Security Clearance Law Blog

Security Clearance Issues Arising Under Guideline H, Drug Involvement

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

In our Firm’s security clearance defense practice, one of the most common issues faced by Federal employees and contractors alike involves Guideline H, Drug Involvement.  When an individual comes to our practice to seek assistance in regards to their security clearance this is one of the most frequent issues that comes up.  Guideline H of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information involves issues that are sometimes difficult to face, let alone explain, such as prior illegal drug use, or issues with regards to the misuse of a prescription drug. 

Drug involvement issues are often raised by Federal agencies with respect to security clearance determinations and included within an individual Federal employee or contractor’s Statement of Reasons in denying a clearance.  These kinds of security clearance issues require a lot of planning on the part of the individual involved to explain prior illegal drug use/involvement or prescription drug abuse, so obtaining counsel is highly recommended. 

Guideline H, Drug Involvement – Defined

Guideline H is defined in the Adjudicative Guidelines as follows:

The Concern. Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.

(a) Drugs are defined as mood and behavior altering substances, and include: . . . marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances;

(b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

This definition used in the Adjudicative Guidelines is fairly general, but it is very important to be truthful with regards to any prior drug usage or prescription drug abuse.  Often times drug usage itself can be mitigated, and a clearance can be obtained, but if a Federal employee or contractor is caught being less than truthful with respect to prior drug usage it raises a significant possibility that the person will be denied a clearance for having not been fully truthful.  If one is denied a clearance on these grounds it makes it very difficult to obtain a security clearance in the future. 

Types of Conduct Under Guideline H, Drug Involvement, Which is Subject to Review

One of the most frequent questions that is asked about prior drug use or involvement is what type of conduct a Federal employee or contractor needs to be concerned about.  While there are many types of potentially disqualifying issues here, they generally can include:

(1)  Prior illegal drug usage;

(2)  Drug possession, distribution, processing, manufacturing, sale or possession of drug paraphernalia, etc.;

(3)  Testing positive for illegal drug use;

(4)  Any illegal drug use after being granted a security clearance; and

(5)  Receiving a diagnosis of drug abuse or dependence.

Some Security Clearance Defenses to Prior Drug Involvement

There are a number of mitigating circumstances (defenses) that one can raise with respect to security clearance cases involving drug involvement.  Raising these defenses through legal counsel can increase a Federal contractor or employee’s chances of obtaining or keeping their security clearance.  While there are many different types of defenses, some of the best mitigating defenses to allegations of drug involvement include:

(1)  The drug use or involvement, etc. was a long time ago or was infrequent that it does not cast doubt on the individual’s reliability, trust or judgment;

(2)  Following a period of drug involvement, the Federal employee or contractor is able to show that they have abstained from use or involvement for an appropriate period of time;

(3)  Any prior prescription drug abuse occurred a long time ago and/or had occurred following a serious illness and is now not an issue;

(4)  If the individual was associated with individuals involved in improper drug involvement that the person seeking the security clearance has disassociated themselves from these individuals;

(5)  The individual changes or avoids environments where drugs were previously used;

(6)  Successful treatment in a drug treatment program, for either illegal drug use or for the abuse of prescription medicine; and

(7)  If the issue involves the abuse of prescription medicine, the individual provides a favorable medical diagnosis by a qualified medical professional.

Closing Thoughts in Regards to Security Clearance Cases Involving Drug Involvement Under Guideline H.

In cases involving drug involvement under Guideline H, whether before a Federal employee’s Agency, DONCAF, DOHA or the Agency’s personnel security appeals board, it is important to be honest in responding to questions about drug involvement and usage.  It is also very important to make sure that one has a prepared explanation and evidence to support the explanation about prior drug involvement.  Often times there are many good defenses for prior drug usage or for prescription drug problems.  This is why it is very important for any individual that must respond to prior drug involvement to seek counsel to assist them. 

 

Security Clearance Guidelines and Defense for Federal Employees and Contractors Regarding Guideline G, Alcohol Consumption

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

Alcohol usage can be a major issue with gaining or keeping security clearances held by Federal employees and contractors.  Such determinations arise under Guideline G, Alcohol Consumption, contained within the Adjudicative Guidelines. Guideline G is the portion of the Guidelines involving an applicant’s use of alcohol and it’s impact on an individual’s ability to obtain or maintain a security clearance.

Guideline G issues usually come into play when a Federal employee or contractor has issues regarding the use of alcohol. The obvious concern by a Federal agency and the Defense Office of Hearings and Appeals (DOHA) is that excessive alcohol consumption can lead to the exercise of questionable judgment or the failure to control impulses, both of which are not considered not to be good for the purposes of access to classified information.

LEGAL ISSUES TO BE REVIEWED BY DOHA/PSAB IN ALCOHOL CONSUMPTION CASES

When issues arise involving alcohol use/consumption, in the scope of a security clearance examination or review, it is very important to take them seriously and to obtain legal counsel familiar with these types of issues in order to minimize the potential damage to a security clearance. When alcohol issues are reviewed in regards to security clearances cases, they fall under Guideline G, Alcohol Consumption, which reads as follows:

Guideline G: 
Alcohol Consumption

The Concern. Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. Conditions that could raise a security concern and may be disqualifying include: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (d) diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence; (e) evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program; (f) relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program; (g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.

Conditions that could mitigate security concerns include: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; (b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); (c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; (d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.

TIPS IN HANDLING SECURITY CLEARANCE CASES INVOLVING ALCOHOL CONSUMPTION

In security clearance cases involving Guideline G, Alcohol Consumption, it is very important to understand just how critical it is to demonstrate that the Federal employee or contractor involved understands (and is able to admit where appropriate) the alcohol issues that they face (or have faced) and have taken action to seek help or obtain guidance. The best strategy for success in these types of alcohol cases (ex. prior arrest for alcohol traffic incidents) is to show that the applicant has handled the issues in a responsible manner and that enough time has transpired to mitigate the security concerns associated with the perceived or actual alcohol usage.

Alcohol consumption cases can involve many differing types of variables and a number of mitigating factors specific to each case so hiring counsel to represent and advise the person involved is critical because each case is different.

Security Clearance Issues Arising Under Guideline F, Financial Considerations

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

A good example of one of the major issues faced by federal employees and federal contractors with respect to security clearance cases involves issues arising under Guideline F, Financial Considerations.   Guideline F is the portion of the Adjudicative Guidelines which involve financial considerations and their impact on an individual’s ability to maintain a security clearance. 

Guideline F issues usually come into play when a federal employee or contractor has build up significant debts or is overextended in their ability to make monthly debts.  The obvious concern with these types of cases is that an individual may be more vulnerable to foreign or other influence if they are in financial debt or cannot meet their bills. 

This type of case is best illustrated by a recent ruling of the Defense Office of Hearings and Appeals (DOHA), in ISCR Case No. 10-040008 (DOHA Jan. 31, 2011) issued in late January, 2011.  In this case, DOHA Administrative Judge Carol Ricciardello reviewed a security clearance denial that involved a federal contractor who had run into difficulties under Guideline F, Financial Considerations. 

CASE BACKGROUND

In particular, the case (ISCR Case No. 10-040008) at issue involved a federal contractor that had gotten into security clearance difficulties when a close family friend had sought the contractor’s help in co-signing for a mortgage in order to help them qualify for the home purchase.  The contractor ultimately agreed to help out the family friend, on a temporary basis, in order to help them secure the mortgage.

Unfortunately, the family friend experienced financial difficulties after a number of months and was unable to make payments on the home, causing the federal contractor to become liable for making these payments.  Eventually, the contractor had to assume full responsibility for the close family friend’s financial obligations.  This, ultimately, led to having to sell the home through a short sale, and ultimately a dispute between the contractor and the mortgage company about the amount that she owed.

The federal contractor eventually received a Statement of Reasons (SOR), relating to the disputed debt owed to the mortgage company as she attempted to negotiate a settlement with the creditor.  The case eventually was assigned to the DOHA and an administrative judge was assigned to hear it.  The federal contractor had sought the restoration of her clearance. 

LEGAL REASONING BY JUDGE IN GRANTING CLEARANCE

The Administrative Judge, in granting the federal contractor’s security clearance, made several key observations about her actions in the case, which are important to note by others facing issues under Guideline F, Financial Considerations.   The positive factors in the case that mitigated the concerns regarding the federal contractor’s security clearance included:

    * That the contractor had a record of paying her bills on time;

    * That the contractor had a record of keeping a savings account;

    * That the contractor had kept up the funding her retirement accounts;

    * That despite the fact that she was attempting to help a family friend, and that the mortgage was not for her own home, that she assumed the debt and took full responsibility for the matter;             

    * That the contractor was financially solvent and lived within her means;                       

    * That the contractor had a provided evidence to show her good character and honesty;

    * That despite the difficult situation that the contractor faced, that the contractor attempted to confront the issues head on and acted with responsibility.

LESSONS TO TAKE FROM CASE

In security clearance cases involving Guideline F, Financial Considerations, it is very important to understand just how critical it is to demonstrate that the federal employee or contractor involved has been responsible regarding their finances or has made specific changes in their conduct to eliminate any future security concerns.  In this case, the contractor was able to demonstrate this in the hearing process before the Administrative Judge and thereby obtain her security clearance. 

These cases can involve many differing types of variables and a number of mitigating factors specific to each case so hiring counsel to represent and advise the person involved is critical because each case is different. 

The Significance of the Statement of Reasons in Security Clearances Cases

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

One of the most important considerations that our law firm evaluates in respect to our Security Clearance practice involves what is known as the Statement of Reasons.  The Statement of Reasons or SOR is the centerpiece of a security clearance case for federal employees and contractors.

THE STATEMENT OF REASONS – GENERALLY

In essence, the Statement of Reasons is the core of the security clearance process for federal employees and contractors. The Statement of Reasons is the legal equivalent to the filing of a civil complaint in regards to civil issues; it is the center of the case prepared against an individual in regards to their security clearance. 

Typically, for federal employees the SOR or Statement of Reasons is issued following the origination of the security clearance concern from the local security office. The Statement of Reasons, for federal employees, will then be issued, usually by the relevant agency’s central adjudication facility (CAF). The Statement of Reasons will usually be attached to a cover letter, referencing an agency’s intent to revoke eligibility for an individual’s security clearance. In contractor cases, the SOR is issued by DOHA.

The Statement of Reasons will then list the factual concerns upon which the security clearance issues have arisen and the security guidelines which are involved.  The following is an example of a Statement of Reasons issued for a federal employee:

_________________________________

SAMPLE STATEMENT OF REASONS

Here is an example of the core substance of a sample Statement of Reasons, for a federal employee:

Subj:             INTENT TO REVOKE ELIGIBILITY FOR SECURITY CLEARANCE AND ASSIGNMENT TO A SENSITIVE POSITION, MS. JOANNA JAMES,

SSN:            XXX-XX-1234

STATEMENT OF REASONS

Security Guideline(s):  FINANCIAL CONSIDERATIONS

2 Feb 11            You were issued a Letter of Intent to Suspend Access to Classified Information from DOD Installation ABC for alleged discrepancies with regards to allegations that you misused your government credit card to pay for personal expenses on 12 December 10.

Applicable Personnel Security Guidelines

The following are excerpts of the personnel security guidelines cited in reference (b), which are relevant to your case.  Each guideline contains both disqualifying and mitigating factors.

FINANCIAL CONSIDERATIONS

The Concern. Failure or inability to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts.

_________________________________

RESPONDING TO THE STATEMENT OF REASONS

Once an individual receives a Statement of Reasons, the key for a successful defense involves being able to successfully refute the factual allegations or to mitigate them.   That process begins with hiring an attorney to assist the individual in their response.   In the example above, the first step as an attorney might be to determine from the individual whether the allegation itself was valid, i.e. that the government credit card was used for the personal expenses alleged (sometimes mistakes are made in prepare SORs). 

Next, if it is determined that the individual’s government credit card was used by the individual employee for his/her personal expenses, the next question as an attorney might be to find out what mitigating factors could be helpful in explaining why the person involved should still be granted a security clearance.  To do this, one must review the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.  For instance, there may be an argument that the expenses were really authorized by his agency, or that perhaps there was confusion about whether the expenses were in fact authorized which might serve mitigate the security concerns.  Another potential helpful factor might be whether or not the employee immediately paid the government credit card right away, reported the charge to supervisors ahead of time, etc. 

The key to responding to the Statement of Reasons or SOR is to start with the factual allegations, make a full synopsis of all facts involving the allegation and review the potential mitigating factors in such cases. It is at that point that the attorney can begin preparing an effective response to the SOR. 

CONCLUSION

The SOR is the cornerstone of any security clearance case for a federal employee or contractor.  Any security clearance defense case must begin with a comprehensive review of the SOR.  From that point, an attorney can began to establish a strong defense for the client.  Security clearance cases are unique and require the advice and assistance of an attorney.  

 

DOHA Personal Appearance Tips in the Context of Security Clearance Appeals

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

A topic that often comes up in our law firm’s security clearance practice involves the issue of how to best prepare for an upcoming personal appearance before the Department of Defense, Defense Office of Hearings and Appeals (DOHA).  While the topic could cover several chapters, I have assembled a few observations in the process from our practice our this area of law. 

Keep in mind that it is important to obtain an attorney familiar with security clearance practice to best assist individuals approaching a personal appearance.  Counsel can best advise an individual in how to prepare and present their cases in order to give the best possible opportunity for a successful outcome. 

THE DOHA PERSONAL APPEARANCE PROCESS

When you receive a notice that your security clearance matter has been scheduled for a personal appearance before an DOHA Administrative Judge, there are a number of immediate issues that must be addressed in order to prepare for this very important presentation.    It is important to realize that the Administrative Judge will have access to the entire case file of documents and information that was reviewed and/or considered by the Central Adjudication Facility in making their earlier adverse determinations with regards to an individual’s security clearance.

Therefore, the key in preparing for one’s personal appearance is for the individual presenting their matter before the DOHA Administrative Judge to not just repeat earlier arguments made below, but to do their best to exhaustively present any and all other materials and/or witnesses that have not yet been reviewed in order to give one the best chance of obtaining a positive result.   

SOME DOHA PERSONAL APPEARANCE BASICS

As an individual prepares for their personal appearance, it is important to understand some of the dynamics behind the personal appearance hearing.  Some of these dynamics include the following facts about the hearing:

1. Hire an attorney experienced in security clearance cases to represent you in your case;
2. The DOHA hearing may take place with or without Department attorneys present;
3. The DOHA personal appearance proceedings are transcribed by court reporter;
4. The DOHA personal appearance will begin in earnest with the questioning of witnesses brought in support of the individual seeking the security clearance;
5. Following other witnesses, the individual seeking their clearance will testify (which is why I highly recommend utilizing counsel in these types of cases);
6. Following the initial testimony of witnesses, either the DOHA Administrative Judge or the Department’s attorney may question the witnesses;
7. The individual seeking the clearance (usually their attorney) may offer a closing argument in support of their clearance;
8. Individuals may be permitted to supplement the hearing record if a witness is not available on the day of hearing; and
9. The Administrative Judge, following the closing of the record, will issue a recommended decision in support of or arguing against the granting of a security clearance. 

AN OUTLINE OF TIPS FOR THE DOHA PERSONAL APPEARANCE PROCESS

Here are some practices that we follow in our security clearance practice as we handle security clearance proceedings at DOHA.

1.         Preparation: One of the key aspects of the personal appearance is to thoroughly prepare for the hearing.  A DOHA hearing must be well planned out in advance.  If the personal appearance is not thought out and well executed, the Administrative Judge could become frustrated with the presentation which is not something that is helpful in obtaining a positive ruling.

2.         Exhibits: Exhibits to support one’s case at a personal appearance are highly recommended. It is very important to gather as much evidence and/or documents in support of your security clearance matter as possible.  If a written statement is to be submitted on behalf of an individual at a DOHA proceeding, it should be notarized where possible (or possibly in the form of a declaration) as these will be given more credence than those that are not sworn. 

3.         Witnesses:   Make sure that all witnesses for the DOHA appearance are ready and prepared to testify before the Administrative Judge.  These individuals can include co-workers, supervisors, doctors, specialists, and others whose testimony may go to the issue of granting an individual’s security clearance. 

CONCLUSIONS

In sum, DOHA personal appearances are perhaps the most important part of the security clearance review process and should be treated as such.  Despite any indications that the process can be undertaken by individuals without counsel, I have found that to be an extremely unwise course of action which can have devastating circumstances.  Anyone facing a DOHA personal appearance should make the most of the opportunity to present a strong case in favor of the granting of a security clearance.