Security Clearance Law Blog

Updated: Top Reasons Why Security Clearances Get Denied 2016

By John V. Berry, www.berrylegal.com

This article has been updated to provide the most common reasons that a security clearance might be denied in the reported government contractor decisions to date.  The information, taken from January 1, 2016 to the present (end of April, 2016), comes from the Department of Defense (DOD), Defense Office Of Hearings and Appeals (DOHA) decisions.  These are available online.  Our last article on the subject contained only about 40 decisions.  The DOHA caselaw database has since been significantly updated, providing far more decisions to include in this type of analysis.  

Security Clearance Guidelines

Keep in mind that reported DOHA decisions generally cover clearance appeals from DOD contractor employees, but the information provides a good insight into the most common reasons that an individual may have security clearance issues arise. There are several reasons why security clearances can be potentially denied, which generally fall under 13 separate categories known as the Adjudicative Guidelines. The federal government uses these 13 adjudicative guidelines to determine whether federal employees and contractors should be eligible for a security clearance to gain or maintain access to classified information. These guidelines include:

Guideline A: Allegiance to the United States

Guideline B: Foreign Influence

Guideline C: Foreign Preference

Guideline D: Sexual Behavior

Guideline E: Personal Conduct

Guideline F: Financial Considerations

Guideline G: Alcohol Consumption

Guideline H: Drug Involvement

Guideline I: Psychological Conditions

Guideline J: Criminal Conduct

Guideline K: Handling Protected Information

Guideline L: Outside Activities

Guideline M: Use of Information Technology Systems

Based on the 273 decisions issued by the Department of Defense (DoD), Defense Office of Hearings and Appeals (DOHA) from  January 1, 2016 to the end of April, 2016, by far the most common reason why a security clearance has been denied is based on Guideline F, Financial considerations. Financial consideration issues usually arise when an applicant for a security clearance has too many outstanding or delinquent debts, is facing bankruptcy, has credit report problems, or has unaddressed tax liens. The second most common reason why a security clearance has been denied in 2016 so far has been based on Guideline E, Personal Conduct. Personal conduct issues can involve a broad range of misconduct, such as information regarding an individual’s prior termination, arrest, or domestic incident, truthfulness in completing security clearance forms, or basically any other type of general wrongdoing, criminal, or otherwise.

The third most common security issue in 2016 where an individual might face a denial of a security clearance involves Guideline B, Foreign Influence.  Foreign Influence issues can involve applicants whose family has ties to another government, country or an applicant who maintains dual citizenship, among other concerns. The fourth most common reason why a security clearance has been denied in 2016 is based on Guideline H, Drug Involvement. Drug involvement or abuse is considered to be the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction (e.g., overuse of prescription pain medication).

Of the 273 cases reported thus far in 2016, the issues that have raised security concerns are as follows (in cases):

1. Financial Considerations: 205
2. Personal Conduct: 60
3. Foreign Influence: 18
4. Drug Involvement/Usage: 17
5. Criminal Conduct: 15
6. Alcohol Consumption:14
7. Foreign Preference: 8
8. Handling Protected Information: 3
9. Sexual Behavior: 3
10. Psychological Concerns: 2
11. Use of Information Technology: 2

Conclusion

It is important to note that the reported DOHA decisions generally cover security clearance appeals from DoD contractor employees, but the decisions provide good insight into common reasons why the federal government denies security clearances. When an individual is engaged in the security clearance hearing or personal appearance process, it is important to have legal representation. Our law firm represents 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 here.

Top Reasons Why Security Clearances Get Denied - 2016

By John V. Berry, www.berrylegal.com

This article provides the most common reasons that a security clearance might be denied. The information, taken from January 1, 2016 to the present, comes from Department of Defense (DOD), Defense Office Of Hearings and Appeals (DOHA) decisions. These are available online. Keep in mind that reported DOHA decisions generally cover clearance appeals from DOD contractor employees, but the information provides a good insight into the most common reasons for having a security clearance problem arise. There are several reasons why security clearances can be potentially denied, which generally fall under 13 separate categories known as the Adjudicative Guidelines.

Top Disqualifying Security Concerns

These potential disqualifying security concerns fall under:

(1) Guideline A: Allegiance to the United States
(2) Guideline B: Foreign Influence
(3) Guideline C: Foreign Preference
(4) Guideline D: Sexual Behavior
(5) Guideline E: Personal Conduct
(6) Guideline F: Financial Considerations
(7) Guideline G: Alcohol Consumption
(8) Guideline H: Drug Involvement
(9) Guideline I: Psychological Conditions
(10) Guideline J: Criminal Conduct
(11) Guideline K: Handling Protected Information
(12) Guideline L: Outside Activities
(13) Guideline M: Use of Information Technology Systems

For 2016, of the 42 DOHA reported security clearance decisions so far, the most common reason for the potential denial of a security clearance involved individuals having trouble under Guideline F, Financial Considerations. Financial Consideration issues usually arise when an applicant for a security clearance gets into trouble for having too many debts, delinquent debts, faces bankruptcy, has a problematic credit report or tax liens. The second most common security concern involved personal conduct issues under Guideline E, Personal Conduct which involves a broad range of types of misconduct, such as information regarding an individual’s past employment, an arrest, domestic incident, untruthfulness on security clearance forms, or basically any other type of general wrongdoing, criminal or otherwise.

The next most common issue was drug abuse, falling under Guideline H, Drug Involvement. Drug abuse is considered to be the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction (e.g. overuse of prescription pain medication). The statistics for the year, to date, follow, showing the numbers of cases involving specific security clearance issues:

1. Financial Considerations: 32
2. Personal Conduct: 11
3. Drug Involvement: 6
4. Criminal Issues: 2
5. Foreign Influence: 1

Typically, there has been more variety in the issues under review for security clearance cases. However, after looking at recent statistics, there appears to be a strong emphasis right now on security clearance denials based on financial troubles that clearance holders or applicants face.

Conclusion

When an individual is engaged in the security clearance hearing or personal appearance process, it is important to have legal representation. Our law firm represents 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 Berry & Berry PLLC Facebook Page.

 

 

Using Exhibits in Security Clearance Hearings

By John V. Berry, www.berrylegal.com

We are often asked by federal employees and government contractors about the use of exhibits in security clearance proceedings. Because each federal agency generally has their own internal security clearance process, the use and availability of exhibits is not standard in all federal agencies. That said, the use of exhibits in security clearance proceedings is generally similar throughout the different federal agencies. The use of exhibits to support a security clearance appeal is highly recommended in most cases.

Reasons to Present Exhibits During Clearance Hearing

A security clearance hearing or personal appearance centers on specific security concerns. The record that has already been established has been reviewed and without any additional information will likely result in a clearance denial. As a result, it is very important to present documents as exhibits which refute or explain the security concerns at issue and for mitigation purposes. For instance, if the security concern at issue involves an arrest, then a copy of full arrest records would potentially be important to obtain and introduce. Or, if mitigation is needed, then it might be important to obtain letters, declarations or affidavits in support of the individual’s character.

There are many reasons why exhibits are important in a security clearance case. The prehearing guidance typically given regarding the use of exhibits before the Defense Office of Hearings and Appeals (DOHA), is as follows:  

"The parties have a wide degree of discretion in deciding what order to present the evidence in their respective cases. The Federal Rules of Evidence are used as a guide. The parties should not mark any proposed exhibits. At the hearing, the Administrative Judge will mark the exhibits. Exhibits offered as evidence, but not admitted as such, will be retained by the Administrative Judge. As a general rule, photocopies of documents may be offered in lieu of the original, provided that the copies are legible. In the case of public records or business records, it is not required that the copies being offered be certified copies. However, nothing in this paragraph relieves a party from the responsibility of laying a proper foundation for a document when necessary. It is generally good practice to make sufficient photocopies of each proposed exhibit so that separate complete copies can be offered to the Administrative Judge and the opposing party. Preparation of such additional copies should take place before the scheduled hearing date, because there may not be any photocopying facilities available at the hearing location."

DOHA Prehearing Guidance Memorandum.  Most federal agencies have a less formal exhibit admission process than DOHA.  

Examples of Exhibits for Security Clearance Hearings

There are many different types of exhibits that can be used in a security clearance hearing or personal appearance which can go towards the merits of a security concern or towards mitigation. Just a few examples of potential exhibits can include:

1. Financial Considerations cases: Documents showing how any debt in question has been resolved, records of assets, salary, improving or good credit and other means showing that the individual is not subject to potential coercion based on finances.

2. Personal Conduct cases: Documents showing that an individual’s behavior has changed, declarations from individuals that demonstrate that the individual has good character, honesty or a good work record.

3. Illegal Drug use cases: Documents showing that the individual no longer uses drugs, medical documentation showing any recovery from addiction issues or underlying reasons for the illegal drug use, statements or declarations from other individuals showing that the individual has changed their lifestyle.

4. Psychological Concern cases: Documents of mental health treatment, records or expert reports on the stability and diagnosis of any mental health concerns.

5. Foreign Influence cases: Statements and records showing an individual’s loyalty to the United States and lack of association to a foreign country.

How Exhibits are Presented

Depending on the type of security clearance proceeding and federal agency involved exhibits are presented differently. For instance, if the individual’s matter is before DOHA or the Department of Energy then normally the exhibits are provided to the government attorney ahead of time and admitted or not admitted during the start of the proceedings by an administrative judge. If a security clearance matter is before a different federal agency, then they generally have a more informal procedure where you either provide exhibits ahead of time or during a personal appearance. Generally, in such proceedings, there are no significant objections to exhibits.

Conclusion

When an individual is engaged in the security clearance hearing or personal appearance process, it is important to have legal representation. Our law firm represents 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.