Changing Jobs While Holding a Security Clearance

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

One of our major practice areas involves the representation of government contractors and federal employees in security clearance law matters.  We frequently speak to employees who have issues or concerns relating to their security clearances and are seeking a new position elsewhere.  We decided to put together some tips for employees that are changing positions in the context of holding a security clearance.

This article discusses the issues of changing jobs and offers some tips for employees about to leave their current employment and who are seeking a new cleared position.

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Sexual Behavior and Security Clearances

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

Typically, a very private subject, sexual behavior issues, can become a very big issue in security clearance cases for government contractors and federal employees. This article discusses the issue of Guideline D, Sexual Behavior, which involves security concerns associated with sexual behavior which can lead one to lose (or not obtain) a security clearance.

Sexual behavior concerns can come up in many different ways in the context of a security clearance. It is a very sensitive subject for many individuals and we do our best in our law firm to treat the issue with empathy and the confidentiality it requires. Many federal employees and government contractors retain their security clearances even if they have been alleged to have sexual behavior issues.

The key, when the sexual behavior issues involve a security clearance, is to make sure that the sexual behavior security concern is no longer an issue. Sexual Behavior issues under review by a security clearance adjudicator can be mitigating in a number of ways.

Adjudicative Guideline D – Sexual Behavior

Guideline D of the Adjudicative Guidelines (contained within Security Executive Agent Directive 4) (SEAD 4)) governs security clearance issues involving psychological conditions. 

Specific Security Concerns of Clearance Adjudicators

Guideline D establishes the following security concerns about individuals with psychological conditions in Paragraph 12:

12. The Concern. Sexual behavior that involves a criminal offense; reflects a lack of judgment or discretion; or may subject the individual to undue inf1uence of coercion, exploitation, or duress. These issues, together or individually, may raise questions about an individual’s judgment, reliability, trustworthiness, and ability to protect classified or sensitive information. Sexual behavior includes conduct occurring in person or via audio, visual, electronic, or written transmission. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.

While there are too many different types of sexual behavior issues that could subject an individual to scrutiny to list them all here, they can include undisclosed affairs, the hiring of a prostitute, viewing of illegal pornography or issues involving massages. When we advise clients on these sensitive issues we do so with compassion and understanding. Frankly, we think that this area is too personal for investigators to delve into, but they do, so we try to advise clients accordingly to give them the best chance of obtaining or maintaining their security clearance.

How to Potentially Mitigate Sexual Behavior Concerns

In our security clearance practice, we often represent and advise individuals regarding their sexual behavior concerns which arise in the course and scope of holding or seeking to obtain a security clearance.  Usually, if a serious sexual behavior issue is under review, mitigation can require the individual to demonstrate that the condition does not remain a significant security concern to holding a security clearance. The topic is pretty wide so the mitigation depends on what type of conduct is at issue. For instance, if the matter involves an extramarital affair, spousal knowledge can help or commitment to counseling can be of assistance. There are many different types of mitigation.

For cases involving paying for sexual services, counseling may need to be shown, or a demonstration that the issues are older in nature and do not indicate who the person is today.

Specific Mitigating Factors for Sexual Behavior Concerns

Under SEAD 4, there are a number of potential mitigating factors for psychological conditions. These are listed in Paragraph 14 of SEAD 4:

14. Conditions that could mitigate security concerns include:

(a) the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature;

(b) the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or judgment;

(c) the behavior no longer serves as a basis for coercion, exploitation, or duress;

(d) the sexual behavior is strictly private, consensual, and discreet; and

(e) the individual has successfully completed an appropriate program of treatment, or is currently enrolled in one, has demonstrated ongoing and consistent compliance with the treatment plan, and/or has received a favorable prognosis from a qualified mental health professional indicating the behavior is readily controllable.

The following are examples of some of the potential mitigation arguments that can be made in security clearance cases involving sexual behavior concerns, depending on the specific facts at issue.

1. Evidence which shows that the sexual behaviors described are not as bad as portrayed and that they occurred some time ago;

2. Evidence that demonstrates that the individual has sought counseling for any improper sexual behavior and has successfully completed treatment;

3. Medically-based opinions issued by mental health professionals (psychiatrists, psychologists, counselors) which show that the alleged sexual behavior is no longer an issue or is a matter under control;

4. Evidence that the individual cannot be coerced or blackmailed over the sexual behavior in question; and

5. Evidence from family and friends showing that an individual’s character overcomes the sexual behavior issues cited.

Case Examples of Sexual Behavior Issues Affecting Security Clearances

The following are a few case summaries of security clearance matters involving Guideline D, sexual behavior, before the Defense Office of Hearings and Appeals (DOHA). These few examples provide a sample of the types of cases that are involved under Guideline D:

1. ISCR Case Number 18-00757.h1 (Dec. 2018) (Applicant paid for sexual services with prostitutes at least 6 times between 1987 and 2015, at times while holding a security clearance, and once while the individual was assigned overseas. The information he presented to support his claims of rehabilitation was not sufficient to mitigate the security concerns his conduct raised about his judgment and his security clearance is denied);

2. ISCR Case Number 15-00853.h1 (Oct. 2018) (During college about 15 years ago, Applicant inadvertently downloaded and viewed a single image of child pornography. He deleted the image. The allegation that he downloaded multiple such images was not established. Applicant’s conduct did not constitute sexual behavior under Guideline D. Applicant mitigated resulting security concerns cross-alleged under Guideline E, personal conduct. Applicant’s eligibility for access to classified information was granted);

3. ISCR Case Number: 14-05391 (Dec. 2015) (Applicant’s solicitation of prostitution was a one-time, isolated offense with no other evidence of sexual behavior or criminal conduct to raise security concerns. His prompt disclosure of his arrest to his facility security officer (FSO), guilty plea, remedial security training, good character, and productive service to his employer serve as evidence of his rehabilitation and his security clearance was granted); and

4. ISCR Case Number 14-05078 (Oct. 2015) (Applicant’s employment was ended in August 2013 after he placed a cellular phone on the floor in an attempt to take a photo of a co-worker’s underwear without their knowledge. He failed to mitigate the sexual behavior security concerns and his security clearance is denied).

Each case involving Guideline D is different, but we have found that many cases can potentially be mitigated with the proper attention to treatment and the preparation of documentation showing that the sexual behavior is no longer an issue and/or there is no threat of coercion.

Conclusion

When a government contractor or federal employee is in need of a security clearance lawyer for issues involving sexual behavior 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.

How Do Psychological Conditions Affect Security Clearances?

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.

Mental_Disorder_Silhouette

Courtesy – Wikipedia by By Paget Michael Creelman

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CIA Security Clearance Process for Contractors

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

This article discusses the security clearance appeals process for government contractors applying for clearances (or attempting to keep them) with the Central Intelligence Agency (CIA). As we have discussed in other articles, the U.S. Government security clearance process is not administered by one federal agency, but individually by each one.  The clearance appeals process generally falls into 2 main groups of federal agencies (with some exceptions), one run by the Intelligence Community (IC) and those run by the Department of Defense (DoD). That said, each federal agency has their own internal security clearance process with their own variations. The CIA is one of those federal agencies with its own, very unique, security clearance process.

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NSA Security Clearance Appeals

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

Pursuant to Executive Order 12968, the President of the United States has delegated security clearance determinations to each federal agency.  As a result, each federal agency security clearance process tends to be unique but they tend to share some similarities. These different federal agencies are supposed to follow the same Executive Order and Security Executive Agent Directive (SEAD) 4.

These federal agency processes are not centralized and vary somewhat. Some federal agencies tend to focus more on foreign influence (CIA) and others more on drug usage (FBI).  In addition to security clearances processed by the Department of Defense (DOD), other federal agencies have their own procedures and personnel that process their own security clearance decisions for federal employees and government contractors (e.g. DOS, DHS, DOI, NGA, DOE, NRO, CIA, etc). The National Security Agency (NSA) is an agency with its own security clearance process. This article addresses the security clearance process at the NSA for security clearances and Sensitive Compartmented Information (SCI) access.

The Clearance Process at the NSA

The security clearance appeals process at NSA is similar to the procedures for DOD employees, but there are some differences. The NSA follows the intelligence community (IC) policies regarding the processing of security clearances and SCI access. These policies are referred to in the Intelligence Community Policy Guidance (ICPG). The following are the usual steps in the security clearance review process for NSA clearance holders or applicants when they are confronted with security clearance issues.

First Step : Revocation / Denial Letter Issued by NSA

When a federal, military or contractor employee has a security clearance or SCI access issue with NSA, they will receive a revocation or denial letter from the NSA, listing the background and security concerns at issue. The background will list the specific security concerns at issue. The individual will usually then be given 45 days in which to request a review of the security concerns and respond to the security concerns. The investigative file, upon which the denial is based, will usually be included as well to facilitate a complete response by the individual. With other intelligence agencies, an individual must usually request this file. The investigative file will usually include documents, reports and/or other items relevant to the security concerns.

Second Step: Response to the NSA Revocation / Denial Letter

During the second stage of the clearance appeals process at the NSA, the individual will respond to the NSA revocation or denial letter. A response should address the security concerns at issue, e.g. Guideline B, Foreign Influence, Guideline B, Personal Conduct, Guideline J, Criminal Conduct or other issues and focus on the potential mitigation of the security concerns. It is very important to provide documentation, such as declarations, character letters, declarations, affidavits, and other documentation relevant to the security concerns or the character of the individual.

Third Step: Decision by Office of Personnel Security on First Appeal Review

Once the first appeal by the individual is received by the NSA, the NSA Office of Personnel Security will issue a decision as to whether or not the security concerns have been dismissed or otherwise mitigated. If so, the matter is usually then resolved and the clearance or special access restored. If not, the individual will be provided a decision, usually a page or two in length, discussing the reasons why the first level appeal was denied and of the right to a final appeal. The first appeal may indicate that some of the items have been mitigated, but that others have not been. There is a short timeframe in which to appeal, typically 15 calendar days from receipt of the initial decision.

Fourth Step: Meeting and Review by NSA Access Appeals Panel

The next step in the NSA security clearance process is for the employee to meet with the NSA Access Appeals Panel. This is an in person appeal where the individual can be represented by counsel in presenting evidence and argument as to why the security clearance or SCI access decision should be overturned. During this personal appearance before the Access Appeals Panel, the individual can present documents in support of keeping their security clearance to the panel. The panel is staffed fully, normally with 6-7 people present.  The panel may ask questions or sit patiently and listen to the arguments. In most cases, I have found that the panel asks a fair number of questions about the security concerns at issue.

Fifth and Final Step: NSA Access Appeals Panel Decision

Following the personal appearance, the NSA Appeals Panel issues a decision, either granting the clearance or access at issue or a denial. If a denial is issued, the individual may re-apply for a clearance or access a year later. Typically, a decision from the NSA has taken 2 to 6 weeks for a decision which is relatively quick for IC cases.

Conclusion

When an NSA employee or government contractor is facing security clearance issues at NSA it is important to obtain legal advice and potential representation. 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 page here.

DOHA Hearing Security Clearance Tips

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

If you are a federal employee or government contractor whose security clearance is under review (commonly referred to as the Applicant or Clearance Holder) 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 to take into account as you move forward to the hearing.

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Security Clearance Issues Regarding Personal Conduct

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

Guideline E of the Adjudicative Guidelines, located in Security Agent Executive Directive 4, is one of the most commonly used guidelines by the government for denying security clearance applications, renewals or upgrades. This guideline covers general misconduct. This article discusses Guideline E Personal Conduct cases in more detail.

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