By John V. Berry, Esq., www.berrylegal.com
When an individual is facing issues related to a particular psychological condition, either during the application process for a security clearance or after they obtain a security clearance, it is important for them to obtain legal advice and possible representation in order to provide the best opportunity to maintain access to classified information. There are a number of security concerns relating to psychological conditions that can be potentially mitigated iif the right evidence is presented.
Guideline I - Psychological Concerns
Guideline I of the Adjudicative Guidelines (contained within DOD Directive 5220.6) governs security clearance issues involving psychological conditions. Guideline I provides the following security concerns about individuals with psychological conditions:
The Concern. Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline. No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.
How to Mitigate (Resolve) Psychological Concern Issues
We often represent and advise individuals regarding mental health concerns that arise in the course and scope of holding or seeking to obtain a security clearance. Typically, mitigation will require the assistance of an individual’s medical professionals in order to demonstrate that the psychological condition does not remain a significant security concern. The following are some of the types of mitigation arguments that can be made in security clearance cases (in any given case, some will apply, and others will not):
1. Evidence which shows that the psychological condition is under control with treatment;
2. Evidence which demonstrates that the individual has demonstrated ongoing compliance with medical treatment (and consistency);
3. Evidence that the individual has entered a counseling or other treatment program by qualified medical professionals;
4. Medical opinions by qualified mental health professionals which show that the psychological condition is under control;
5. Evidence that the psychological condition at issue was temporary in nature and/or no longer remains a current problem; and/or
6. Evidence from family and friends which demonstrates that an individual has recovered from psychological conditions.
The following are summaries of sample cases involving Guideline I cases before the Defense Office of Hearings and Appeals (DOHA) involving psychological conditions:
1. ISCR Case Number: 07-10169 (May 2010) (Applicant was diagnosed with major depression, recurrent, moderate, without psychosis; dysthymic disorder history; panic disorder without agoraphobia; and generalized anxiety disorder. Clearance was granted because DOHA found that Applicant’s psychological conditions were under control and managed properly by Applicant’s physicians).
2. ISCR Case Number: 09-02257 (Aug. 2010) (Applicant was diagnosed with major depressive disorder, but DOHA granted clearance finding that Applicant’s medications were being properly managed and that the Applicant’s mental health had improved to the point where he was in remission).
3. ISCR Case Number: 12-00322.h1 (Jan. 2014) (Applicant's diagnosed psychological condition, bi-polar disorder, was not mitigated (and clearance was denied) due to the absence of current evidence from a mental health professional to corroborate his claim that he no longer needed medication or consultation);
4. ISCR Case Number: 09-00318.h1 (June. 2012) (Applicant’s history of non-compliance with medical treatment for diagnosed bi-polar disorder, resulting in judgment difficulties and behavioral problems causing hospitalization was not mitigated and clearance was denied);
5. ISCR Case Number. 10-01525 (March 2012) (Applicant mitigated the psychological conditions concern under Guideline I, as depression was in remission and no current problems existed. Applicant had previously suffered from episodes of depression in 2003, 2006, and 2009, but quickly overcame these bouts on his own (two being clearly related to outside stressors, including a divorce after 14 years of marriage).
When an individual is seeking advice regarding a psychological condition as it impacts a security clearance, it is important to obtain legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.