Security Clearance Law Blog

Security Clearance Upgrade Denials

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.  

Conclusion

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.

The Whole-Person Concept in Security Clearance Matters

By John V. Berry, www.berrylegal.com

The "Whole-Person Concept" in security clearance cases is not well understood. As background, in security clearance cases, there are generally two parts to a clearance appeal: (1) responding to the security concerns at issue (individual disqualifying and mitigating factors) and (2) overall mitigation. Overall mitigation is most often used when the security issues are true or partially true, but an individual is arguing that the concerns should not bar them from the ability to retain or obtain a security clearance.

What is the Whole-Person Concept?

General mitigation is usually referred to as the Whole-Person Concept in security clearance cases. This Whole-Person Concept evaluation focuses on whether the individual, even with security concerns, is an acceptable security risk. The determination calls for determination based on the all of the facts relevant to the person at issue.  Under the Whole-Person Concept, a clearance adjudicator (the government official reviewing the security clearance case) evaluates an individual’s eligibility for a security clearance by considering the “totality” of his or her conduct and all relevant circumstances. There are 9 factors that are reviewed based on the Department of Defense (DoD) Adjudicative Guidelines:
 
1. the nature, extent, and seriousness of the conduct; 
2. the circumstances surrounding the conduct, to include knowledgeable participation; 
3. the frequency and recency of the conduct; 
4. the individual’s age and maturity at the time of the conduct;
5. the extent to which participation is voluntary; 
6. the presence or absence of rehabilitation and other permanent behavioral changes; 
7. the motivation for the conduct; 
8. the potential for pressure, coercion, exploitation, or duress; and 
9. the likelihood of continuation or recurrence.
 
Under these Adjudicative Guidelines, the final determination of whether to grant eligibility for a security clearance is “an overall commonsense judgment” based on both the merits of the security issues and a review of the Whole-Person Concept. While only 9 factors are mentioned in the cases (e.g. at page 8) other factors are also considered but not mentioned. We find that the Whole-Person Concept is often best used to describe the individual’s character, positive work history and record, community involvement and other factors that help to show that the individual’s record merits a commonsense judgment for keeping or retaining his or her security clearance. Many of these generalizes concerns can fall under Factor 9.  

Example

As an example, take the case of an individual who holds a Secret security clearance and has been convicted of a minor criminal offense (i.e. assault). As a result of the issue, security concerns are then raised and the individual’s security clearance is potentially placed at risk. In addition to addressing the issues involving the criminal charge, the person would likely need to present evidence of good character (e.g., letters from supervisors, friends, and family), good or outstanding performance at work, military service, and/or community/charity involvement.  Evidence of prior public service, accomplishments or commendations can also be helpful under the Whole-Person Concept. Generally, we find that security clearance holders are not provided information from the government or security officers about how to use the Whole-Person Concept to assist them in resolving security clearance concerns.

Conclusion

In sum, the Whole-Person Concept is the part of the security clearance case where an individual gets to argue that notwithstanding the security issues that the person is still an acceptable security risk based on their life and record.

Financial Considerations: Reducing the Risks to Losing a Security Clearance

By John V. Berry, Esq., www.berrylegal.com

Financial considerations security concerns are the most common issues that can result in the loss of, or inability to obtain, a security clearance. It is critical that when an individual runs into financial issues that they have counsel to assist and advise them with respect to the security clearance process.  In security clearance cases,  financial issues are generally referred to as Guideline F cases. In Guideline F cases,  the government’s concern is generally focused on how a person has handled his or her finances and/or his or her vulnerability to financial manipulation given a pattern of overspending or debt.  In one of our most recent articles, we mentioned that 3/4 of recent security clearance cases involving a financial consideration issue.  

The following are some 7 tips to help minimize the risk of losing a security  clearance involving financial considerations:

1. Pay your bills. Most security clearance clients seek our assistance when they have multiple bills that are past due, delinquent, in collections, or have been charged off. In Guideline F cases, the existence of multiple, unpaid debts seems to be the most typical reason for the loss or denial of a security clearance.  It is important to gain control of your finances in such situations in order to attempt to keep your security clearance.  

2. Pay/File your taxes. Individuals in tax trouble or who fail to pay and/or file their taxes risk losing their clearance. These tax issues tend to be viewed as more significant for security clearance purposes than regular debts. If outstanding taxes or tax liens are too much for the individual to pay off all at once, it is important to try to work out a plan with the IRS or state tax agency and show good faith towards resolving these debts in order to keep or obtain a security clearance.  The government takes a very skeptical view of a clearance holder or applicant that has not resolved their taxes.  

3. Monitor your credit report. Often times, an individual has encountered difficulties in the security clearance process because incorrect information is listed on his or her credit reports. In our experience, errors can be common, but can also lead to security clearance issues raised by the Government. It is important for an individual applying for or holding a security clearance to keep a close eye on his or her credit report for errors and potential problems.  If a debt is inaccurate, it is important for an individual to dispute the debt as soon as possible and keep records of all disputes and efforts to demonstrate that a debt does not belong to an individual.  

4. Do not run up significant debts and/or live beyond your means. Having too many debts can put an individual at risk of losing a security clearance. To the government, this can indicate that the individual is living beyond his or her means.

5. Work with creditors to attempt to resolve unpaid debts. It is always better for an individual to get ahead of his or her credit problems than to wait until he or she receives notice of a possible denial of a security clearance. An individual who recognizes a debt problem and works towards resolving it early and before a clearance issue is raised tends to be given more credit towards the granting of the clearance as opposed to an individual who starts the process after he or she receives notice of the potential loss of the clearance.  Even if a creditor is non-responsive, it is important to try multiple times to communicate with the creditor in an effort to resolve these issues.  

6. Consider credit counseling/ credit classes. If an individual falls behind in his or her debts, it is  still important to show how that individual is working to get back on a healthy financial track in order to alleviate concerns about the individual’s ability to hold a security clearance. Taking meaningful credit classes or engaging in credit counseling can help mitigate security concerns by showing affirmative steps taken by an individual to get better control over his or her finances.  

7. Report potential issues to security officer/investigator.  If and when major financial issues arise, it can be important to report them, in advance, to an individual's security officer. Doing so in appropriate situations can be evidence of mitigation for security concerns.  

When facing financial consideration security concerns it is important to have the assistance and advice of counsel.  We represent individuals in security clearance and other employment matters. If you need assistance with a security clearance issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook page.

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.

Social Media Information to be Used in Security Clearance Reviews

By John V. Berry, www.berrylegal.com

Under new legislation passed by Congress in December, 2015, federal agencies will begin focusing on social media information as part of the security clearance review process.  The new provisions were placed in a 2016 Omnibus appropriations bill (see Chapter 110—Enhanced Personnel Security Programs) by Congress.  Essentially, the new law adds these new requirements and also establishes a more intensive personnel security clearance program for federal agencies.

Social Media Information Sought

One of the key provisions in the new legislation requires that clearance adjudicators consider social media as part of the security clearance process.  The legislation does not specify how federal agencies should use, gather, and/or evaluate social media data that they obtain from clearance holders.  These rules will be forthcoming in the future.  The new provisions are likely in response to cases in the media where issues that could have been identified through social media might have led to suspended security clearances had authorities been aware of this information.  The new provisions may lead cleared employees to be more careful with the information that they post on social media websites such as Facebook, Twitter or Instagram.

Other Provisions of the New Security Clearance Law

The new law also requires that federal agencies establish plans for investigation of existing security clearance holders at least twice within a 5-year period.  Not many details were provided by Congress in the legislation regarding these additional checks, but it is expected that federal agencies will conduct automated or random checks of a clearance holder within this timeframe. The rules will likely be set for this process in the coming months by the Director of National Intelligence. The goal of the new legislation seems to be in moving to a more continuing process of evaluating eligibility for security clearances. 

The new legislation also requires that agencies seek more information regarding clearance holders, including from other public sources such as commercial and consumer reporting databases.  These new sources can include, but not be limited to, criminal, credit, and/or financial, watch lists and civil legal records.  The new law requires implementation of these changes to the security clearance process within the next five years.

Conclusion

When an individual is engaged in the security clearance 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.

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.

 

Using Witnesses 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 witnesses in security clearance proceedings. Because each federal agency generally has their own internal security clearance adjudication process, the use and availability of witnesses is not uniform through all federal agencies.  However, where applicable, the use of witnesses to support a security clearance appeal is recommended.  Many federal agencies permit witnesses at hearing or during personal appearances. 

Reasons to Have Witnesses

Typically, a security clearance hearing or personal appearance centers on the testimony of the clearance holder.  This is obviously the most important testimony that will be taken at the hearing or personal appearance.  However, there can be situations where it can be very helpful to have other witnesses testify.  There is also a balance that needs to be struck as to the number of witnesses to be called. For example, at a typical hearing before the Defense Office of Hearings and Appeals (DOHA), the usual number of witnesses we traditionally call ranges from 2 to 4.  It is important not to attempt to bring too many witnesses to a hearing if their testimony is duplicative.  If this occurs, the judge may be less inclined to hear all of them, or may attempt to eliminate testimony that is not relevant.  

The guidance typically given for the use of witnesses before DOHA, which is typical of the process used by many federal agencies is as follows:

“Each party is expected to be prepared to present at the hearing whatever evidence (testimonial or documentary, or both) that party intends to offer. In this regard, it should be noted that the Administrative Judge is not empowered by law to issue a subpoena. Thus, the appearance of witnesses or production of documents is purely voluntary, and is the sole responsibility oft he person intending to offer that evidence. The costs associated with the attendance of witnesses is also the sole responsibility of the party calling that witness. . . .

Witnesses will be sequestered (kept out of the hearing room while other witnesses are testifying) during the hearing, with the exception of the Applicant and any expert witnesses. The parties may have the assistance of any expert witness, selected and paid for by the party wishing to call the witness, during the course of the hearing. . . .

All witnesses are subject to cross-examination, or questioning, by the other party. The scope of cross-examination is not limited to the scope of the witness's direct examination. However, any cross-examination must cover issues that are material and relevant to the issues in the case or the witness's credibility. As a general rule, the parties will be allowed an opportunity to conduct one redirect examination and one recross-examination of a witness. The Administrative Judge may, in his or her discretion, question any witness."

Prehearing Guidance for DOHA Industrial Security Clearance Cases

Types of Witnesses for Security Clearance Hearings

There are generally 3 types of witnesses for use in a security clearance hearing or personal appearance.  The first type is a witness familiar with the underlying facts of one of the security concerns. Obviously, if there is a witness available that can support a clearance holder’s version of events, it is important to attempt to bring them to the hearing or personal appearance.  For example, suppose a security concern involves the allegation that the individual had been previously fired from his former employer and had not disclosed the information on the SF-86.  If a clearance holder is able to call his former supervisor to dispute this allegation it can go a long way towards mitigating the security concern.

The second and more common type of witness is the character witness.  These types of witnesses can be used for different purposes. Typically, in these types of clearance hearings it is important to call supervisors who may have had the opportunity to observe the clearance holder or applicant perform work in the past.  Supervisors can testify (among other areas) as to an individual’s loyalty, ability to follow rules, work performance or ability to manage classified information.  Other witnesses who have known the clearance holder or applicant for a long period of time, who can testify as to their character can be helpful as well.  For instance, a longtime friend that has known the clearance holder or applicant a long time might be able to testify to their character (whole person concept), background or other potential mitigating information.  For example, we have called former military colleagues of a clearance holder to testify about the individual's loyalty and ability to maintain classified information.

Third, an individual may decide to call an expert witness.  An expert witness can be useful, for instance, if there is a medical concern.  For example, there could a security concern involving a psychological condition that an expert witness (like a highly qualified medical expert) could address to support the clearance holder’s position that his medical condition does not disqualify him or her from holding a security clearance.    

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.

 

Security Clearances: The Duty to Self-Report Security Concerns

By John V. Berry, www.berrylegal.com

We are often asked by federal employees and government contractors about their duty to self-report security concerns when holding a security clearance.  Here are some things to consider when evaluating when and what to report.  In general, federal employees and government contractors holding a security clearance have a duty to self-report serious security concerns in a timely manner.  This duty to self-report tends to be pretty broad.  

The Duty to Report Security Concerns

Not reporting a security concerns can lead to a loss of a security clearance. As provided in guidance from an administrative judge at the Defense Office of Hearings and Appeals (DOHA), in ISCR Case No 01-26137 (2001), the concept of self-reporting is explained: 

“[I]t is the responsibility of security clearance holders to report events which negatively affect the status of the security clearance holder or the facility. As a general rule, any information under the National Industrial Program Operating Manual (NISPOM) that reflects adversely on the integrity or character of a security clearance holder, should be reported to security personnel to avoid compromising situations that make the security clearance holder vulnerable to coercion, exploitation, or duress.”

Id. at 1 (denying security clearance where clearance holder failed to self-report an arrest for driving under the influence until a year after the incident).  Furthermore, Department of Defense (DoD) Directive 5200.2-R, C9.1.4 (page 81) further spells out the responsibility of individuals holding security clearances to self-report security concerns.  DoD 5200.2-R, C9.1.4 provides that “individuals having access to classified information must report promptly to their security office . . . Any information of the type referred to in paragraph C2.2.1. or Appendix 8).  Appendix 8 contains the Adjudicative Guidelines.  The Adjudicative Guidelines are just the potential security concerns that can trigger a duty to report (e.g. foreign influence, psychological conditions, financial considerations, personal conduct). In sum, the duty to report is pretty broad.   

What is a Security Concern?

A security concern is an incident or potential incident that occurs which bears on one of these Adjudicative Guidelines for holding a security clearance. These apply to both government contractors and federal employees. Four (of many possible) examples follow of security concerns that should potentially trigger the duty to report.  

Ex. 1 - A clearance holder is arrested for theft by the police.  Criminal conduct falls under the Adjudicative Guidelines.  Once the individual is arrested, he or she should report the incident as soon as possible to his or her security officer or supervisor.  Alleged criminal conduct should be reported as early as possible.  One common mistake is to wait until the trial occurs to self-report.  

Ex. 2 - A clearance holder files for bankruptcy.  Because filing for bankruptcy bears on financial considerations under the Adjudicative Guidelines, the individual should report the filing as soon as possible to his or her security officer or supervisor.

Ex. 3 - A clearance holder marries a foreign citizen.  Because marrying a foreign citizen can bear on foreign influence and many other types of issues in the Adjudicative Guidelines, he or she should report the marriage as soon as possible to his or her security officer of supervisor.   

Ex. 4 - A clearance holder has become addicted to pain medications.  He or she has subsequently checked into a treatment facility for this addiction.  Because this bears on psychological fitness in the Adjudicative Guidelines, he or she should report the medical concern to his or her security officer or supervisor.

Each federal agency has similar but slightly different rules for self-reporting security concerns. Some federal agencies do not provide specific guidance. When in doubt it is usually advised that the federal employee or government contractor report the security concern given the significant risks of losing their security clearance for not doing so. We have seen a number of cases where individuals have been proposed for the loss of their security clearance for not promptly reporting security concerns.  

When to Report a Security Concern?

When a federal employee or government contractor who holds a security clearance determines that a security concern requires self-reporting, it is important to do so as soon as possible. The typical procedure for doing so is to notify one’s supervisor and/or their security manager of the security concern.  Even if details of a security concern are not yet fully complete, i.e. an arrest for possession of drugs, assault, DUI, etc. has occurred, but there has not yet been a trial, it is critical to report even the allegation as soon as possible.  Waiting until a trial has occurred to see if guilt is established, prior to reporting, can still be viewed as a security violation for delayed reporting.  

Additionally, the fact that a clearance holder has self-reported a security concern promptly can later often be used as a mitigating factor should the agency pursue a proposal to revoke one's security clearance.

What to Report?

Each type of security concern is different and there may be concerns over what to report.  The individual might also feel embarrassed to self-report.  If a federal employee or government contractor have questions about what should be reported, they should seek counsel for legal advice.  These employees may also speak to their security manager or supervisor.  For federal employees we often find that many supervisors are unaware of how security concerns should be reported and have to seek advice from within their agency (usually through security or human resources).  Enough information should be reported by the employee so that the security concern is fully explained.  For example, if an arrest has occurred, it may be important to provide a copy of the arrest, citation or other documentation. The agency will then expect the individual to provide updates as the matter is resolved.   

Further, the employee that self-reports a security concern should be as honest and straightforward as possible in providing the information.  Reporting a security concern inaccurately can lead to an allegation of dishonest conduct which can cause even more significant security concerns than the failure to self-report.  

Conclusion

When an individual is seeking advice about reporting a potential security concern to their security officer or manager, it is important to obtain legal advice.  Doing so can provide needed guidance that can be very helpful at the early stages of a security clearance inquiry.  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.

Security Clearances in Scattered Castles

By John V. Berry, Esq., www.berrylegal.com 

We often receive questions from employees about the different security clearance administrative systems in place by the federal government to evaluate clearance holders and the status of their security clearances.  There is more than one database that contains this type of information.  The principal 2 databases include the Joint Personnel Adjudication System (JPAS) and Scattered Castles. JPAS is clearly the more well known security clearance database, but both are significant.  These databases are used to evaluate potential employees, reciprocity (where available) and security access/certifications.  

Summary of Scattered Castles

Personnel who have access to Sensitive Compartmented Information (SCI) are listed in Scattered Castles.  Scattered Castles, however, is not linked to OPM's Central Verification System (CVS) because of intelligence community concerns about protecting classified information (i.e. the need to protect covert employees).  Scattered Castles, like JPAS, is a government database used by the intelligence community (CIA, NRO, etc) to record eligibility and access to classified information.  Basically, the database serves as the gatekeeper to the hiring / transfer process for intelligence community employees and contractors.  

Intelligence Community Policy Guidance, ICPG 704.5 (Oct. 2, 2008) governs the use of the Scattered Castles system.  ICPG 704.5 mandates the recognition, use and reciprocity of the Scattered Castles Database across all components of the intelligence community. See ICPG 704.5. The 3 page directive specifies the requirements of the Scattered Castles Database. The Scattered Castles database provides intelligence community agencies a combined database of individuals’ security clearance and accesses and essentially performs the same functions as the JPAS does for the Department of Defense.  While security clearances can be reciprocal through these different systems there can potentially be some difficulties in finding individuals through both databases and verifying their respective eligibilities.  In short, there can sometimes be communications difficulties between the two systems.  

Conclusion

When an individual is facing security clearance issues through Scattered Castles or JPAS, it is important to obtain legal advice and potential 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 http://facebook.com/BerryBerryPllc

The DHS Security Clearance Process

By John V. Berry, Esq., www.berrylegal.com 

The U.S. Government security clearance process is not centralized.  In addition to security clearances processed by the Department of Defense (DOD), many federal agencies have their own procedures and internal agencies that process their own security clearance decisions for federal employees (e.g. DOE, NRO, CIA, etc).  

The clearance system may become more centralized in the future, but it is important for federal employees to be aware of the differences in security clearance processes at their individual agency.  This article addresses the security clearance process at the Department of Homeland Security (DHS) for federal employees.

The Clearance Process at DHS

The security clearance process at DHS is somewhat similar to the procedures for DOD employees, but there are some differences.  The DHS clearance procedure is governed by Chapter 6 of DHS Instruction # 121-01-007 (starting at page 28).  The following are the  normal steps in the security clearance review process for DHS federal employees when security concerns arise.

Step 1: Notice of Access Suspension

When a DHS employee faces a security clearance issue that arises, the usual first step is for the DHS agency component (e.g. FAM, TSA, CBP) to issue the DHS employee a Notice of Access suspension, which basically suspends the employee's access to classified information.  In this letter, the DHS employee will likely be notified of the personnel security specialist handling the case and the fact that they will be notified of additional processing steps in the future when they become available.  

Step 2: Notice of Determination to Revoke

Following a review by DHS, the typical next step is for DHS to issue a Notice of Determination to Revoke Access to Classified Information (Notice of Determination).  This notice will list the security guidelines and basis for the clearance decision, which in form looks much like a traditional Statement of Reasons used at DOD and other federal agencies. The notice should put the employee on notice of the security concerns that should be addressed. The notice will also provide the employee with instructions for responding to the Notice of Determination and for requesting information related to the notice. If information is timely requested, the deadline for responding to the notice will normally be extended in order to provide time to obtain the documents sought prior to the next step.  

Step 3: Personal Appearance

Once the information sought is obtained, if the DHS employee elects to do so, they can request and  present an in person response (known as a personal appearance). During the personal appearance they can present documents in support of keeping their security clearance to the DHS hearing official.  These presentations typically take between 45 minutes to an hour and 15 minutes.  

Step 4: Appeal to the DHS Security Appeals Board 

Following the personal appearance, the hearing official at Step 3 will issue a Notice of Review determination either upholding the clearance denial or restoring the security clearance.  Following the notice of denial, the DHS employee will then be given the opportunity to provide an additional written submission to the DHS Security Appeals Board to appeal the adverse decision.  The decision of the DHS Security Appeals Board is typically the final step in the process.

Conclusion

When an individual is facing security clearance issues at DHS or in another organization it is important to obtain legal advice and potential 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 http://facebook.com/BerryBerryPllc