By John V. Berry, Esq., www.berrylegal.com
We often represent employees in security clearance denials, revocations and other clearance related matters. One issue that we often run across involves the issue of employers submitting an employee’s information to a different security clearance agency or to the same agency for the purpose of upgrading an individual’s security clearance (e.g. from Secret to Top Secret). Sometimes the employee is made aware of the requested clearance upgrade and sometimes they are not. The issue is that a person can be approved for a lower level security clearance, but when they are submitted for the clearance upgrade they can be denied, even if there are no new security concerns at issue. The denial can then potentially impact their existing security clearance.
The Clearance Upgrade Issue
When a person is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized more thoroughly. For instance, if a person has been previously approved for a Secret level clearance, and is then submitted for a Top Secret level clearance, they could be denied based on the same concerns that existed when they were approved for a Secret clearance. This more often comes up where the person holds a Top Secret clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”
For example, suppose an individual is approved for a Top Secret security clearance by the Department of Defense, after mitigating some security concerns about past due debts or bad credit, but is then submitted for SCI access at an intelligence agency. The intelligence agency may consider those debts more serious than the agency that adjudicated the underlying security clearance and then deny access to SCI based on the same financial issues that were first resolved favorably when the person applied for their Top Secret clearance. This denial can potentially have significant consequences.
Upgrade Denial Can Impact Current Clearance
The result of a security clearance upgrade denial will be that the individual will likely have to list this denial in future clearance applications. Additionally, the denial could potentially cause the individual to lose (or have to defend) their existing security clearance. Depending on the employer and federal agency involved, there are appeals processes to challenge the upgrade denial, but it is something for an individual to seriously consider if there are security concerns in one’s background and a clearance upgrade is proposed or considered. It is often the case that seeking a clearance upgrade is optional for an employee. Thus, serious consideration should be given to whether or not any older security concerns were an issue during the individual's last clearance investigation or if new security issues have since arisen when considering whether to take the next step in pursuing a clearance upgrade. Taking time to consider these issues, in advance, can be very important.
It is important to consider the impact of upgrading a security clearance or security access before applying when there are previous security concerns at issue. An individual should consult with a security clearance attorney if they have any security concerns at issue that could pose potential issues. If you need assistance with a security clearance matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook or on Twitter.