Category Archives: General Security Clearance

Security Clearance Concerns and Handling Protected Information

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By John V. Berry, Esq. & Todd Hull, www.berrylegal.com

Frequently, handling protected information or classified and other sensitive government information can become an issue in security clearance cases for government contractors and federal employees. This article discusses the issues involving Guideline K, Handling Protected Information, which involves security concerns associated with managing and handling protected or sensitive government materials and information that can lead one to lose (or not obtain) a security clearance.

The concerns regarding handling protected information can come up in various ways in the context of a security clearance. However, many federal employees and government contractors retain their security clearances even if they have been alleged to have mishandled protected or otherwise classified information. Notably, under review by a security clearance adjudicator, these types of issues can be mitigated in a number of ways.

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How Do Psychological Conditions Affect Security Clearances?

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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.

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Courtesy – Wikipedia by By Paget Michael Creelman

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Drug Use Issues in Security Clearance Cases

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

One of the more common issues that arise in the context of security clearance investigations is the issue of illegal drug usage and prescription drug usage (by other than the intended recipient) for federal employees and government contractors. This is regulated by Adjudicative Guideline H for those holding or seeking a security clearance. We represent federal employees and government contractors before all federal, intelligence and military agencies. This article discusses the issues that many individuals face with respect to drug usage and their security clearance.

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Security Clearance Upgrades Can Lead to Loss of Existing Clearance

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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.”

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7 Clearance Investigation Tips

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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

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

One of the more frequent issues that arises in the context of security clearance investigations is the issues of alcohol abuse or over-consumption by federal employees and government contractors.  This is regulated by Adjudicative Guideline G for those holding or seeking a security clearance.  This article discusses the issues that many individuals face with respect to alcohol and their security clearance.

Alcohol Abuse by Cleared Employees or Applicants

 

Alcohol over-consumption and abuse can be a major factor in maintaining or obtain a security clearance. Security concerns regarding this issue arise under Adjudicative Guideline G, Alcohol Consumption of Security Executive Agency Directive (SEAD) 4 and Intelligence Community Policy Guidance (ICPG) 704.2.  Adjudicative Guideline G is the section of the Guidelines which involve a clearance holder or applicant’s use of alcohol and it’s impact on an individual’s ability to obtain or maintain a security clearance.

Guideline G issues usually come into play when a federal employee or contractor have issues regarding the use of alcohol. The most obvious issue that begins this type of review is a recent alcohol-related traffic concern such as a DUI or other intoxication charge. If recent, these charges tend to require more investigation prior to the issuance of a security clearance or may require a clearance review.  The clear concern for federal agencies that evaluate security clearances is that excessive alcohol consumption can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information.

Security Concerns Raised by Alcohol Abuse or Consumption

When issues arise involving alcohol abuse or over-consumption, 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 alcohol issues are reviewed in regards to security clearances cases, they fall under Guideline G, Alcohol Consumption, SEAD 4, which reads as follows:

Guideline G: 
Alcohol Consumption under SEAD 4

The Concern. Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness.

Conditions that could raise a security concern and may be disqualifying include:

(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder;

(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, regardless of whether the individual is diagnosed with alcohol use disorder;

(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder;

(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder;

(e) the failure to follow treatment advice once diagnosed;

(f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder; and

(g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.

Conditions that could mitigate security concerns include:

Under Paragraph 23 of SEAD 4, there are 4 mitigating factors provided to mitigate security concerns involving alcohol abuse.  These are:

23. Conditions that could mitigate security concerns include:

(a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or judgment;

(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations;

(c) the individual is participating in counseling or a treatment program, has no previous history of treatment and relapse, and is making satisfactory progress in a treatment program; and

(d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.

SEAD 4.

While many of the same principles have applied to alcohol usage cases under Guideline G in the past adjudicative guidelines, SEAD 4 recently changed some of the concerns and factors slightly as of June 8, 2017, so it is important to be familiar with them.

Case Summaries Involving Guideline G Cases where Clearance Was Denied 

The following are 3 examples where individuals clearances were denied and 3 examples where the individual’s clearance was granted under Guideline G.

Example A:  Security clearance applicant was convicted 3 times of Driving under the Influence of Alcohol (DUI) between a period of 8 years.  The last alcohol-related DUI was 2 years prior to the Statement of Reasons being issued with response to Guideline G. He had recently began to abstain from consuming alcohol, but not enough time has passed to conclude alcohol is no longer a problem. Applicant’s security clearance was denied.  For the entire case, please click here.

Example B:  Security clearance applicant had a long history of alcohol abuse from 1991 to 2012 and was diagnosed with alcohol dependence. The applicant had participated several times in both inpatient and outpatient treatment programs, but had relapsed. He was alcohol free for 14 months prior to the hearing. The Administrative Judge found that his current period of sobriety was not sufficient to mitigate the security concerns under Guideline G, alcohol consumption. Applicant’s security clearance was denied. For the entire case, please click here.

Example C: While security clearance applicant had no alcohol-related incidents since 2014 (and the hearing was held in May of 2016) and had remained sober for more than a year still resulted in a denial of the security clearance by the Administrative Judge. On appeal, the DOHA Appeal Board found that the recency factor alone does not compel an Administrative Judge to make a favorable clearance decision. The Appeal Board held that it has never established a “bright line” rule as to the recency of conduct raising security concerns. The extent to which security concerns have become mitigated through the passage of time or recency is instead a question that must be resolved based on the evidence as a whole. As a result of these findings, the Applicant’s security clearance was denied.  For the entire case, please click here.

 

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:

  1. How long ago was the last problem with alcohol use?
  2. How many incidents of alcohol abuse or alcohol-related traffic incidents are there?
  3. Has there been medical intervention?
  4. Has there been any alcohol treatment given or taken?  Was such treatment voluntary or mandatory (i.e. part of a court resolution).
  5. Is it important to get an independent review by a physician regarding the likelihood of recurrence of alcohol issues? An expert physician may be needed.
  6. Has their been abstinence from alcohol (and for how long)?
  7. Has their been a change in alcohol usage?
  8. Who could potentially testify positively about the applicant’s alcohol usage and changed behavior?
  9. What kind of documentation can be used for exhibits to show abstinence from alcohol?
  10. What kind of documentation can be used to show a change in behavior and more limited alcohol usage?
  11. What types of organizations (Alcoholics Anonymous, Church, Treatment Programs, Physicians, other groups) can be used to support the applicant’s case?
  12. What types of evidence can be used to show how serious the applicant takes the alcohol use issues? i.e. letters of support, character letters, etc.
  13. Is a letter of proposed revocation of a security clearance appropriate to add as an exhibit should the alcohol issues recur.
  14. Is there medical or treatment documentation available to potentially use as exhibits during the clearance proceedings?

Alcohol consumption security clearance cases under Guideline G 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. The key for such security clearance proceedings in this type of case is to be prepared.

Conclusion

In sum, when facing alcohol-related or other security clearance issues, 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, our Facebook page or through this page.

 

Financial Concerns For Security Clearance Holders

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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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