12 Tips for Responding to a Statement of Reasons (“SOR”)
If you are responding to a Statement of Reasons (SOR), this article presents our top 12 tactics and strategies for doing so. While most people who submit an application for a security clearance will in fact be granted a clearance and, thus, will not have to worry about how to appeal a denied or revoked security clearance, when then the government is unable to determine that it is “clearly consistent with the national interest” to grant a security clearance to a particular individual, the guidelines require that the case be referred to the Department of Hearings and Appeals (DOHA). The DOHA, in turn, is tasked with making a prompt determination as to whether to grant a security clearance or to issue a SOR.
When a security clearance is not approved, the DoDCAF (or other agency adjudicator) will issue a SOR. Prior to formally denying or revoking a clearance, the procedural guidelines require the federal agency to provide the applicant with a written SOR. The SOR is the key document that must be reviewed and analyzed when attempting to prevent your security clearance from being denied or revoked.
In short, the SOR will explain the basis for the potential denial or revocation and will list the specific security concern(s) at issue as listed in the Adjudicative Guidelines. Below each specific security concern, the SOR will list the specific allegations of disqualifying incidents or conditions drawn from your investigative file.
The SOR will be accompanied by letter, which explains the procedure for formally responding to the SOR. In short, you will be required to submit a detailed written answer to the SOR under oath or affirmation, specifically admitting or denying each listed allegation.
Responding to a Statement of Reasons (“SOR”)
For civilian and military employees, DoD Manual 5200.02, Procedures for the DoD Personnel Security Program, and Executive Order 12968, “Access to Classified Information,” set forth the clearance appeals process.
For government contractors, on the other hand, the clearance process falls under DoD Directive 5220.6, Defense Industrial Security Clearance Review Program and Executive Order 10865, “Safeguarding Classified Information within Industry,”.
It is highly recommended that all applicants for security clearances read the applicable regulations in order to familiarize themselves with the entire security clearance process. This is especially true if you have received a SOR.
Upon receipt of the SOR, you will also receive a one-page form that you will need to sign and date. By doing so, you are acknowledging receipt of the SOR. Importantly, this starts the clock in terms of the time within you must respond to the SOR. Thus, be sure to keep a copy of the signed form for your own records.
For government contractors, your response to the SOR must be received by the DOHA within 20 days of the date you acknowledge receipt of it. For military and civilian employees, although the time frame to respond may vary depending on the agency, most employees have 30 days to respond to the SOR.
If you fail to file a timely response to the SOR, then the government can discontinue processing your case, deny or revoke your security clearance without further consideration, and revoke any security clearances that you currently hold. Thus, it is imperative that you act quickly. Ignorance of the process or a misunderstanding of the regulations is not an excuse.
Twenty or thirty dates is not a lot of time to respond to a SOR, which will often require you to collect supporting documentation. Keep in mind that you can request an extension (deployed personnel in fact are encouraged to do so), but you must demonstrate “good cause.” Thus, the request for an extension does not have to be granted. A routine extension would be for a period of 20 or 30 days. Longer extensions will of course require stronger justification.
What constitutes good cause? Examples could include making a showing that the records are not in the applicant’s possession and must be requested or perhaps the applicant wishes to consult an attorney. All requests for an extension must be requested in writing and must be sent to the appropriate parties.
Applicants can request a copy of their investigative file any time after their investigation is complete. Thus, if you anticipate that you may receive a SOR, you should request the complete investigative file as soon as possible, as it may take up to a month to receive it. The Office of Personnel Management has a form to be used for this purpose. If you do not request your file until after you have received a SOR, you can use the text block located in Section Three of the form to ask that they expedite your request due to the limited time within which you have to respond to the SOR.
While the department counsel is obligated to provide the applicant with a copy of all relevant, material information, sometimes the department counsel will submit only portions of the investigation instead of the complete investigation. When this happens the applicant must request the full investigative report from department counsel, who will often times instruct the applicant to send a request to OPM for the full investigative report.
To be entitled to a hearing, you must specifically request a hearing in your response to the SOR. In the absence of a request for a hearing, the case will be assigned to an administrative judges for a clearance decision based on the written record only.
You should never waive your right to a hearing before DOHA. In our experience, often times the best chance to win at an appeal will occur at the formal hearing. This is because, at the hearing, applicants and their counsel are given the chance to speak directly to the judge and answer questions. All too often, applicants waive their right to a hearing before DOHA and submit just a written response. The result can be devastating considering careers can be ended. When applicants respond on their own, their responses are often incomplete and/or fail to mitigate important issues.
For government employees, it is better to have a full record before the PSAB in order to provide the best chance of success on the clearance action. For these reasons, a hearing is almost always recommended. This is especially true when the applicant faces significant security concerns, since judges tend to place more weight on direct testimony.
Responses to the SOR will be submitted under oath or affirmation. The SOR is usually written in numbered paragraphs so you can respond specifically to each charge. You will be required to respond to each issue by stating, “I admit” or “I deny.” All answers must be “sufficient.”
A general denial or other similar answer will be deemed insufficient. Moreover, rather than simply denying an allegation, you should provide information that explains, refutes, extenuates, or mitigates the allegation you are denying. Failure to do so could eliminate any possibility of having your case resolved favorably at this stage.
If an applicant receives a SOR, the key for a successful defense involves being able to refute the specific factual allegations or to mitigate them. Since mistakes are made in SORs, or the information is often outdated, the first step is to determine whether the allegations themselves are true, i.e. whether they were charged with driving under the influence, failed to disclose a criminal offense, or were untruthful with investigators during the investigation.
If the facts are true, the applicant will next find out what mitigating factors could be helpful in their particular case. To determine this, the applicant should review the National Security Adjudicative Guidelines for factors that can mitigate the corresponding security concern. Additionally, the Whole-Person Concept provides overall mitigation factors for security clearance matters. For example, after reviewing the Guidelines and the Whole-Person Concept, an argument could be made that the issue raised is an isolated incident that does not reflect the overall character of the person.
It is important to realize that, frequently, the facts contained in the SOR are not accurate. If you have any doubt about the validity of the allegation or as to the accuracy of numbers (such as debt) or dates, then a denial is appropriate.
This is important since, if an applicant admits any particular allegation in the SOR, the government is relieved of its burden to prove that specific allegation. An allegation that is denied, on the other hand, requires the government to go forward to show proof of the allegation. If you have any doubts as to whether or not a particular allegation should be admitted or denies, it is highly recommended that you consult with an experienced security clearance lawyer given these implications.
In addition, sometimes an allegation is partly true but also partly false. For instance, say you were convicted of a DUI as the allegation claims, but the date and/or the city the offense took place in is incorrect, or the offense was dismissed after you completed probation. Do not admit to the partially wrong allegation without clarifying what is incorrect. In the same vein, do not deny the allegation as a whole without explaining which part is true.
Many applicants provide lengthy, voluminous responses to the SOR. For most cases, this is not recommended. Instead, responses should be concise and limited to the scope of the allegation. In general, narrative responses can create more problems for the applicant than they solve. Thus, short but concise responses are usually preferred.
Occasionally, however, a longer, narrative response may be appropriate. Whether this is true in your case is best discussed with an experienced security clearance lawyer. Sometimes a narrative response may be required in order to address the real concerns raised by the SOR. For example, if the SOR claims that you failed to disclose a criminal offense, the real concern may not even be the offense itself, but rather that you are a liar. Thus, you need to not only explain the details surrounding the offense itself, but also why you did not disclose it. In short, deciding the level of detail to add and when to add it as well as what proofs to introduce and when to introduce them are strategy decisions that must be made carefully.
It should go without saying, but responses to the SOR must be truthful, factual, and accurate. Any third parties that you mention can and will be contacted for further investigation. If insufficient information is provided to the government to contact these individuals, then the government will propound interrogatories on the applicant concerning these individuals.
It is expected that most people, at one time or another, will have misbehaved in their youth. In general, the less recent the behavior, the less it will matter. Honesty, however, is crucial. Lies can and will come back to haunt applicants.
Even if your current position does not require a polygraph, you should keep in mind that most sensitive positions that you might later apply for could require a polygraph and that your answers on your initial clearance will be used as a baseline. In other words, lies will be discovered sooner rather than later. It is far better to come clean now, rather than to invest years of your life in a government career, only to eventually be locked out of it. Many, many people, for example, have disclosed their drug use and received a clearance. It is much more difficult, however, to mitigate a lie.
If you have documentary proof that a claim is wrong or partially wrong, you should include it with your response. For example, if the SOR claims that you owe a certain debt, which has been resolved, include documentation to prove the debt no longer exists.
In addition, the instructions that accompany the SOR lack practical instructions on how to respond to the SOR. For example, they do not specifically tell you when you should include supporting documents or what types of supporting documentation should be included in your particular case. The instructions also say nothing about attaching letters of recommendation from those who know you well that can attest to your credibility, reliability, trustworthiness, and judgment. Nor do they explain when you should include documents that show your professional achievements, academic achievements, community involvement, etc.
These items, however, can have a great bearing on the Whole-Person Concept assessment. Do not include irrelevant or ambiguous documents, however, which will just confuse things and present the reviewer with a stack of useless documents. The bottom line, however, is that supporting documentation is almost always critical to successfully mitigating or refuting the allegations.
While it is easy to become emotional in the security clearance process due to the implications a denial or revocation could have on your career, it is important to remember to only respond to the SOR with facts. Your response should never contain inflammatory language or disparage individuals or agencies. Instead, your response should remain professional. Your response to the SOR is the judge’s first opportunity to form an opinion of you. Thus, emotional responses, anger, and inappropriate arguments will only harm your case.
You should always keep copies for your own file of any and all documents that you have received or sent out with respect to the SOR. Frequently, clients contact Brett O’Brien Law, LLC for help with their security clearance and tell us that they have not kept copies of various important documents (whether the SOR itself or the applicant’s response to the SOR). Your security clearance lawyer will need to review any documents you have received or filed regarding your security clearance.
We hope that the information provided thus far has revealed that responding to a SOR is highly fact-sensitive and the strategy you decide to pursue is extremely vital in determining whether or not you will be successful. Although it is possible to represent yourself in these proceedings, we strongly urge you to consult with an experience security clearance lawyer.
Even the most comprehensive written instructions cannot provide case-specific guidance. Moreover, given the far reaching implications that this process will have on your career, the importance of hiring a knowledgeable lawyer is all the more important.
Moreover, it is important to realize that the Office of Personnel Management (OPM) and Defense Office of Hearings and Appeals (DOHA) are not your friends. While some applicants mistakenly assume that these agencies are there to assist them throughout the security clearance appeal process, neither the OPM nor the DOHA is available to assist you or to offer guidance throughout the process. In fact, their respective goals and obligations – which include determining whether it is clearly consistent with national interest to grant or continue security clearance for an applicant — is not consistent with your goal.
Hiring an attorney to represent you in a security clearance denial or revocation is an investment in yourself. If you think it is important to hire a financial advisor to invest in the stock market or to hire an accountant to do your taxes, you should similarly invest in yourself by hiring an attorney who has experience with security clearances to invest in your career and secure your livelihood.