By John V. Berry, Esq., www.berrylegal.com
Psychological concerns can become an issue in security clearance cases for government contractors and federal employees. A mental health diagnosis can enter an individual’s life at any time. When a psychological issue arises in the context of applying for or attempting to retain a security clearance it is very important for the individual to seek legal advice and potential legal representation in order to enable the person the best opportunity to maintain or obtain their security clearance. The individual should retain a security clearance lawyer for this purpose.
Being diagnosed with a mental health illness does not mean that one cannot hold a security clearance. Many thousands of federal employees and government contractors retain their security clearances even if they have these types of medical issues. The government, in the last 10 years, has even been more accommodating than ever in loosening the standards for mitigation. The key, when the issues involve a security clearance, is to make sure that these medical conditions are under control and/or in remission. There are a number of security concerns relating to psychological conditions that can be potentially mitigated if the right evidence is presented.
Adjudicative Guideline I – Psychological Concerns
Guideline I of the Adjudicative Guidelines (contained within Security Executive Agent Directive 4) (SEAD 4) governs security clearance issues involving psychological conditions. Guideline I establishes the following security concerns about individuals with psychological conditions in Paragraph 27:
27. The Concern. Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline and an opinion, including prognosis, should be sought. No negative inference concerning the standards in this guideline may be raised solely on the basis of mental health counseling.
While too many different types of mental health conditions exist to list them all here, they can include Depression, Anxiety, Attention-Deficit/Hyperactivity Disorder (ADHD), Bipolar Disorder and Substance and/or Alcohol Use disorders. When we advise clients on these issues we do so with compassion and understanding.
How to Potentially Mitigate Psychological Concerns
In our security clearance practice, we often represent and advise individuals regarding their psychological concerns which arise in the course and scope of holding or seeking to obtain a security clearance. Usually, if a serious mental health condition is at issue, mitigation will require the assistance of an individual’s medical professionals in order to show that the psychological condition does not remain a significant security concern to holding a security clearance. Medical professionals are often very helpful to their patients in this effort.
Under SEAD 4, there are a number of potential mitigating factors for psychological conditions. There are listed in Paragraph 29:
29. Conditions that could mitigate security concerns include:
(a) the identified condition is readily controllable with treatment, and the individual has demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual has voluntarily entered a counseling or treatment program for a condition that is amenable to treatment, and the individual is currently receiving counseling or treatment with a favorable prognosis by a duly qualified mental health professional;
(c) recent opinion by a duly qualified mental health professional employed by, or acceptable to and approved by, the U.S. Government that an individual’s previous condition is under control or in remission, and has a low probability of recurrence or exacerbation;
(d) the past psychological/psychiatric condition was temporary, the situation has been resolved, and the individual no longer shows indications of emotional instability; or
(e) there is no indication of a current problem.
The following are examples of some of the potential mitigation arguments that can be made in security clearance cases involving psychological concerns, depending on the specific facts at issue.
1. Evidence which shows that a specific psychological condition is under control with ongoing treatment;
2. Evidence that demonstrates that an individual has demonstrated ongoing compliance with any and all medical treatment related to a psychological condition;
3. Evidence that the individual has entered counseling, therapy or other treatment program by administered by medical professionals;
4. Medically-based opinions issued by mental health professionals (psychiatrists, psychologists, counselors) which show that a psychological condition is under control;
5. Evidence that the psychological condition at issue was “temporary in nature” and/or no longer remains a current problem;
6. Evidence from family and friends showing that an individual has recovered from psychological conditions; or
7. Evidence that a previously treated mental health condition, which arose again, has since been remediated through changes in treatment.
Case Examples of Psychological Conditions Affecting Security Clearances
The following are summaries of sample cases involving Guideline I cases before the Defense Office of Hearings and Appeals (DOHA) involving psychological conditions. Many of these types of cases get resolved before the hearing process with the right medical documentation so the cases below represent some isolated cases, but provide some insight into the process:
1. ISCR Case Number 07-10169 (May 2010) (Applicant granted clearance where diagnosed with major depression, recurrent, moderate, without psychosis; dysthymic disorder history; panic disorder without agoraphobia; and generalized anxiety disorder. An administrative judge found that Applicant’s psychological conditions were under control and managed properly by Applicant’s physicians).
2. ISCR Case Number 09-02257 (Aug. 2010) (Applicant granted clearance while diagnosed with major depressive disorder, with administrative judge finding that Applicant’s medications were being properly managed and that the Applicant’s mental health had improved to the point where he was in remission).
3. ISCR Case Number: 12-00322 (Jan. 2014) (Applicant’s diagnosed psychological condition, bi-polar disorder, was not mitigated (and clearance was denied) due to the absence of current evidence from a mental health professional to corroborate his claim that he no longer needed medication or consultation);
4. ISCR Case Number 09-00318 (June. 2012) (Applicant’s history of non-compliance with medical treatment for diagnosed bi-polar disorder, resulting in judgment difficulties and behavioral problems causing hospitalization was not mitigated and clearance was denied);
5. ISCR Case Number 10-01525 (Mar. 2012) (Applicant mitigated the psychological conditions concern under Guideline I, as depression was in remission and no current problems existed. Applicant had previously suffered from episodes of depression in 2003, 2006, and 2009, but quickly overcame these bouts on his own (two being clearly related to outside stressors, including a divorce after 14 years of marriage)).
6. ISCR Case Number 10-06357 (Aug. 2015) (Applicant granted clearance where he mitigated psychological concerns as he had been sober since November 2011, he attended AA and had a sponsor. Applicant also sees his psychiatrist and therapist on a consistent basis and follows his treatment plan. The evidence showed that his prognosis was favorable).
7. ISCR Case Number 15-00097 (Apr. 2017) (Applicant’s security clearance denied where he did not intentionally provide false information during his background investigation, but a psychologist had diagnosed him with a delusional disorder and concluded that the “disorder does and will continue to interfere with his judgment, reliability, and trustworthiness.”)
8. ISCR Case Number 14-06894 (May 2018) (Applicant had been diagnosed in 2012 with bipolar disorder. He had briefly pursued treatment but did not follow through with it. Applicant began psychiatric treatment for his condition in September 2017, and his treatment continued through to the hearing. However, Applicant’s medical provider found that his mental condition was unstable and prognosis was presently unclear. The Administrative Judge held that more time was needed for the Applicant to demonstrate ongoing and consistent compliance with his treatment plan and denied the security clearance).
Each case involving Guideline I is different, but we have found that many cases can be mitigated with the proper attention to treatment and the preparation of documentation showing that any major psychological issue is under control.
When a government contractor or federal employee is in need of a security clearance lawyer for issues involving psychological concerns it is important to do so early in the process. 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 here and our Twitter account here.