Reasons for the Denial or Revocation of a Security Clearance
Within six months following your application for a clearance, the government should render its decision. If the government denies or revokes your clearance, you will be issued what is known as a Statement of Reasons, or “SOR.” The SOR will explain the basis for the denial and will outline the specific areas of concern that resulted in the decision. It will also advise you of your right to submit a written rebuttal and your right to a hearing.
In making determinations of eligibility for security clearances, adjudicators are to consider the National Security Adjudicative Guidelines covering: (1) 13 specific areas of concern; (2) factors that might mitigate the 13 areas of concern; and (3) general factors related to the person as a whole.
Notably, as explained in item (2) above, in addition to the 13 adjudicative guidelines that can be used to deny an applicant, the guidelines also require adjudicators to consider a list of conditions that might mitigate the security concern, thereby allowing the adjudicators to grant a security clearance. Examples of these factors will of course differ depending on the reason for denial/revocation, but can relate to the completion of rehabilitative programs, the amount of time that has elapsed, or the circumstances surrounding the act.
The National Security Adjudicative Guidelines establish the criteria for all U.S. government civilian and military personnel, consultants, contractors, licensees and others who require access to classified information. Security clearance eligibility determinations take into account an individual’s stability, trustworthiness, reliability, character, honesty, and judgment. In order to be issued a security clearance, the individual must demonstrate unquestionable loyalty to the United States.
According to Department of Defense Directive 5220.6, the adjudicative process is intended to examine and weigh a number of variables in order to render a determination that the individual is an “acceptable security risk.” This is also known as the “whole person concept.”
In reaching a decision, “[e]ach case must be judged on its own merits” and the “final determination responsibility of the authorized adjudicative agency.” Further, any doubt concerning eligibility for national security eligibility should be “resolved in favor of national security.” See DoD Directive 5220.6.
National Security Adjudicative Guidelines – Issues and Mitigation
The 13 guidelines that must be considered in determining whether or not to grant a security clearance include:
- 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 and Substance Misuse
- Guideline I: Psychological Conditions
- Guideline J: Criminal Conduct
- Guideline K: Handling Protected Information
- Guideline L: Outside Activities
- Guideline M: Use of Information Technology
With respect to mitigation, however, each of the above 13 guidelines should be evaluated while taking into consideration each of the following factors:
- The nature, extent, and seriousness of the conduct;
- The circumstances surrounding the condict;
- The frequency and/or the length of time that has elapsed since the conduct;
- The applicant’s age/maturity at the time;
- The extent to which participation was voluntary;
- The presence of rehabilitative or other permanent behavioral changes;
- The motivation for the conduct;
- The potential for undue influence, exploitation, or duress; and
- The likelihood of recidivism.
Whether or not a single episode will be sufficient to deny or revoke a security clearance is case specific. Although adverse information concerning a single factor may not be sufficient in some cases, it may if the information demonstrates a pattern of questionable judgment, irresponsibility, or instability. Moreover, a single factor alone may be sufficient to deny or revoke a clearance if the circumstances demonstrate a security risk.
When dealing with revocations of security clearances, the adjudicator should consider whether the individual:
- Reported the information on a voluntary basis;
- Was truthful in responding to questions;
- Sought help/counsel/guidance, if applicable;
- Resolved or will likely resolve the security concern;
- Demonstrated positive changes in behavior; and
- Should have their eligibility suspended pending final adjudication.
If your security clearance was denied or revoked, the experienced security clearance denials lawyers at the Brett O’Brien Law, LLC today. We can assist you in navigating this complex process and will effectively employ the Adjudicative Guidelines to your benefit. Contact us today.