By John V. Berry, Esq., www.berrylegal.com
There are times when an individual is denied or loses his/her existing security clearance, and subsequently attempts to regain his/her clearance. We typically see this occur when a government contractor appeals an adverse clearance determination to the Defense Office of Hearings and Appeals (DOHA) and loses his/her clearance appeal. The individual then loses access to classified information and is barred for a period of one year from seeking reconsideration on the clearance decision.
The procedures for seeking reconsideration for most government contractors are detailed in DODD Directive 5220.6, Enclosure 3. This Directive covers most Department of Defense-connected government contractors. Federal employees follow a different process for security clearance decisions.
The Security Clearance Denial
Before seeking reconsideration for a security clearance determination from DOHA, there has to be a final denial of the security clearance by DOHA. Directive 5220.6, Enclosure 3, E3.1.37, specifies that “an applicant whose security clearance has been finally denied or revoked by DOHA is barred from reapplication for 1 year from the date of the initial unfavorable clearance decision.” This means that seeking reconsideration generally can occur one year after the date of: (1) the DOHA Administrative Judge’s final decision to deny the individual’s security clearance, or (2) an unfavorable decision from the DOHA Appeal Board on an appeal from the DOHA Administrative Judge’s decision.
Just because the individual is barred from reapplication of a clearance position for one year does not necessarily mean that that the individual should immediately re-apply at the end of the 12-month waiting period. The individual should re-apply when the original security concerns have been sufficiently mitigated as opposed to the first moment that he/she becomes eligible to seek reconsideration. In addition, it is important to have legal counsel review the original security concerns before seeking reconsideration.
The Reconsideration Process
The reconsideration process generally begins when the government contractor has waited at least one year to seek another position that requires access to classified information. The process unfolds as follows:
1. A year has passed and the individual seeking the clearance believes that he/she has mitigated or reduced the original security concerns that led to the denial.
2. The individual applies for a new employment position for which a security clearance is required.
3. The individual is hired for the position requiring the clearance.
4. The individual completes a new SF-86 / e-QIP and submits it to the Defense Industrial Security Clearance Office (DISCO), along with a request for reconsideration.
5. The individual will then receive a notice from DISCO stating that he must provide the Director of DOHA (Director) with: (1) a copy of the original security clearance decision denial, and (2) any evidence the employee wishes to submit that would provide a basis for reconsideration (e.g., any information about additional mitigation that has taken place since the original denial).
6. If the Director, in his/her discretion determines that sufficient changes have occurred since the original denial, the Director can grant reconsideration. If the Director determines that reconsideration is not warranted, the individual is barred again from re-applying for reconsideration for an additional one-year period from the date of the Director's decision.
7. If reconsideration is granted by the Director, the Director will then determine whether or not the original security concerns have been mitigated. If the original security concerns have been determined to be mitigated, the case is then processed as a new investigation with the older security concerns resolved.
8. If reconsideration is granted, but the Director does not believe that the original security concerns have been fully mitigated, the investigation is sent to the DOHA hearings unit for further review and a new hearing.
Other agencies follow their own procedures for security clearance reconsideration with respect to their own government contractors; however, the above rules apply for the vast majority of individuals covered by the Department of Defense.
When an individual is seeking reconsideration in reference to a security clearance matter, it is important to obtain legal representation. Our law firm advises individuals in the security clearance reconsideration process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.