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.

Hiring a Security Clearance Lawyer

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

We typically meet with many federal employees and/or government contractors who are faced with security concerns or potential security concerns in obtaining, retaining or applying for a security clearance. These individuals often ask our attorneys at what point they should retain a security clearance attorney to assist, advise or represent them. This article discusses this topic.

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Clearance Tips Before the Defense Office of Hearings and Appeals

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

A topic that often comes up in our law firm’s security clearance practice involves the issue of how to best prepare for an upcoming administrative hearing before an administrative judge with the Defense Office of Hearings and Appeals (DOHA).  While this topic could cover several chapters, I have assembled a few basic tips in the process from our practice in this area of law.  DOHA administrative judges make final decisions of security clearances for government contractors and recommended clearance decisions for federal employees.

Keep in mind that it is important to obtain an experienced lawyer familiar with security clearance practice to best assist individuals approaching a DOHA hearing.  Counsel 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. A successful outcome often means putting in significant preparation ahead of time. This article discusses some basic tips.

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Security Clearance Upgrades Can Lead to Loss of Existing Clearance

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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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.

Security Clearance Appeals

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

Security clearance appeals can vary, depending on the federal agency that holds (or is reviewing) the individual’s security clearance.  We represent federal employees and government contractors, nationwide, before all federal agencies with respect to security clearance appeals.

Different Federal Agencies, Different Appeals Procedures

The most frequent federal agency to hear security clearance appeals is the Department of Defense (DoD), which often hears cases through the Department of Defense Consolidated Adjudications Facility (DoD CAF) and the Defense Office of Hearings and Appeals (DOHA). We represent federal employees and contractors in clearance matters before this agency (and all others, like DoS, DoI, DoT, DoJ, etc.), along with appeals adjudicated by the Intelligence Community (e.g. NSA, DIA, CIA, NGA, NRO).

It is important to note that while they are governed by the same Executive Order, each federal agency processes security clearance appeals differently. Our firm is versed in the different appeals processes for each agency.  Each federal agency generally provides for an in person (face to face or “personal appearance”) meeting to discuss the security clearance issues at issue either at Step 1 or Step 2 of the appeals process.  We generally recommend that an individual take advantage of this opportunity in responding in person, in addition to responding with a solid written response with exhibits.

Conclusion

If you need assistance in representation in a security clearance matter, please contact our office at (703) 668-0070 or through our contact page.