Federal Employment and Security Clearance Issues

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

For federal employees, the ability to obtain or maintain a security clearance, for certain positions can be critical with respect to maintaining their federal employment. If a federal employee is required to have access to classified information, then they must be eligible for a security clearance in order to keep their position. This article discusses the connection between security clearance and those employed by the federal government.

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DOHA Clearance Hearings Explained

By John V. Berry, www.berrylegal.com

If you are a federal employee or government contractor whose security clearance is under review and you are in the process of having your case heard before the Defense Office of Hearings and Appeals (DOHA), there are a number of considerations that should be made before you move forward to the hearing phase.

Before DOHA, an applicant or re-applicant for a security clearance should be well prepared, in advance, to present their case at the hearing. It is often the case that individuals come unprepared for a DOHA hearing and walk away feeling less than confident about the outcome. Having legal counsel represent you in this forum is highly advised.  Below are some considerations that our law firm takes into account when representing federal employees and federal contractors as they approach the hearing stage at DOHA before an administrative judge.

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7 Clearance Investigation Tips

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

Many federal employees and government contractors are required to apply for and maintain security clearances. In some cases, the security clearance application process is straightforward. However, if problems arise or potential issues develop, they are typically discovered when the employee or government contractor is about to complete his or her security clearance application through e-QIP or the government’s Standard Form 86. If possible, you should seek the advice of an experienced attorney who handles security clearance matters since each case is different. The following are some general guidelines.

     1. Take time and answer security clearance forms carefully

This is one of the most important tips. Individuals often receive clearance denials because they did not adequately read the questions asked or proofread their responses on the e-QIP/SF-86 application prior to submission. In some cases, if an individual does not take the time to read the question and answers “No,” when they should have answered “Yes,” to a question, a clearance investigator might conclude that the individual was attempting to be dishonest. This is important to understand as such an oversight can be very detrimental to obtaining or keeping a security clearance. Therefore, it is very important to carefully complete the security clearance application before submitting it.

   2. Be honest during the application and investigation process

This recommendation cannot be overstated. Individuals should be honest in all aspects of the clearance process. When an individual is dishonest during the clearance process, it could not only potentially bar the individual from receiving a security clearance, which would remain on his or her clearance record, but it could also raise a host of other legal issues, including potential criminal issues.

It is much easier for a security clearance attorney to mitigate security clearance concerns involving financial, psychological, prior drug or alcohol usage issues than defend against an allegation involving truthfulness in the clearance application or interview process. An applicant should consult with a security clearance attorney for legal advice if there are any possible criminal disclosures or issues. Depending on the factual circumstances involved, we may advise that it is better to wait to apply later for a clearance rather than go through the process right now.

   3. Review documents in advance

Take the necessary time to gather and review relevant documents related to any potential security clearance problem in advance. Taking this step will help an individual in two ways: (a) it will help an individual remember all the details of the potential security concern, such as an arrest or bankruptcy filing that occurred three years ago, in preparation for answering questions; and (b) the documentation may help to mitigate the security concerns later, if necessary.

   4. Prepare for the investigative interview

If an individual believes that there is a good chance that problem areas exist in a security clearance application, he or she should expect to be asked about these areas by the assigned investigator. The investigative interview can vary in duration from an hour to several hours depending on whether significant security concerns exist. Early preparation for the security clearance interview can help minimize any problem areas. Unfortunately, many individuals go into the interviews without thinking about or preparing for the issues that could arise and often provide incomplete information. Interview preparation can also help the individual’s confidence when meeting with the investigator to explain application responses that raise any security concerns.

   5. Don’t react defensively to security clearance questions

Refrain from reacting defensively when asked by an investigator about potential security concerns in a security clearance application. It is important to be calm and positive about the issues when speaking to an investigator. In addition, arguing with an investigator will never benefit an individual since the investigator can have significant influence over the application process in the initial stages.

   6. Be courteous and professional with the investigator

It is important for all applicants to treat the investigator with professionalism. If an investigator attempts to contact you, be timely and courteous in your response. Even if it is inconvenient to meet or return calls, not doing so could be detrimental. Promptly responding to the investigator can give the investigator a positive impression, especially if the investigator will be providing a recommendation regarding your ability to obtain or retain a clearance.

   7. Be patient during the security clearance process

It is very important to understand that the security clearance process can often take a several weeks to a few months to complete depending upon a number of factors, including: (a) whether the individual is a federal employee or government contractor; (b) the number or significance of the security concerns; (c) delays in obtaining responses from federal agencies in seeking an investigative file; (d) the general investigative backlog; and (e) the specific employer involved.  There are many other considerations that can also delay adjudication so it is important to remain patient during the investigation.

Conclusion

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 like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

Alcohol Issues in Security Clearance Cases

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

Case Summaries Involving Guideline G Cases where Clearance Was Granted

Example A:  Security clearance applicant was 34 years old and had a history of alcohol-related incidents before being diagnosed with alcohol dependence in 2006. Following alcohol treatment in 2006, he abstained from alcohol consumption for 5 years before resuming infrequent use. The applicant was found to have recommitted himself to total abstinence, was found to attend Alcoholics Anonymous, and had a sponsor to help him work on alcohol issues. Applicant was found to have mitigated the security concerns under Guideline G, alcohol consumption and his security clearance was granted.  For the entire case, please click here.

Example B: Security clearance applicant was 54 years old and had 3 alcohol-related incidents from 1984 to 2000. Following that time period, he had abstained from alcohol use from 2001 to 2009, a period of about 8 years. Subsequently, he had resumed responsible alcohol use without any problems, consisting of 1-2 beers after work, but not daily. Further, there was no evidence of any alcohol-related incident for the past 15 years. The Administrative Judge found that the individual had provided sufficient evidence to mitigate the security concerns under Guideline G and granted the security clearance.  For the entire case, please click here.

Example C: Security clearance applicant was 45 years old and had issues with alcohol dependence over his life. Applicant was found to have taken seriously the fact that he was an alcoholic and had to completely abstain from alcohol. The individual also presented evidence that he regularly attended Alcoholics Anonymous and also that he had a strong support network. The Administrative Judge found that the applicant was earnest in his efforts at recovery and had mitigated the security concerns under Guideline G, alcohol consumption and granted the individual’s security clearance.  For the entire case, please click here.

Things to Consider for Alcohol Cases Under Guideline G

In security clearance cases involving Guideline G, Alcohol Consumption, it is very important to understand just how important it is to demonstrate that the individual understands and acknowledges (where appropriate) their alcohol issues and concerns.  Denying a known alcohol problem only makes mitigation more problematic. It cannot be overstated that security clearance adjudicators take alcohol concerns seriously. Absent significant evidence of rehabilitation or other efforts, it can be hard to keep or obtain a security clearance.

Here are 14 items (not a full list, which is too long to list here) that we often consider when handling Guideline G cases:

 

Financial Concerns For Security Clearance Holders

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

One of the most often raised issues in security clearance cases involves the issue of financial concerns for a federal employee or government contractor.  The majority of security clearance cases, by far, involve this issue.  This type of security clearance case falls under Guideline F, Financial Considerations of the new June 2017 Adjudicative Guidelines contained in Security Executive Agent Directive 4.   Guideline F is the section of the Adjudicative Guidelines which involve financial considerations and provides the basis to evaluate their impact on an individual’s ability to maintain a security clearance.

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DOHA Security Clearance Tips

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

A frequent topic that comes up in our law firm’s security clearance practice involves the issue of how to best prepare for an upcoming personal appearance or administrative hearing before the Department of Defense, Defense Office of Hearings and Appeals (DOHA). While the topic could be covered in an entire book on the subject, we have put together a few observations in the process from our practice our this area of law.

It is very important to retain a lawyer familiar with the DOHA process. This is critical.  An attorney familiar with DOHA processes 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.

How a Case Gets Scheduled for a DOHA Hearing

Typically, a case gets scheduled for a hearing before a DOHA Administrative Judge following a response to a Department of Defense Consolidated Adjudications Facility (DoD CAF) Statement of Reasons, the individual’s response to the SOR (and their request for a hearing). If a case is not resolved with the individual’s response, then the matter will be scheduled for an administrative hearing.  Usually, the attorney representing the individual  will be notified of the pending hearing and will be asked to correspond with the government’s attorney to schedule the hearing date.

DOHA Personal Appearance Process

When you receive a notice that your security clearance matter has been scheduled for a hearing 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 DoD CAF 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. Character evidence can be extremely important

DOHA Personal Appearance Considerations

Here are some practices that we follow in our security clearance practice as we handle security clearance proceedings before DOHA during the administrative judge process.

1. Hearing Preparation: One of the most important aspects of the personal appearance is to thoroughly prepare for the administrative hearing. A DOHA hearing must be well planned out in advance. The applicant for the security clearance should be prepared to answer questions about the issues involved in the case. It is very important that that applicant also be prepared for potential cross-examination questions by government counsel.

2. Exhibits: Exhibits to support an individual’s case at a personal appearance are highly recommended and necessary. It is very important to gather as much evidence and/or documents in support of the individual’s security clearance matter as possible. If a written reference 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. Government Exhibits: It is important to also be familiar with all of the government’s exhibits in preparation for the hearing.  The most typical exhibit for the government will be the personal interview and/or the previously completed SF-86. It is important for the applicant or clearance holder to be familiar with their prior submissions in preparation for cross-examination. One of the most frequent questions is whether or not the individual agrees or disagrees with any statement made in the personal interview.

4. Witnesses: It is important to ensure that all witnesses for the DOHA appearance are present, ready and prepared to testify before the Administrative Judge. These individuals can include fact witnesses, co-workers, supervisors, doctors, specialists, and others whose testimony may go to the issue of granting an individual’s security clearance. In our experience, administrative judges tend to take character witnesses seriously in close cases.

Conclusion

In sum, DOHA hearings are perhaps the most important part of the security clearance review process for DOD contractors and federal employees and should be treated as such. Despite any indications that the process can be undertaken by individuals without an attorney, I have found that to be an extremely unwise course of action which can have adverse circumstances. Anyone facing a DOHA administrative hearing should make the most of the opportunity to present a strong case in favor of the granting of a security clearance. If you need assistance with a security clearance case, please call us at (703) 668-0070 or contact us at www.berrylegal.com or through this page.

What is a Statement of Reasons (SOR)?

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

We are often asked what is a Statement of Reasons (SOR) in the context of a security clearance matter.  A SOR is merely the basis for government security concerns about holding a security clearance.  Generally, an SOR lists specific issues of concern under the Adjudicative Guidelines. The concerns listed in an SOR, if left unaddressed, will likely lead to the loss of a security clearance.  We thought that we would provide a sample of what an SOR looks like for a government contractor.

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