Upgrading a Security Clearance

Security clearance upgrades raise potential issues for many clearance holders. For many federal employees, military members, and government contractors, moving from a Secret Clearance to a Top Secret (TS) or Sensitive Compartmented Information (SCI) clearance can lead to higher-paying positions and more career growth. But with these opportunities comes deeper scrutiny when it comes time for adjudication.

A clearance upgrade is not automatic, and even small issues can slow down the process or create avoidable problems potentially affecting all of your security clearances. The following are some practical tips to consider as you seek a clearance upgrade.

Enhanced Investigations Occur When Upgrading to a TS or SCI Clearance

While all security clearances require an investigation, they get more rigorous as the clearance level gets higher. A TS clearance involves a much more in-depth background investigation than a Secret-level clearance does. A TS investigation includes more extensive checks into finances, foreign contacts, travel, and personal conduct. If your position requires SCI access, expect additional steps, which may include a polygraph examination and a separate vetting process depending on the agency involved. In my experience, the jump to SCI is more rigorous than moving to a TS from a Secret-level clearance.

Submission of a New SF-86 Required

In preparing for the upgrade, you should review and update your SF-86/eQIP/eApp. The Standard Form 86 (SF-86) is the foundation of your entire clearance investigation. When upgrading your clearance, you will likely be required to submit a new or updated version of the form. Mistakes on this form are one of the most common causes of delays.

Some frequent security issues include:

• Forgetting to list foreign travel, relatives, or contacts,
• Omitting financial debts or delinquencies,
• Failing to disclose past drug use or arrests,
• Previous disclosures missing from prior SF-86 forms,
• Leaving out previous addresses, employers, or supervisors.

A SF-86 is a legal document. Omissions, even accidental, can raise concerns about truthfulness that are harder to mitigate than the underlying issue. One of the most frequent issues we run across is where a clearance holder simply repeats the same information from an older SF-86 without realizing that changes have occurred since the last investigation.

Address Any Financial or Foreign Influence Issues Early

Before upgrading, attempt to anticipate any new security concerns that could come up and try to resolve or mitigate them in advance. Two of the most common reasons for clearance delays or denials are: (1) Guideline F (Financial Considerations); and (2) Guideline B (Foreign Influence). It is important to address these two issues fully and directly if they arise.

If you have family overseas, dual citizenship concerns, or foreign assets, be upfront and prepared to demonstrate continued loyalty to the United States and to demonstrate that you are not subject to undue foreign influence. Additionally, if you have had credit problems, debt collection accounts, or a history of bankruptcy, gather documentation showing that you have resolved or are responsibly managing your finances.

These issues will almost always come up in an upgrade investigation, and it is important to get ahead of them where possible.

More Intensive Interview and Possible Polygraph Process

As mentioned above, during a TS investigation you will be interviewed by an investigator who will review your SF-86, clarify information, and discuss any potential issues. If SCI access is required, you may also undergo a counterintelligence or lifestyle polygraph. These examinations assess honesty and identify potential security vulnerabilities. Be honest, calm, and forthcoming; investigators are typically more concerned about dishonesty than about conduct that occurred years ago.

Importance of Avoiding New Security Issues During Investigation

Your clearance upgrade is not complete when you submit your SF-86. You remain under review for the upgrade until adjudication is complete. If new issues arise you may have to complete an SF-86C or other agency-specific paperwork.

During this time, avoid creating new potential security concerns such as:

• Taking on significant debt,
• Using illegal drugs (marijuana) even in states where they are “legal” under state law,
• Getting involved in criminal or domestic disputes,
• Failing to report foreign travel or contacts.

Encountering new security concerns while your upgrade is processing can significantly delay or impede your investigation so do your best to avoid any new issues.

Clearance Upgrade Rights if Issues Arise

If the agency has unresolved concerns, you may receive a Statement of Reasons (SOR) or a Letter of Intent to deny or revoke your clearance (LOI). If this happens, you have the right to respond and appeal. The process varies between federal employees, military members and government contractors. In fact, it is very important that you respond given that adverse issues can affect not only the upgrade but your existing security clearance.

Experienced security clearance counsel can help you prepare a thorough SOR or LOI response which includes mitigating evidence and a detailed rebuttal. Many clearances that initially appear “at risk” are ultimately granted after a well-supported rebuttal and/or a personal appearance.

Continue Good Clearance Habits After Upgrade

Once your TS or SCI clearance is approved, your responsibilities continue. You will remain subject to continuous evaluation, and your agency may still conduct periodic reviews. However, you can relax knowing that the adjudication is complete. If you are upgrading to a TS, you may have to repeat this process again if you later need an SCI.

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Upgrading from a Secret to TS or SCI clearance is a significant step for an individual’s career growth. It is crucial to handle the upgrade process with care. If you anticipate possible security concerns, financial, foreign, or otherwise, address them early and seek the assistance of a security clearance lawyer. Please contact us here or at (703) 668-0070 if you need any security clearance assistance.

We often meet with federal employees and government contractors facing security concerns in connection with their security clearances. These employees often ask for us assistance in responding to a security clearance denial or notice of revocation. No matter the security concerns at issue, we find that it is always important and helpful for the individual to respond with character letters which help explain the personal character of the clearance holder or applicant to the adjudicator.

The more background that an adjudicator has on the good character of a person under security clearance scrutiny, the better.

The Whole-Person Concept

Character letter submission falls under the Whole-Person Concept, which is very important in security clearance cases. The Whole-Person Concept, in sum, is just an analysis of the person who is under review and their character and background. This Whole-Person Concept evaluation focuses on whether the individual, even with security concerns, should be deemed an acceptable security risk. This is where the concept of using character letters comes in. According to Security Executive Agent Directive 4 (June 2017) (SEAD 4), the Whole-Person Concept is best described as follows:

The adjudicative process is an examination of a sufficient period and a careful weighing of a number of variables of an individual’s life to make an affirmative determination that the individual is an acceptable security risk. This is known as the whole-person concept. All available reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a national security eligibility determination.

Adjudicators sometimes have the opportunity to personally meet applicants or clearance holders. However, in many instances, adjudicators never get to meet them and have to review a written submission. An adjudicator therefore needs some sort of basis on which to judge an individual’s character. We have seen administrative judges that are very grateful that they have some independent observations of an individual’s character. This is especially true where there is a clearance issue involving a person’s character or something about character that is at issue (i.e. alleged truthfulness in completing an SF-86). Guideline E alleged security concerns often directly relate to character.

What is a Character Letter?

A character letter is a letter usually drafted by a colleague, friend, family member, co-worker, community leader or just about anyone that one can think of who can describe the good character of the person undergoing a security clearance appeal.  Character letters can come in many forms, such as affidavits, sworn declarations or just plain old letters of support. They should, at a minimum, be signed. I have found that emails tend not to be weighted too heavily in a review. The document itself should be personally signed by the reference. The idea behind character letters is that a security clearance adjudicator does not know the person under review and needs assistance in determining their character.

A character letter helps an adjudicator better understand the person that they are evaluating. The more detail a character letter can provide about the person, the better.  The more character letters that one can prove, the better. I find that it is helpful when an adjudicator is presented with numerous affidavits, declarations or letters confirming the good character of a clearance holder or applicant.

What Should be Included in a Character Letter?

We are often asked about what should be included in a character letter. A character letter should have significant detail, if at all possible, about the person and any clearance-related events. Additionally, it is important that the letters not all sound the same or similar. The last thing that an adjudicator wants to see is a number of boilerplate letters that say the same thing or that say very little. A character letter needs to explain specifically how the individual knows the clearance applicant or holder, the period of time they have known them for, their observations of the clearance applicant or holder and if possible why they feel that the individual is worthy of a clearance even in light of any security concerns.

To the extent that each letter can tell a unique and positive recollection from the clearance holder’s background, the better. We often find that character letters citing specific prior examples of observed integrity or good behavior are often very helpful.  A good character letter can go a long way towards mitigating security concerns that have been raised.  This is especially so if integrity or honesty is at issue.

Different Types of Character Letters

While there are many types of individuals in one’s life that an employee can approach to write a character letter, the four below seem to be the most common:

1. Letters from supervisors about good character and performance at work;
2. Letters from friends or family about how a person who has had a security concern has changed (why the security concern is no longer an issue);
3. Letters from friends, co-workers or family which talk about the credibility of the clearance holder or applicant; and
4. Letters from church or charitable organizations about the character or involvement of a clearance holder or applicant.

These are just a few examples of potential types of character letters that might be helpful.

Approaching Friends and Supervisors for Character Letter Requests

Oftentimes friends or colleagues would like to help with submitting a character letter, but sometimes they are afraid to do so. Many times colleagues are also cleared so they fear that they might suffer some sort of retaliation if they write a letter in support of a clearance applicant or holder. That is simply not true. These character letters are appreciated by adjudicators (and administrative judges) and have no effect on the writer. The entire goal is to evaluate the applicant or clearance holder. Sometimes, where appropriate, it is helpful to explain the background of the clearance case and why they need a character letter from an individual ahead of time; it often helps them in writing a better and more comprehensive letter.

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When an individual is facing security clearance concerns it is important to obtain legal advice and legal representation. Our law firm advises individuals in the security clearance process and can assist with the character letter process.  We can be contacted here or by telephone at (703) 668-0070.

In the world of security clearances, few phrases are as confusing or as stressful as “Loss of Jurisdiction.” You might see it on your clearance record in Defense Information System for Security (DISS) or Scattered Castles and wonder what it means for your job, your cleared career, and your eligibility moving forward.

The good news is this: Loss of Jurisdiction does not mean your clearance has been denied or permanently revoked. But it does mean your eligibility has been paused, and you must take specific steps to resolve it.

When Does Loss of Jurisdiction Occur?

“Loss of Jurisdiction” (commonly LOJ) occurs when the Defense Counterintelligence and Security Agency (DCSA) or another adjudicating federal authority no longer has the legal ability to make a determination about your security clearance. LOJ typically occurs when:

• You leave federal service or separate from the military while your clearance investigation is still pending.
• Your security clearance eligibility expires because the reinvestigation wasn’t completed before you departed.
• You had an open issue (financial, personal conduct, criminal, etc.) and left your position before a clearance adjudication was finished.
• A sponsoring employer removes sponsorship, leaving adjudicators without authority to continue the case (often occurs during a termination of employment).

Once jurisdiction is lost, your security clearance is essentially in a hold status. You cannot access classified information or be assigned to classified work until jurisdiction is restored and any remaining issues resolved.

What LOJ Doesn’t Mean

Because LOJ appears alongside denied and revoked statuses in security clearance databases, it can be very concerning, but it shouldn’t be mistaken for either of these two statuses. An LOJ does not mean that you failed a security clearance investigation.

Additionally, an LOJ doesn’t mean that your security clearance was revoked or that you have been permanently disqualified from holding a clearance. LOJ simply means there’s no active authority to complete or adjudicate your case. It’s an administrative pause in the status of your clearance, not a final decision about your ability to hold the clearance.

LOJ is Pretty Common

LOJ cases have increased in recent years for a number of reasons:

• Higher scrutiny under Continuous Vetting (CV) programs;
• Delays in reinvestigation timelines;
• More frequent personnel transitions between government contractors and agencies;
• Contractors unwilling to continue sponsorship when issues arise (frequent problem where contractors are often unable to bill work performed by those with security clearance issues);
• Employees separating before pending security concerns are resolved; and
• Sponsorship gaps during employment changes.

A security clearance is tied to active sponsorship by a contractor. When a sponsorship ends, no matter the reason, LOJ often follows. It is pretty common for LOJ to occur during the processing of security clearance appeals. In some cases, LOJ suspends the appeals process (e.g., DCSA). For other federal agencies, LOJ does not impede the ability to adjudicate issues involving a security clearance.

How to Address Loss of Jurisdiction

There is usually no quick fix to an LOJ, but there is a path back. The path back to active eligibility depends on your employment status and the nature of your case. Here are the key steps to attempt to remedy LOJ:

    1. Obtain a New Sponsorship

You must first have an employer or agency willing to sponsor you in order to reactivate your security clearance. Without sponsorship, the government cannot reopen your investigation, review an incident or restore jurisdiction. Once sponsored, the new employer can request: (1) reinstatement; (2) reinitiation; or (3) reopening of the prior investigation. Sometimes the new sponsorship requires the individual to be evaluated through the submission of a new SF-86 and/or the reconsideration process.

It is recommended that if you find yourself in LOJ status that you consider all types of cleared positions because some government contractors are more open to working with you than others.

     2. Attempt to Resolve (or Work on) the Security Concerns

If your LOJ stemmed from security concerns like financial delinquencies, unresolved criminal matters, or personal conduct concerns, address them before a new review begins. Documentation showing corrective action taken with respect to security concerns can significantly strengthen your case.

It is often helpful, where possible, to check with your former security officer or a potential sponsor’s security officer to check on the status of your clearance and to see whether you have been flagged.

    3. Organize Relevant Documentation

It is often the case that an individual who moves into LOJ doesn’t have the appropriate documentation ready when another opportunity to get cleared arrives. It is important to keep records regarding any security concerns. These can include, but are not limited to:

• Prior clearance eligibility determinations
• Investigation closing notices
• Statements of Reasons (if any)
• Rebuttals or mitigation evidence

These can assist your new security office reestablish jurisdiction quickly and accurately.

4. Seek Information through the Privacy Act

In some cases, it may be helpful to seek information about issues or flags on your security clearance by submitting a Privacy Act request seeking clearance database records in DISS, Scattered Castles or other federal agency adjudicative databases.

Attempting to Prevent Loss of Jurisdiction

While LOJ is not always avoidable, you can reduce the chances of falling into LOJ status:

• If separating from service, try to complete your investigation beforehand.
• Maintain communication with your FSO, especially when switching employers.
• Keep your SF-86  information current, clean, and ready to submit (adjudicators may have you submit a new SF-86 instead of reviewing a prior incident report).
• Stay on top of any security concerns that may have been relevant when you went into LOJ.

The more proactive you are, the smoother future adjudications can be.

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Loss of Jurisdiction is often misunderstood, but it doesn’t have to derail your career. Think of it as a procedural hold: the government simply lacks the authority to continue your clearance case until you regain sponsorship and provide any needed information. With the right steps, principally consisting of securing a new sponsoring employer, addressing underlying concerns, and preparing documentation you can move forward with your cleared career. LOJ isn’t the end of the road. It’s a problem that can be fixed.

If you are a federal employee or government contractor whose security clearance is under review 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 that should be made as you move towards the hearing phase. Before DOHA, an applicant for a security clearance (or clearance holder) should be well prepared, in advance, to present their case at a hearing. You should think of a DOHA hearing as less formal litigation but very similar to appearing in court. There is a judge and the government is represented by an attorney who is referred to as Department Counsel. You should be represented by a security clearance lawyer.

It is often the case that individuals come unprepared for a DOHA hearing and wish they had consulted a security clearance attorney earlier. Having legal counsel represent you in this forum is highly advised. The following is a typical chronology of a hearing before DOHA and an administrative judge.  Keep in mind there are some slight differences in the process between federal employee and government contractor clearance proceedings before DOHA.

Chronology of a DOHA Appeal

The process and procedures for a DOHA administrative judge hearing vary, depending on each case, and certain procedures can also vary between individual judges. The following is a chronology of what you might expect in a typical DOHA hearing case:

Pre-Hearing DOHA Process

1. The DOHA Hearing process generally starts when the individual receives notice from a government attorney at DOHA introducing themselves and indicating that they plan to use certain exhibits against the person during the hearing. This will begin the process of setting eventually setting the hearing date and receiving notice of the administrative judge assigned.

2. Prior to the date of the DOHA hearing, the clearance applicant (if in person) should ensure that they have DOHA contact information available to ensure that they have an escort to the hearing room, which, in the Washington, D.C. area is in Ballston, Virginia. You will want to arrive early with your witnesses to ensure that you are on time for the proceedings and have enough time to clear security. Also, keep in mind that most hearings have moved to a virtual platform so very few hearings are in person these days.

3. The Applicant must make sure that they have all of their exhibits submitted to the Department Counsel in advance (so that they have a chance to prepare their case), according to DOHA rules.  These exhibits will be reviewed by Department counsel and then the government will have the opportunity to object or comment on them before they are entered into the hearing record. Judges also require advance submissions of exhibits so that they can prepare to hear the case.

Start of the DOHA Hearing

4.  When you enter most formal DOHA hearing rooms, typically the applicant for a security clearance will on the left hand side of the hearing room / table and the Department Counsel (if there is one) will sit on the right. The court reporter will be to the right of the administrative judge and the witness stand will be on the left. As noted above, DOHA has also moved recently to permit most of the hearings to take place virtually through Microsoft Teams which has changed some of the dynamics for those cases.

5. The witnesses (other than the applicant for a security clearance) will almost always be sequestered before they testify. They will then be escorted into the hearing room to testify, one at a time. Again, in virtual settings, witnesses are sequestered electronically (cannot participate or view virtual hearing until their testimony). When the judge is ready to hear a virtual witness they are allowed into the electronic hearing room.

6. The witnesses, in turn, will usually testify to the left of the DOHA administrative judge (when observing the procedures from the applicant’s table). If held online, this really doesn’t apply.

7. Typically, the administrative judge will hear any procedural issues first, from both sides, before starting the hearing. There could be witness issues or evidentiary issues which need to be discussed before the start of the formal proceedings.

8. Exhibits will then generally be reviewed for marking and admissibility by the administrative judge. Typically, both sides have reviewed the other’s exhibits before the hearing and most exhibits are generally agreed to. While there is the ability to object based on evidence, this ability is more limited in a DOHA hearing.

Opening Statements and Testimony

9. A DOHA hearing will usually then start with opening statements if a security clearance applicant is represented by an attorney. The Department Counsel will often go first.  The clearance applicant’s attorney will next offer their statement if they chose to do so.

10. Typically, while the Department Counsel usually presents their case first, they tend not to usually put on their own case but instead examine the security clearance applicant on cross-examination. In other words, their case will typically rely on information gained from cross-examining the security clearance applicant.  As a result, the security clearance applicant or clearance holder will present their case first.

11. The first witness called by the applicant’s security clearance attorney will often be the applicant who is the most important of all of the witnesses and will usually take the most time of all of the witnesses in testimony. Since the security concerns principally involve the person at issue it makes sense that their testimony would take the longest. In other cases, the best strategy is to call the applicant last for testimony.

12. Following an examination by the applicant’s attorney, the government’s attorney and/or the administrative judge will question each witness.  The examination will mostly center around the facts and issues related to the Statement of Reasons (SOR) or Intent to Revoke issued earlier in the case.

Closing Arguments and Extended Record

13.  Once the witness testimony is complete, the parties may be asked to provide their closing arguments in the case.  This typically takes the form of closing arguments, but written briefs, if a key legal issue is involved, are possible.

14.  Following closing arguments, the record will be closed (unless extended for some reason – i.e. the need to extend the closing date for the submission of additional exhibits that are needed). If the hearing remains open for additional exhibits this can last an addition 2 weeks to 4 weeks, in general before the record is closing.

Following the DOHA Hearing

15.  Usually, after 2-6 weeks, a copy of the transcript will be sent to the clearance attorney’s attorney or applicant and government counsel for review.

16.  Depending on the employment status of the person seeking the security clearance at issue, federal employee or government contractor, the administrative judge will then issue a recommended or final decision. For federal employees, the security clearance decision issued will be a recommended decision for final review by a federal agency’s personnel security appeals board (PSAB). For government contractors, the administrative judge’s decision issued is final, but the losing party has the opportunity to appeal to DOHA Appeal Board.

17. Depending on the type of employment involved, if an employee is denied a security clearance, in many cases, depending on circumstances, they can re-apply through the reconsideration process a year later.

18. Even if a difficult security clearance case is not won in the initial appeal, depending on the individual circumstances, an individual can increase their chances of eventually obtaining a security clearance by challenging the initial negative determination and putting on a strong case. Doing so can lay the foundation for eventually recovering or receiving a  security clearance.

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Each DOHA hearing before an administrative judge is unique so individuals are advised to have counsel represent them during the DOHA hearing process. If you need assistance with a security clearance issue, please contact our office at 703-668-0070 or here to schedule a consultation.

Divorce is one of life’s most difficult events, affecting individuals emotionally, financially, and professionally. For security clearance holders, it also raises an important question. Does your divorce affect your security clearance? It is important to understand that a divorce by itself does not automatically lead to security concerns with a security clearance. However, they can in certain circumstances. The key for a cleared individual is how they handle their divorce (financially, legally, personally). This can make all the difference in maintaining your security clearance eligibility.

These issues come up for both federal employees and government contractors equally. While the rules for these two different types of employees are similar, most of the same principles apply to both.

Divorces for Security Clearance Holders

Divorces are difficult, but they add an extra layer of concerns for security clearance holders. In theory, a divorce should not really affect a clearance holder’s security clearance. However, it can. For example, if the divorce triggers circumstances that raise security concerns, then issues can arise. These can include domestic issues, financial issues and other types of conduct concerns that can arise from a divorce. When looking at a security clearance, the focus isn’t on the divorce itself, but how well the individual manages the issues that come out of the divorce. The critical issue to maintaining your security clearance with a potential divorce pending is to plan carefully and take steps to resolve potential issues ahead of time.

This can sometimes be easier said that done. However, it is important to take these steps to avoid the security clearance appeals process.

Potential Risks During the Divorce Process

1. Financial Issues

Financial issues remain one of the most common reasons clearance eligibility is challenged. Divorce can seriously disrupt your financial portfolio. A divorce often involves the division of assets, increasing financial obligations (child, spousal support), and altering income and living arrangements. In some cases, a divorce can alter credit scores. A divorce can potentially impact finances so much that it may signal potential vulnerability to possible coercion.

Some Mitigating Issues:

• Do your best to maintain current on all financial obligations (especially child support or spousal support).
• Try hard to avoid defaulting on debts or falling behind on payments.
• Work with creditors to resolve pending financial issues related to the divorce.
• Document your efforts and show proactive management of your finances (keep copies of all records).
• If your financial abilities change significantly, make sure you talk to your facility security officer (FSO) or security office as required.
• For federal employees, work with qualified counsel for resolving OPM benefits issues.

2. Conduct, Contentiousness and Courts

Contentiousness is one of the biggest issues we see in divorce cases involving clearance holders. Security clearance adjudicators are always evaluating whether you act with integrity and sound judgment in all of your dealings. A divorce involving highly contentious litigation, allegations of domestic misconduct, alleged abuse, protective orders, or erratic behavior can trigger security concerns Guidelines E and J of Security Executive Agent Directive 4 (SEAD 4). In contentious divorces involving custody and other serious issues, it is not uncommon for a spouse to file for a Temporary Protective Order (TPO) against the other spouse out of anger or a criminal complaint of abuse. Often a spouse is extremely angry and may involve the police.

These types of issues can lead to financially devastating outcomes for the clearance holder and spouse as it can result in the suspension or loss of a security clearance. Of all of the security clearance cases we have had over the years, involving divorce, it is the contentiousness that often causes the most problems.

Ways to Manage these Issues:

• Keep the divorce proceedings civilized (this can sometimes be difficult).
• Inform your divorce attorney that you need to keep the divorce proceedings as civilized as possible (otherwise things can get out of hand quickly).
• Make sure you comply with all court orders.
• Keep calm in dealing with your spouse and avoid (to the extent possible) arguments.
• Avoid letting disputes become public or uncontrolled.
• Avoid Posting Issues Involving the Divorce on Social Media.
• If allegations arise, respond responsibly, seek legal advice, and ensure your security office is appropriately notified if required.

Reporting the Divorce

Most security clearance holders must report major life events including divorce, changes in cohabitation, or significant financial changes, usually as soon as possible. Failing to report is itself a potential clearance issue. When in doubt, it is best to seek advice in reporting these issues. Transparency is always preferable to omission or concealment. Not doing so, in many cases, can lead to the potential loss of a clearance and for some federal employees, loss of a clearance or discipline. This is not a major issue and can be handled easily.

Tips for Protecting your Security Clearance During a Divorce

1. Hire Competent Attorneys: for both the divorce and security clearance issues. These are two different areas of law so it is important, when security issues arise that you also have a security clearance lawyer working in conjunction with your divorce counsel.
2. Be Proactive Financially: review support obligations, marital asset division, cohabitation changes, and ensure plans for your post-divorce finances.
3. Maintain Financial Obligations: continue to pay support, manage debt, make payments, negotiate payment changes where needed, document your efforts and changes.
4. Communicate with Security: as required, and be sure your SF-86 or equivalent is updated accurately and fully.
5. Manage Personal Conduct Issues: comply with all legal orders, avoid public disputes or behaviors that may raise questions about judgment.
6. Keep Calm: in interaction with your spouse. The less anger and contentiousness, the better.
7. Retain Documentation: retain proof of payments, settlement documents, compliance with court orders, records of support, and correspondence with your security office or FSO.

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In most cases, a divorce will not affect your cleared career. For security clearance holders, the key is how you manage the transition. If you hold a security clearance it is important to get legal advice from a security clearance lawyer. Security clearance lawyers often work with divorce attorneys to coordinate the best possible outcome. We can be reached here for a consultation.

It is very critical for security clearance holders to both handle and protect classified and other sensitive information properly. Improper handling of protected information can (and often does) cost security clearance holders their security clearance. Adjudicative Guideline K of the Security Executive Agent Directive (SEAD 4) governs the safeguarding and management of classified, sensitive, and proprietary information for security clearance holders. Among other things, Guideline K addresses behaviors such as unauthorized disclosure, negligent handling, or failure to comply with security protocols, all of which can undermine trust in an individual’s reliability and judgment.

Security Concerns Under Guideline K

Failing to properly follow established procedures for handling classified, sensitive, or proprietary information, whether through carelessness or intentional disregard, can signal potential issues with an individual’s reliability, judgment, or willingness to protect critical information. Such behavior is treated as a significant concern in determining eligibility for access to protected materials.

Some Examples of Protected Information Security Concerns Under Guideline K:

1. Deliberate or negligent disclosure of protected information to unauthorized persons (example: discussing classified information at a party with friends);
2. Storing protected information in any unauthorized location (example: storing classified information on an unauthorized thumb drive);
3. Transmitting protected information on unauthorized equipment (example: sending classified information from a classified email to your own private email address);
4. Modifying protected information in an unauthorized manner designed to conceal or remove classification markings (example: whiting out SECRET marking on documents and taking them home);
5. Viewing information from a secure system when the information is beyond the individual’s need-to-know (example: accessing a classified database that you have not been approved to access); or
6. Any failure to comply with rules for the protection of classified or sensitive information (example: failing to properly secure a SCIF).

Mitigating Factors When Violations Occur

The following factors are considered when evaluating whether concerns regarding classified information have been sufficiently mitigated.

1. Time and Unusual Circumstances: The behavior occurred long ago, was rare, or happened under unique conditions, making it unlikely to happen again or reflect poorly on the person’s reliability and judgment (example: the failure to secure a SCIF you are responsible for was a one-time occurrence);
2. Positive Response to Counseling/Training: The individual has completed counseling or security training and now shows a responsible attitude toward security duties;
3. Training or Instruction Issues: The violation happened because of poor or unclear guidance, not deliberate misconduct; or
4. Accidental: The breach was unintentional, promptly reported, did not result in a compromise, and isn’t part of a recurring pattern.

Some Favorable Clearance Determinations Under Guideline K

Example A: Applicant had seven security violations under Guideline K between 2007 and 2018, including unauthorized hardware installation, improper handling of classified material, and repeated unauthorized entry of a personal cell phone into a SCIF. He accepted full responsibility and implemented corrective measures to ensure compliance with security protocols. Over the past three years, he has had no further incidents. His performance record was exemplary, and both his supervisor and the company’s security manager support his continued access to classified information. Clearance granted. Copy is located here.

Example B: Applicant, a federal contractor, routinely took unclassified materials home to use for work or scrap paper to write notes on while working for a government agency. On one occasion, he inadvertently brought home a classified cover sheet mixed with unclassified documents. In a panic, he tore it up and ate it to avoid detection, failing to report the incident. He later disclosed it during a failed 2018 or 2019 polygraph to a different government agency and expressed regret. In 2020, he found a 2007 timeframe email marked “Confidential” among personal papers and voluntarily turned it in at a SCIF, though he did not file a formal report, mistakenly believing it was optional. He since acknowledged mishandling both incidents and expressed remorse. While both events raised concerns, they appeared to be minor, and no compromise of classified information was likely. Copy is located here.

Some Unfavorable Clearance Determinations Under Guideline K

Example A: Applicant entered a SCIF with a cellphone on five occasions between September 2015 and January 2017. Although each incident was inadvertent and quickly discovered, three were not promptly reported. She later disclosed an additional violation involving her company cellphone. Separately, she mishandled classified material twice by leaving a classified PowerPoint and document unsecured on her desk overnight. Despite a strong performance record, the pattern of security violations reflected a repeated disregard for procedures, raising concerns about future compliance. Clearance denied. Copy is located here.

Example B: Applicant was highly regarded professionally and personally, but has admitted to sharing unclassified proprietary information with a friend against policy, inadvertently bringing a cell phone into a SCIF multiple times, and removing a classified monitor without proper clearance. The intentional disclosure and removal of classified labeling remain serious breaches. Despite these incidents occurring over ten years ago and the applicant’s subsequent positive work performance and promotions, the severity of the mishandling outweighed the mitigating factors. Clearance denied. Copy is located here.

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If you run into security clearance concerns under Guideline K, there are many options for a potential defense. Please contact us at (703) 668-0070 or here to schedule a consultation.

Illegal drug use and misuse can be a crucial factor in obtaining or maintaining a security clearance. Adjudicative Guideline H of the Security Executive Agency Directive (SEAD) governs drug involvement and substance misuse. Drug use refers to the illegal use of a substance or the misuse of a legal drug in a way that deviates from prescribed medical guidelines. This Guideline also evaluates the impact of drugs on an individual’s ability to obtain or maintain a security clearance.

Today, while certain drugs are being decriminalized or legalized at the state level, individuals seeking or holding a federal security clearance must recognize that federal regulations have not changed to match state laws. In other words, compliance with state law does not equate to compliance with federal standards. Unfortunately, this has led to many security clearance problems over the past 5 years.

Laws and Regulations

The laws and rules governing drug use and holding a security clearance are up the President. The Supreme Court has made this clear. Presidents, over the years, have developed an evolving framework regarding drug usage and security concerns. In this, presidents have included illegal drug use as a basis to deny or revoke a security clearance. Security Executive Agent Directive (SEAD 4) governs the adjudicative guidelines used to determine an individual’s eligibility for access to classified information.

Adjudicative Guideline H: Drug Involvement and Substance Misuse outlines the considerations and concerns the government evaluates regarding any history or pattern of drug involvement. SEAD 4 governs federal employees, government contractors and military personnel.

Guideline H Security Concerns for Drug Use

The Government takes illegal drug use and prescription drug misuse seriously in the contact of security clearances. Drug abuse or dependence may increase the risk of unauthorized disclosure of classified information by impairing physical or psychological functioning. As a result, improper or illegal use of drugs raises questions pertaining to an individual’s willingness or ability to protect classified information and comply with the laws and regulations.

Guideline H of SEAD 4 focuses on the following areas of misuse

• The illegal use of controlled substances, including the misuse of prescription and non-prescription drugs;
• Use of substances that impair mental or physical functioning; or
• The use of substances used in a manner inconsistent with their intended purpose.

Drug Use Clearance Mitigation

Security clearance adjudicators consider many different types of mitigating factors when evaluating drug use or prescription use cases. There are too many to list here. However, here are some considerations when they evaluate a security clearance case for mitigation.

1. Recency/Frequency: Was the drug use long ago and was it an isolated incident? Was there a pattern or repeated use?
2. Voluntary Cessation and Abstinence: Has the individual abstained for a significant period of time? Is there a risk that the use can recur?
3. Acknowledgment: Has the applicant or security clearance holder accepted accountability?
4. Change in Environment: Has the individual dissociated from drug-using peers and environments where drugs might be used?
5. Medical context: Was prescription misuse related to an illness, and has it since stopped? Has the individual since obtained a legal prescription for the medication they used improperly before?
6. Rehabilitation and treatment: Was treatment necessary? If so, was it sought? Was it effective?

Drug Use in Light of Marijuana State Laws

Today, we all know that many states have legalized marijuana for recreational or medicinal use. However, marijuana use remains illegal under federal law, and its use usually triggers security clearance concerns. The problem is that Congress has not changed the Controlled Substances Act, which classifies all marijuana use as illegal. As a result, federal clearance forms, such as the Standard Form 86 (SF 86) or eAPP, continue to ask about marijuana use, despite the legality of its use at the state level. One of the most common security clearance issues that we see in our office are clients that believed that because state law permitted marijuana use that it was acceptable. The Government always responds by pointing to training given to individuals holding security clearance which shows the contrary.

Examples of Favorable Determinations

The following are a few examples of favorable drug use cases:

Example A: An applicant admitted to marijuana use during college and as a graduate student. He has since abstained, provided character references from colleagues and friends, and demonstrated a stable employment history. Clearance granted. Copy of decision is located here. 

Example B: Between March 2021 and September 2023, the Applicant used legal cannabidiol (CBD) products under a state medical program to treat chronic back pain. The products contained less than 0.2% tetrahydrocannabinol (THC), which was below the federal legal limit. He has since stopped using CBD, is under medical care with a new treatment plan, and has no plans to resume use. Clearance granted. Copy of decision is located here.

Examples of Unfavorable Drug Use Determinations

The following are just a few examples of unfavorable drug use clearance decisions:

Example A: Applicant deliberately used marijuana from 2013 to at least January 2022 and minimized its seriousness during the interview process. He stated that he intended to continue to use marijuana after being granted a security clearance. Clearance denied. Copy of decision is located here.

Example B: Applicant admits to using marijuana intermittently from 2011 to 2018, including use while employed in a position that prohibited drug use. He used marijuana recreationally and for post-surgical pain, continued associating with users, and lived with a roommate who used it regularly. Although he initially stated in a 2018 security clearance application that he intended to keep using marijuana, he later changed his position after learning it remains illegal under federal law. Applicant testified he has no intent to use it again. However, the administrative judge found that the applicant did not show the requisite character or judgment of someone who has the maturity, integrity, good judgment, and reliability necessary to access classified information. Clearance denied. Copy of decision is located here.

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Security clearance decisions under Guideline H depend heavily on the individual’s specific facts, history, and demonstrated efforts toward reform and abstinence. With the growing trend toward the decriminalization and legalization of certain substances, it crucial for applicants to be honest about prior drug use. If you are facing a security clearance review involving drug use or prescription misuse, you should seek experienced legal counsel familiar with federal clearance adjudications. We can be reached at (703) 668-0070 or by contacting us here.

Security clearance reciprocity is a federal government policy that allows security clearance holders to move between government agencies without undergoing a new security clearance investigation. By speeding up the process of obtaining a new security clearance at a new agency, reciprocity enhances national security without requiring a new security clearance investigation. It also saves the government significant time, money and delays.  However, the process does not always work as intended. Reciprocity often involves unpredictable decisions and may often not work as it was intended. The government would benefit from improving the transition process because it would be an asset to national security.

Primary Goal of Security Clearance Reciprocity

The primary goal of security clearance reciprocity is to make it easier to enable a federal employee, military personnel y or government contractors to transfer a security clearance from one agency to another, provided that certain conditions are met. Reciprocity, when it works, avoids unnecessary delays in national security work and helps conserve government resources. Furthermore, it makes life a lot easier for security clearance holders who do not have undergo a whole new investigation before beginning work when they already have one. Reciprocity, when it works, is a benefit from everyone.

What Rules Govern Security Clearance Reciprocity?

Security clearance reciprocity is governed by a number of government laws, rules and regulations. These start with Executive Order 13467, which provides that government agencies should use reciprocity for security clearances. Security Agent Executive Directive 7 (SEAD 7) implements EO 13467 reciprocity rules and provides specific criteria for accepting prior investigations and adjudications. Additionally, Section 3001 of the Intelligence Reform and Terrorism Prevention Act requires timely processing of security clearances and encourages reciprocity unless disqualifying information exists.

Reasons Why Reciprocity May Not Be Possible

In many cases, reciprocity isn’t available for security clearance holders. Below are some examples when an individual’s existing security clearance may not be eligible for reciprocity and where gaining agencies may need to conduct additional security clearance processing.

• You are seeking to move to a higher-level security clearance;
• Your existing security clearance was granted on an interim, limited or one-term basis;
• The date of your last investigation, upon which your existing clearance is based, is older than seven years for Top Secret, 10 years for Secret, and 15 years for Confidential;
• The position for which you are being considered requires a polygraph (which was not the case previously) or a different type of polygraph exam than you have taken in the past;
• Your existing clearance was based on exception to standards (Appendix C, SEAD 4);
• You are currently cleared at the Confidential or Secret level, and the position for which you are being considered requires a Top-Secret level clearance; or
• The position for which you are being considered has Special Access Program (SAP) requirements (SAP access is treated very differently by each agency);

How Does the Security Clearance Reciprocity Process Work?

Reciprocity comes into play when the cleared individual seeks to move to a different agency. The individual will seek reciprocity for their existing security clearance. The gaining agency’s security office will check your eligibility in databases such as the Defense Information System for Security (DISS) or Scattered Castles (Intelligence Community clearances).

The gaining agency will then conduct a review of the adjudicative decision made by the original agency. If no flag or disqualifying information is present they will likely honor the prior adjudication. However, if  issues are discovered, the gaining agency may request additional information or simply deny reciprocity. If there are no issues, the individual’s clearance will then transfer and you will be given reciprocity.

The Limitations of Security Clearance Reciprocity

Security clearance reciprocity faces several issues. These include agency-specific requirements, the non-transferability of certain access levels, such as Sensitive Compartmented Information (SCI) or Special Access Programs (SAP), which often require separate adjudication, and challenges related to incompatible clearance databases across agencies. There is sometimes also a lack of trust between some federal agencies about the clearance investigations that they conduct.

The Government Accountability Office (GAO), in a 2024 report, mentioned this serious issue regarding reciprocity due to lack of trust among different agencies:

“According to ODNI officials, during their assessments of agencies’ national security background investigation and adjudication programs, they found that some agencies are not granting reciprocity. These agencies, according to ODNI, believe that other agencies accept levels of risk in their security clearance processes that are too high, resulting in a lack of trust in those agencies’ processes.”

The GAO Report also noted that another significant issue with reciprocity occurs in regards to communication by the government. Basically, the GAO found that government agencies need to do a better job communicating with government contractors when problems arise. A vast majority of contractors indicated that when problems arise, the government rarely communicates with them. This is a major area for improvement.

Examples of Clearance Reciprocity

A few  examples of how reciprocity can work:

1. Jim is a federal employee with a Secret level security clearance changing jobs within the Department of Defense (DOD) for a position requiring a Secret level clearance. In this example, the Secret clearance should transfer easily unless there are other issues that come up.
2. Samatha is retiring from the Army after a long career where she held a Secret security clearance and is going to work for a DOD government contractor where a Secret level clearance is required. In this example, Samantha’s reciprocity should be granted unless other issues arise.
3. Joan holds a Secret level security clearance with a DOD government contractor and seeks to go to another DOD government contractor which requires a Top-Secret security clearance. Reciprocity would not likely apply given that she would be going to a position with a higher-level security clearance in this example.
4. Jason has a Top-Secret level clearance with the Department of State (DOS) but is seeking a new position with the National Reconnaissance Office which requires a polygraph examination. Reciprocity would not likely be granted here given the lack of a polygraph examination in his previous position.
5. Kelly has an interim Secret clearance with the DOD and finds a new position with the DOS requiring a Secret clearance. It is unlikely that the interim clearance would transfer because it was not finalized. I say unlikely because reciprocity always seems to have possible exceptions.

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Security clearance reciprocity is intended to improve efficiency while upholding strict security standards. Under EO 13467, IRTPA, SEAD 7, and related government rules, there is a framework for the mutual recognition of adjudicative security clearance decisions across federal agencies. However, the effectiveness of reciprocity remains challenged by inconsistent implementation, and agency-specific requirements. Reciprocity often works smoothly and other times there are major issues. Many reciprocity issues cannot be predicted accurately. Please reach out to us if you wish to discuss your security clearance reciprocity issue at (703) 668-0070. or here.

Our law firm represents federal employees, military personnel and government contractors in security clearance issues involving foreign influence and preference.  Foreign influence concerns have always been a major security concern because there are potential risks when a clearance holder or applicant’s family or close friends are subject to potential duress or influence by a foreign power. There are also major concerns when an individual owns too much property or other assets in a foreign country with adverse interests towards the United States.

As a result, foreign Influence issues have long been major considerations in determining whether to grant or renew a security clearance.

What are Foreign Influence Concerns?

Security concerns involving foreign influence are evaluated by federal agencies under Guideline B of the Adjudicative Guidelines in Security Executive Agent Directive 4 (SEAD 4).  The security concerns involving SEAD 4 are listed as follows:

The Concern: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided alliance They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest.  Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism.

The specific conditions that may raise security concerns include the following 9 security issues listed in Paragraph 7 of SEAD 4:

a. contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or a resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;

b. connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’ s desire to help a foreign person, group, or country by providing that information or technology;

c. failure to report or fully disclose, when required, association with a foreign person, group, government, or country;

d. counterintelligence information, whether classified or unclassified, that indicates the individual’s access to classified information or eligibility for a sensitive position may involve unacceptable risk to national security;

e. shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion;

f. substantial business, financial, or property interests in a foreign country, or in any foreign­ owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest;

g. unauthorized association with a suspected or known agent, associate, or employee of a foreign intelligence entity;

h. indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure, or coercion; and

i. conduct, especially while traveling or residing outside the U.S., that may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country.

Potential Mitigation of Security Concerns Under Guideline B

In terms of potential mitigation regarding these potential security concerns, the following mitigating considerations are potentially available under Paragraph 8 of SEAD 4:

a. the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States;

b. there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;

c. contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation;

d. the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee;

e. the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and

f. the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.

Potential Foreign Influence Concerns for Clearance Holders

Here are just a few examples of security clearance issues that can arise from foreign ties for security clearance holders and applicants:

1. An individual’s uncle is a general in the Indian Armed Forces;
2. An individual inherits a house from their mother in Pakistan;
3. An individual marries a woman who has assets in Taiwan;
4. An individual previously served in another country’s military;
5. An individual’s mother currently lives in China;
6. An individual is close friends with an foreign service employee of another country;
7. An individual’s father is a citizen and resident of China and receives a pension;
8. An individual’s entire family lives in China and he/she has frequent contact with them;
9. An individual’s mother resides in Bulgaria;
10. An individual maintains investments in foreign countries;
11. An individual’s property an assets in another country outweigh their assets in the United States.

The number of examples is countless, and these are just a few of the types of cases we see on a regular basis.

Different Strategies for Handling Foreign Influence Concerns in Clearance Cases

There are multiple different types of situations that can raise foreign influence concerns for security clearance holders and applicants. When a security concern does arise, there are a number of strategies for attempting to mitigate cases involving potential security concerns.

The first issue that we usually evaluate is the foreign country involved. The United States treats foreign influence concerns vastly different depending on the country. For instance, a foreign relative in the United Kingdom or Germany would be evaluated completely different than an individual that has a foreign relative in China or Russia.

Next, it is important to first evaluate the closeness of any potential foreign relatives and friends in the context of whether or not they are truly close in nature or not. Where appropriate, it is important to argue that foreign relatives or friends are not close in nature or are not connected to a foreign government.  Closeness can be illustrated by a minimum of contact (email, telephone, in person visits) with individuals in foreign countries. Often, it is helpful to explain, in detail, how a foreign contact is not as close as they may appear on the application.

Also, in some cases it can be important to show how the clearance applicant or clearance holder has far more ties to the United States, in assets, family and friends and organizations than to a foreign country they are also tied to. For this type of situation, it is very important to obtain documentation to outweigh such ties, such as showing assets in the United States versus those in a foreign country. Other unique factors can come into play, such as if the individual in the United States is involved significantly in the community, earns a good salary and/or has children in the United States.

Early Mitigation in Foreign Influence Cases

When a clearance holder or applicant has ties to a foreign country, such as close family or assets, it is very important to evaluate these situations early, to attempt to mitigate security concerns. There are many methods available to attempt to mitigate foreign influence concerns, but it is important to focus on the following factors:

(1) Which country does the perceived foreign influence involve?;

(2) What is the  nature of the foreign property or asset; and

(3) Explain how these ties or assets are outweighed by assets, loyalty and family located in the United States.

There are many different mitigation strategies in foreign influence cases, but it is important to obtain advice from a security clearance lawyer when facing these issues.

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When a clearance holder or applicant is facing foreign influence security clearance concerns it is important to obtain legal advice and/or legal 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.