “loss of jurisdiction” status and reviewed and adjudicated by the CAF. If the Incident Report at issue contains only minor security concerns the CAF can resolve the matter and reinstate the person’s clearance. If not, further investigation may be needed, which can take more time.
Coordinate with the Prior Employer
It is always important to have counsel when an outstanding JPAS Incident Report is involved. Often time past issues with an employer may have led to the negative information being placed in the Incident Report. When we represent individuals we often attempt to resolve their past employment and related security concerns with their past employers.
Conclusion
When responding to an Incident Report involving an individual’s security clearance, it is very important to have counsel represent you in the process. It can make the difference between obtaining and being denied your security clearance. Our law firm represents federal employees and contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.