By John V. Berry, Esq., www.berrylegal.com
When an individual with a security clearance is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized once again, but at a higher level. For instance, if an individual has been previously approved for a Secret level clearance and is then submitted for a higher level Top Secret (TS) level clearance by their employer, that individual could be denied based on the same concerns that existed when he or she was previously approved for a Secret level clearance. This more frequently happens when an individual holds a Top Secret (TS) clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”
Clearance Upgrade Problems
One of the more common problems with security clearance upgrades occurs when an employer submits a request to upgrade an individual’s security clearance (e.g., from Secret to Top Secret). Sometimes the individual is made aware of the requested upgrade by the employer beforehand and sometimes he or she is not. It is important to note that it is possible that an individual can be approved for a lower level security clearance with existing security concerns, but that he or she can still be denied when an employer submits them for a security clearance upgrade even if there are no new security concerns.
As one example, suppose an individual is approved for a Top Secret security clearance by the Department of Defense (DoD), after mitigating some security concerns about a past criminal offense, and is then submitted for Sensitive Compartmented Information (SCI) access at an intelligence agency such as the National Security Agency (NSA). The NSA may consider the criminal issue more serious than the DoD, and then deny the person SCI access approval based on the same issues that were first resolved favorably when the individual applied for his or her Top Secret clearance. This upgrade denial can potentially have significant consequences to the individual.
Result of Unfavorable Upgrade Request
The result of a security clearance upgrade denial might be that the individual, at best, likely has to list the prior denial in future clearance applications, and at worst, could cause the individual to lose (or have to put in a defense) regarding his or her existing security clearance. Depending on the employer and federal agency involved, there are appeals processes to contest the clearance upgrade denial, but it is something to seriously consider if there are security concerns in one’s background and a clearance upgrade is proposed.
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. Individuals should consult with counsel if they have any security concerns at issue. If you need assistance with a severance agreement or other employment 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.