Security Clearance Issues, Problems, Denials and Revocations

Security Clearance Issues, Problems, Denials and Revocations

by Attorney Ronald C Sykstus
Security Clearance Issues, Problems, Denials and Revocations

Security Clearance Issues, Problems, Denials and Revocations

by Attorney Ronald C Sykstus

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Overview

Security Clearance Issues, Problems, Denials and Revocations

(If you have a security clearance with no issues, then you don't need this book. If, however, you are worried about any aspect of your security clearance, then you absolutely need this book!)

Attorney Ronald C. Sykstus first started handling security clearance matters as a prosecutor in the United States Army. Subsequent to that, he defended active-duty soldiers and officers who were having their clearances revoked. He has continued his security clearance defense practice as a civilian lawyer since he left the United States Army with an honorable discharge. Ron is very aware of the importance of having a security clearance for obtaining meaningful and well-compensated employment, both within the government and in the private contracting industry. This book covers all aspects of the security clearance process. It is especially geared toward people who not only run into problems with their existing security clearance, but also for those who have concerns about getting a security clearance and making sure that their clearance or job is not jeopardized down the road. This book addresses people's concerns at all phases of the security clearance process, and it does so in a way that makes sense and is easy to understand. If you are about to be put in for a clearance and if you have any questions, worries or concerns at all about the process or your background, you would really do yourself a great favor by reading this book first, BEFORE YOU TAKE ANY STEPS TOWARDS YOUR CLEARANCE!


Product Details

ISBN-13: 9781647186418
Publisher: Abuzz Press
Publication date: 06/10/2020
Pages: 106
Product dimensions: 6.00(w) x 9.00(h) x 0.22(d)

About the Author

Attorney Ronald Sykstus is a former U.S. Army JAG lawyer who has been handling all types of security clearance issues, problems, denials and revocations for many years throughout the country. Detailed information about his security clearance practice is available at www.SecurityClearanceDefenseLawyer.com

Read an Excerpt

CHAPTER 1

I Want a Security Clearance to Get a Good Job

Government jobs and civilian employment are, generally speaking, quite lucrative and can also provide long-term security for employees. No wonder these jobs are coveted! Believe me, there are many days I look back and think government employment would have been a good way to go! The problem is that these jobs, by and large, require access to classified material, and thus, the employee must have security clearance.

I get several calls each week from people asking me to help them get a security clearance so that they can apply for one of these good jobs. The system, however, does not work that way. If someone already has a clearance and is applying for a job, that is one thing. It is most often the case, however, that someone gets a job that requires a clearance and that person has to be put in for one. An individual cannot simply go out and get a security clearance on his or her own, free and clear of a job.

The starting point that probably makes the most sense here is to detour a bit and cover the language used in the security clearance world. Since it is driven by the government, acronyms rule the day, as one would expect. These are the ones to know, in addition to what I have already mentioned.

1. CAF – Central Adjudications Facility located at Fort Meade, Maryland.

2. JPAS – Joint Personnel Adjudications System – Centralized computer system that contains everything related to security clearances, centrally located at the CAF.

3. FSO – Facility Security Officer – Every government and private entity that deals with classified material has a FSO who serves as a central clearinghouse for that entity for any matter related to security clearance.

4. e-QIP – Electronic questionnaires for investigation processing – This is how the security clearance application now is completed by the applicant.

5. SF 86 – Standard form 86 – This is the actual form utilized by the government and located online under the e-QIP, which is where applicants fill out this form using that electronic questionnaire.

6. DSS – Defense Security Service – The Defense Security Service is an agency of the Department of Defense (DoD) located in Quantico, Virginia, with field offices throughout the United States. The Under Secretary of Defense for Intelligence provides authority, direction, and control over DSS. DSS provides the military services, defense agencies, thirty-one federal agencies, and approximately 13,500 cleared contractor facilities with security support services.

As far as the types of security clearances, the following is a list of what people need (and the types they can get) in order to have access to classified material and perform their jobs.

1. Types of Security Clearances

1. Confidential – lowest level – commonly referred to as CAC or Common Access Card – for commissary workers, child care, etc. – Allows for base access and presence on base (Note – lesser form is used for CAC card, SF 85, not as intrusive or exhaustive as SF 86 form).

2. Secret Clearance – Most government and contractor jobs require this one – once granted, reviewed every ten years if no intervening incident.

3. Top Secret – TS – Once granted, reviewed every five years if no intervening incident. TS requires a SSBI (Single Scope Background Investigation) which will include a polygraph. TS is the top-level clearance but there can be variants:

TS-SCI – Sensitive Compartmented Information

TS-SAP – Special Access Program

4. A clearance is good for twenty-four months after loss of employment if it is not suspended or revoked. After twenty-four months, applicants have to go through the full investigation process again to include submitting a SF 86 or SF 85, as required. NASA, TVA, and nuclear programs have a similar process but more limited due process rights. Ninety percent of what most applicants will see and deal with will be the DOD process described herein and not NASA, TVA, or nuclear.

In practical terms, the way the system works is that someone applies for a job that requires a security clearance. Now that he or she is "sponsored" by the employer for a job that requires access to classified material, the facility security officer (FSO) of that government agency or civilian employer will put that person in for a security clearance through the JPAS system. It is a slow process, but hopefully within a two- to four-month period, an interim clearance will be granted if there are no immediate background issues such as criminal convictions or derogatory information in the FBI database.

Once an interim clearance is granted, the person who received it is then free to work on classified material. The CAF does a detailed background check of the applicant's background to include marriage, family history, further criminal check, interviews with people who have known the applicant since the age of sixteen, drug and alcohol screening, and pulling and reviewing the three main credit reports for that individual from Experian, Transunion, and Equifax. This review also includes a formal sit-down meeting with an investigator from the DSS (Defense Security Service) who will transcribe the interview. For a TS clearance, the investigation will be a bit more detailed and invasive. In 60 percent or more of TS cases, the applicant will have to fly to Washington, D.C., to undergo a polygraph examination. This polygraph can be quite intrusive as well.

CHAPTER 2

So Who Gets a Security Clearance?

This is a good question and, at times, the answer feels like it is ordained from above. In reality, the government has set forth adjudicative guidelines for determining eligibility for access to classified information for all U.S. government civilian and military personnel, consultants, contractors, employees of contractors, licensees, certificate holders or grantees and their employees, and other individuals who require access to classified information. These guidelines apply to persons being considered for initial or continued eligibility for access to classified information, to include sensitive compartmented information (TS-SCI) and special access programs (TS-SAP), and are to be used by government departments and agencies and for all final clearance determinations. Government departments and agencies may also choose to apply these guidelines to analogous situations regarding persons being considered for access to other types of protected information.

A variant of these guidelines will also apply to NASA, TVA, and nuclear personnel and/or contractors, so it is wise to know exactly what type of entity a security clearance applicant is trying to work for and what specific guideline covers access to classified material for the specific entity or department before trying to get a security clearance or appealing a clearance denial or revocation.

Decisions regarding eligibility for access to classified information take into account factors that could cause a conflict of interest or place a person in the position of having to choose between his or her commitments to the United States, including the commitment to protect classified information, and any other compelling loyalty. Access decisions also take into account a person's reliability, trustworthiness, and ability to protect classified information. No coercive policing could replace the self-discipline and integrity of the person entrusted with the nation's secrets, and these traits are the most effective means of protecting them. When a person's life history shows evidence of unreliability or untrustworthiness, questions arise whether the person can be relied on and trusted to exercise the responsibility necessary for working in a secure environment where protecting classified information is paramount.

The preceding paragraph is directly from the directive on security clearances. The last portion discussing a person's life history is the important phrase; allowing the government to perform an exhaustive inquiry regarding a person's background.

The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudication process is the careful weighing of a number of variables known as the whole-person concept. Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination. In evaluating the relevance of an individual's conduct, the adjudicator should consider the following factors: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and decency of the conduct; the individual's age and maturity at the time of the conduct; the extent to which participation is voluntary; the presence or absence of rehabilitation and other permanent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.

Each case must be judged on its own merits, and final determination remains a responsibility of a specific department or agency. Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.

The ability to develop specific thresholds for action under these guidelines is limited by the nature and complexity of human behavior. The ultimate determination of whether the granting or continuing of eligibility for security clearance is clearly consistent with the interests of national security must be an overall common-sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person.

Guideline A: Allegiance to the United States

Guideline B: Foreign Influence

Guideline C: Foreign Preference

Guideline D: Sexual Behavior

Guideline E: Personal Conduct

Guideline F: Financial Considerations

Guideline G: Alcohol Consumption

Guideline H: Drug Involvement

Guideline I: Psychological Conditions

Guideline J: Criminal Conduct

Guideline K: Handling Protected Information

Guideline L: Outside Activities

Guideline M: Use of Information Technology Systems

Although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior. Notwithstanding the whole-person concept, pursuit of further investigation may be terminated by an appropriate adjudicative agency in the face of reliable, significant, disqualifying, adverse information.

When information of security concern becomes known about an individual who is currently eligible for access to classified information, the adjudicator should consider whether the person voluntarily reported the information, was truthful and complete in responding to questions, sought assistance and had followed professional guidance, where appropriate, resolved or appears likely to favorably resolve the security concern, has demonstrated positive changes in behavior and employment, should have his or her access temporarily suspended pending final adjudication of the information.

If, after evaluating information of security concern, the adjudicator decides that the information is not serious enough to warrant a recommendation of disapproval or revocation of the security clearance, it may be appropriate to recommend approval with the warning that future incidents of a similar nature may result in revocation of access.

All of this information is found in Department of Defense Directive number 5220.6, January 2, 1992. Stated on the top right corner of the government's most current version as of the date of the printing of this book is the following: "This version of DOD directive 5220.6 contains the revised adjudicative guidelines implemented for the Department of Defense by the Under Secretary of Defense for intelligence on August 30, 2006 and made effective for any adjudication in which a statement of reasons is issued on or after September 1, 2006.

Anyone who is facing an issue regarding his or her clearance, or has a concern, please make sure to double check the directive that the DOD or any other entity is using with regard to the clearance. As I previously mentioned in this book, most entities as they relate to a clearance will use this specific directive. A few other entities use different guidelines, so be sure you know the exact and most recent guideline/directive that will directly impact and affect your security clearance. This is very important! Know and get a complete copy of the correct, exact, and up-to-date directive or regulation that is being used on your specific security clearance!

Just a final side note here before we start the next chapter. It is of historical significance, but I also bring it up because people may still believe that this issue poses a problem. It affected a good number of people for several years, which is why I want to discuss the Smith Amendment. Originally enacted in 2000 and found at 10 U.S.C. 986, this law barred contractors and employees of the Department of Defense and military personnel from holding a security clearance if they had been convicted of a crime and served more than one year of incarceration. This law applied for any conviction if anyone was convicted of an offense and sentenced to at least one year in jail, regardless of whether they ever had to serve jail time. The effect of this law, enacted in 2000, caused many employees who already held a security clearance to lose their clearances. As a result, they lost their jobs even if they were convicted of an offense many years before or the issue had already been flushed out and vetted by the security clearance agencies. This law and bar to security clearances was removed by law effective January 1, 2008. Under this fact pattern, under the new law, the bar now is limited to individuals having access to special access programs, restricted data, or any other information commonly referred to as sensitive, compartmented information if they have been convicted in any court of the United States of a crime, sentenced to imprisonment for a term exceeding one year, and incarcerated as a result of that sentence for not less than one year. Even in those circumstances, however, the law allows a waiver in meritorious cases if there are mitigating factors.

CHAPTER 3

Standard Form (SF) 86

For almost everyone in the security clearance world, just the phrase "SF 86" sends chills down the spine. It is the equivalent of talking about the bar exam for lawyers or the CPA exam for accountants. It evokes that same kind of sentiment and nauseating type of reaction.

The government has revised this form a number of times over the past several years. You can assume, and you would be correct, that the revisions are not meant to favor the applicants for security clearances. In my estimation, all the changes and revisions are designed precisely to ferret out behavior and circumstances that would allow the government to preclude granting someone access to classified material or revoking a security clearance previously awarded.

As we discussed previously, the SF 86 is done online now through the e-QIP system. An applicant does not need to complete it at one sitting, and he or she is allowed to do it over several days. This is always good policy, for reasons we will discuss later. The current version of the SF 86 used by the government as of the date of this book is December 2010. The top left corner of the SF 86 specifically states that it is "Revised December 2010." If the SF 86 you are filling out is dated with a date other than December 2010, then these questions and page numbers may appear to you in a different format than what is referenced here. If that is the case, please pay even more attention to the questions and your specific and detailed answers because that means substantive changes have been made to the SF 86 by the government since the date of publication of this book. This December 2010 document contains two pages of instructions at the front, followed by 122 substantive pages to be completed, and then three final pages for signatures and releases for all manner of material to be provided to the government.

Let's start with the instructions.

Here is how the SF 86 begins; it certainly gives you a strong sense of the import and solemnity of the form and the process.

"All questions on this form must be answered completely and truthfully in order that the government may make the determinations described below on a complete record. Penalties for inaccurate or false statements are discussed below. If you are a current civilian employee of the federal government: failure to answer any questions completely and truthfully could result in an adverse personnel action against you, including loss of employment; with respect to sections 23, 27 and 29, however, neither your truthful responses or information derived from those responses will be used against you in a subsequent criminal proceeding." Note that the words in bold are exactly as set forth in this first paragraph of the instructions.

(Continues…)



Excerpted from "Security Clearance Issues, Problems, Denials and Revocations"
by .
Copyright © 2017 Attorney Ronald C. Sykstus.
Excerpted by permission of Dog Ear Publishing.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Chapter 1 Introduction

I Want a Security Clearance to Get a Good Job

A. Types of Security Clearances

Chapter 2 So Who Gets a Security Clearance?

Chapter 3 Standard Form (SF) 86

Chapter 4 Standard Form (SF) 86 in Detail

A. Problem Questions I See for My Clients

on the SF 86

1. Section 10 Dual/Multiple Citizenship & Foreign Passport Information

2. Section 13 Employment Activities

3. Section 15 Military History

4. Section 17 Marital Status

5. Section 19 Foreign Contacts

6. Section 20 Foreign Activities

7. Section 21 Psychological and Emotional Health

8. Section 22 Police Record

9. Section 23 Illegal Use of Drugs and Drug Activity

10. Section 24 Use of Alcohol

11. Section 25 Investigations and Clearance Record

12. Section 26 Financial Record

13. Section 27 Use of Information Technology Systems

14. Section 28 Involvement in Non-Criminal Court Actions

15. Section 29 Association Record

B. Summation of SF 86 Questions

Chapter 5 DOD Directive 5220.6

Guideline A: Allegiance to the United States

Guideline B: Foreign Influence

Guideline C: Foreign Preference

Guideline D: Sexual Behavior

Guideline E: Personal Conduct

Guideline F: Financial Considerations

Guideline G: Alcohol Consumption

Guideline H: Drug Involvement

Guideline I: Psychological Conditions

Guideline J: Criminal Conduct

Guideline K: Handling Protected Information

Guideline L: Outside Activities

Guideline M: Use of Information Technology Systems

Chapter 6 The Procedure (or What Happens Next)

Chapter 7 Appeal of an Adverse ALJ Decision That Revokes or Denies a Security Clearance

Chapter 8 How a Clearance Case Should be Handled When the Government Is Intent on Denying or Revoking a Clearance

A. Evaluation of a Case from My Perspective

B. My View of a Case

Chapter 9 New Directive

Conclusion

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