By John V. Berry, Esq., www.berrylegal.com
Criminal issues that arise for security clearance holders or applicants are fairly common. This is regulated by Adjudicative Guideline J of the rules governing security clearances. This article discusses the issues that many individuals face when they have been involved in a criminal issue in the context of a security clearance.
Criminal Issues Arise for Cleared Employees or Applicants
Criminal issues, depending on their severity, can have a major impact on a security clearance. Security concerns regarding this issue arise under Adjudicative Guideline J, Criminal Conduct of Security Executive Agency Directive (SEAD) 4. Adjudicative Guideline J is the portion of SEAD 4 which involve a clearance holder or applicant’s involvement in criminal activities and the individual’s ability to obtain or maintain a security clearance.
Guideline J issues usually come into play when a federal employee, military employee or government contractor is arrested. If an individual is arrested and holds a security clearance it is important to obtain legal advice immediately because there are some immediate issues that must be dealt with. For instance, it may be necessary to self-report the incident to your security officer. The clear concern for federal agencies that evaluate security clearances is that criminal issues can mean that an individual has used questionable judgment which is not considered acceptable for purposes of access to classified information.
Security Concerns Raised by Criminal Issues
When issues arise involving criminal matters, in the scope of a security clearance investigation or review, it is very important to take them seriously and to obtain legal representation experienced with these types of issues in order to minimize the potential damage to a security clearance or otherwise mitigate the security concerns. When criminal issues are reviewed in regards to security clearances cases, they fall under Guideline J, Criminal Conduct, SEAD 4, which reads as follows:
Guideline J: Criminal Conduct under SEAD 4
The Concern. Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules, and regulations. Conditions that could raise a security concern and may be disqualifying include:
(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness;
(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted;
(c) individual is currently on parole or probation;
(d) violation or revocation of parole or probation, or failure to complete a court-mandated rehabilitation program; and
(e) discharge or dismissal from the Armed Forces for reasons less than “Honorable”.
Conditions that could mitigate security concerns include:
Under Paragraph 32 of SEAD 4, there are 4 mitigating factors provided to mitigate security concerns involving criminal conduct. These are:
32. Conditions that could mitigate security concerns include:
(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment;
(b) the individual was pressured or coerced into committing the act and those pressures are no longer present in the person’s life;
(c) no reliable evidence to support that the individual committed the offense; and
(d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.
Examples of Criminal Conduct Issues that Might Arise
There are numerous types of criminal issues that could cause security clearance issues. It is important to be aware of them. Early action in responding to these issues is the best strategy to protect a security clearance. Some examples of criminal conduct issues that may trigger Guideline J include:
1. An arrest (any type, DUI, assault, etc.);
2. A domestic violence or protective order;
3. Being charged with a crime; or
4. Being notified of a potential criminal investigation into conduct
Things to Consider for Criminal Cases Under Guideline J
In security clearance cases involving Guideline J, Criminal Conduct, it is very important to understand just how important it is to demonstrate that the individual understands and acknowledges (where appropriate) the security issues and concerns. It doesn’t help to get defensive in explaining prior criminal conduct. It is more important to explain how the individual has learned from prior mistakes. Each case is unique, so outcomes and potential mitigation in such cases will vary from case to case. Keep in mind that criminal cases under Guideline J can also lead to Suitability and Debarment cases.
9 Considerations in Criminal Conduct Cases
Here are 9 items (not a full list, which is too long to list here) that we often consider when handling Guideline J cases:
- How long ago was the last issue involving criminal conduct?
- Did the criminal conduct result in a conviction?
- Did the criminal conduct result in a plea deal to a lower charge?
- Were there any unique circumstances that caused the criminal issues?
- Has the individual matured since the criminal conduct occurred?
- Is there evidence that the criminal conduct did not occur?
- How has the individual involved in criminal conduct changed their life?
- What is the likelihood that criminal issues will happen again in the future?
- Who can testify about either the facts involving the criminal conduct?
Criminal conduct issues in security clearance cases under Guideline J can involve many differing types of variables and a number of mitigating factors specific to each case so hiring experienced counsel to represent and advise the individual involved is critical because each case is different.
Contact Us
In sum, when facing criminal conduct issue involving your security clearance, it is very important to have experienced counsel. If you need assistance with a security clearance case, please call us at (703) 668-0070 or contact us at www.berrylegal.com.
BERRY & BERRY PLLC 