Criminal Conduct and Security Clearance Cases
Engaging in criminal conduct can cause serious issues not just in your personal life but also in your efforts to obtain or maintain a security clearance. Government agencies may consider someone with a record of criminal or unlawful behavior as too untrustworthy or unreliable to hold a security clearance. However, many federal employees and government contractors with a criminal record or allegations of unlawful behavior have been granted security clearances after demonstrating that these potential concerns are no longer an issue. Our law firm has successfully represented numerous federal employees, government contractors, and military personnel in security clearance cases involving criminal conduct and other security concerns.
Adjudicative Guideline J: Criminal Conduct
Security clearance adjudications follow the guidelines established in the Security Executive Agent Directive 4 (SEAD 4). Guideline J of the SEAD 4 Adjudicative Guidelines governs security clearance issues involving criminal conduct. Specifically, Paragraph 30 establishes the following concerns about criminal conduct under Guideline J:
“The Concern. Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules, and regulations.”
What is Considered to be Criminal Conduct?
As you might expect, applying for a security clearance with a history of felony convictions will likely raise security concerns. However, criminal conduct under Guideline J is defined very broadly. Any evidence of unlawful behavior, including allegations, may create a security concern regardless of whether you have been formally charged or convicted for that behavior. This includes felonies, misdemeanors, and even minor traffic infractions. Minor offenses are more likely to raise a security concern when they are part of a pattern of unlawful behavior. Even criminal conduct occurring years or decades before a security clearance adjudication may raise security concerns. Additionally, failure to comply with court-ordered requirements, such as probation, parole, or rehab, may raise a security concern. For military service members or veterans, dismissal or discharge from the Armed Forces for reasons less than “Honorable” is also a potential security concern.
How do Criminal Conduct Concerns Come Up?
Criminal conduct concerns can come up in various ways in the security clearance process. Prior criminal behavior or other potentially concerning conduct can be disclosed on security clearance forms or during investigations. When the unlawful behavior happens while you are already holding a security clearance, these issues may be disclosed during a periodic reinvestigation or if the behavior is reported by law enforcement or another source. A clearance holder may have a duty to immediately report their own criminal conduct.
How to Potentially Mitigate Criminal Conduct Concerns
In our security clearance practice, we often represent and advise individuals regarding their criminal conduct concerns that arise in the course and scope of holding or seeking to obtain a security clearance. Usually, if prior criminal conduct is under review, an individual can mitigate security concerns by demonstrating that their past behavior does not make them a significant security concern today. For example, if an individual has previously been charged and convicted for a crime, evidence of their rehabilitation, compliance with court-ordered penalties, and no further instances of criminal behavior can significantly mitigate the concern.
Specific Mitigating Factors for Criminal Conduct Concerns
Under SEAD 4, there are a number of potential mitigating factors for criminal conduct concerns listed in Paragraph 32. Conditions that could mitigate such security concerns include:
· A significant amount of time has passed since the criminal behavior happened.
· The criminal behavior happened under such unusual circumstances that similar behavior is highly unlikely to recur.
· The individual was pressured or coerced into committing the criminal act, and those pressures are no longer present in the individual’s life.
· There is no reliable evidence to support that the individual committed the offense.
· There is evidence of successful rehabilitation, including, but not limited to, the passage of time without additional criminal activity, restitution, compliance with terms of parole or probation, good employment record, etc.
Examples of Mitigation for Criminal Conduct Concerns
Of course, there are many different types of mitigation, and each security clearance matter is different. A mitigating factor in one person’s clearance matter may not apply in another person’s matter, and vice versa. The following are examples of some potential mitigation arguments that can be made in security clearance cases involving criminal conduct concerns, depending on the specific facts at issue:
· Evidence showing that the individual’s criminal charges were dismissed or amended to a lesser offense.
· Evidence that the individual fully complied with court-ordered fines, rehab, probation, or other penalties following a conviction.
· For matters concerning drug or alcohol-related crimes, evidence from healthcare providers or medical professionals indicating that substance misuse is no longer an issue.
· Evidence that the criminal conduct occurred long ago when the individual was young and immature, along with evidence that the individual has grown and matured since then.
· Other evidence, such as letters of support from family, friends, co-workers, and others, indicating that any prior unlawful behavior has been rectified and the individual does not pose a security concern today.
Case Examples of Criminal Conduct in Security Clearance Adjudications
The following are several case summaries of security clearance matters before the Defense Office of Hearings and Appeals (DOHA) involving Guideline J. These few examples provide a sample of the wide range of behavior that may constitute criminal conduct concern under Guideline J:
· ISCR Case No. 19-03523 → In a case involving indecent exposure on a university campus, Applicant was found to have mitigated his prior unlawful behavior by self-reporting the incident to the police, fully complying with the terms of his court-ordered probation, and maintaining a strong employment record.
· ISCR Case No. 22-01814 → In a case involving an Applicant with a history of DUI convictions, evidence of the significant and ongoing steps Applicant was taking to successfully maintain sobriety for over three years was sufficient to mitigate any concerns arising from his criminal record.
· ISCR Case No. 20-02903 → In a case involving domestic violence by Applicant, evidence that the criminal charges were ultimately dismissed and five years had passed without similar misconduct recurring served to mitigate the criminal conduct concern.
Depending on the nature of the criminal conduct, Guideline J is often raised in combination with other SEAD 4 Adjudicative Guidelines, such as Guideline E: Personal Conduct or Guideline G: Alcohol Consumption. Therefore, a successful security clearance adjudication requires mitigation of all applicable guidelines. Regardless, each case involving Guideline J is different, but we have found that many cases can potentially be mitigated with proper documentation showing that any prior unlawful behavior is no longer an issue today. For individuals seeking to obtain or maintain a security clearance, the more time that a lawyer has to assist them in establishing that their criminal conduct concerns have been mitigated, the better.
Contact Us
When a government contractor or federal employee is in need of a security clearance lawyer for issues involving criminal conduct concerns, it is important to obtain representation early in the process. Our law firm has extensive experience representing and advising individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Read more about us here.
