Tag Archives: Security clearance appeal

DOE Security Clearance Appeals

Image

Reply

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

Both the Department of Energy (DoE) and the Nuclear Regulatory Commission (NRC) maintain their own security clearance procedures, as enacted into law by the Atomic Energy Act of 1954. This security clearance process for DoE employees is similar to the security clearance process for other federal employees and government contractors and is administered by the DoE Office of Hearings and Appeals.  This article discusses the issues in responding to DoE security clearance issues and clearance appeals. Continue reading →

DOHA Hearing Security Clearance Tips

Posted on by
Reply

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.

Continue reading →

Security Clearance Issues Regarding Personal Conduct

Posted on by
Reply

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.

Continue reading →

Security Clearance Upgrades Can Lead to Loss of Existing Clearance

Posted on by
Reply

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.”

Continue reading →

Alcohol Issues in Security Clearance Cases

Posted on by
Reply

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

Posted on by

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.

Continue reading →

DOHA Security Clearance Tips

Posted on by
Reply

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.