Fedcas Blog

The Federal Clearance Assistance Service (FEDCAS) offers guidance and information through their blog and services, to both security clearance applicants and their employers. To the benefit of those looking to obtain or renew their security clearance, the Fedcas Blog, covers topics like basic Clearance Procedures, general Policies and Standards, and Current News and Updates. In addition, author William Henderson, discusses the topic of Special Issues and how they can effect an applicant chance of obtaining a security clearance; and offers up suggestions on how an applicant can Improve their Chance for Success throughout the process. For those looking for more personalized assistance, FEDCAS also offers private Consulting Services to both applicants and employers to help address more specific issues.

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Federal Investigative Standards

In June 2008 the President issued Executive Order (EO) 13467, “Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility Access to Classified National Security Information.” The goal of the EO was to align the three major federal personnel security programs, provide consistent standards, facilitate reciprocity,  and create a system where “. . . each successively higher level of investigation and adjudication shall build upon, but not duplicate, the ones below it.”  Seven years later progress toward this goal has been disappointing.

In December 2008 the Director of National Intelligence (DNI) and the Acting Director of the Office of Personnel Management (OPM) approved new Federal Investigative Standards (FIS) to comply with EO 13467.  The 2008 FIS created a three-tier concept and represented the most significant change to investigations since 1953.  Incremental implementation of these standards was planned to begin in spring 2009, but nothing happened.  By early 2010 it was evident that the 2008 FIS had been scrapped.

In August 2010 OPM and DNI issued a memorandum advising federal agencies of a different set of changes to the FIS and the transition period for implementing those changes.  A year later the changes were fully implemented.  These revised standards represented a significant retreat from the three-tier concept approved in December 2008. They were essentially the same as the investigative structure that existed for over a decade, except that a few superfluous investigations were eliminated.

In December 2012 OPM and DNI approved yet another new FIS.   The new FIS consist of five tiers of investigations.  Tier 2 to Tier 5 each has a separate reinvestigation requirement (i.e. Tier 2R, Tier 3R, Tier 4R, and Tier 5R).  Initially the new FIS were to be implemented within 180 days; however a less aggressive phased implementation plan was later approved.  It wasn’t until October 2014 that OPM rolled out Tier 1 and Tier 2 investigations and October 2015 when OPM implemented Tier 3 investigations.

Neither the new 2012 FIS nor its implementation plan has been made public.  However, according to the 3rd Quarter FY2015 “Cross Agency Priority Goals for Insider Threat and Security Clearance Reform,” the Initial Operating Capability (IOC) for Tier 4 and Tier 5 investigations is expected by October 2016, and Full Operating Capability (FOC) for all Tier level investigations is expected by September 2017.  The difference between IOC and FOC is not clear, but FOC probably includes the change to a five-year reinvestigation interval for Tier 3 and implementation of new Continuous Evaluation requirements for Tier 5.  It may also include the new requirements that “Queries be conducted against the most complete criminal history repository of the law enforcement agency(s) for any jurisdiction. . . .” and that “When appropriate, statements shall be taken from the Subject and signed pursuant to 28 U.S.C. 1746.”

INVESTIGATION POSITION REQUIREMENT REINVESTIGATION FORM
NEW OLD NEW OLD
Tier 1 NACI Low Risk, Non-Sensitive, including HSPD-12 Credentialing None None SF85
Tier 2 MBI Moderate Risk Public Trust (MRPT) Tier 2R NACLC SF85P
Tier 3 NACLC & ANACI Non-Critical Sensitive National Security, including Secret & “L” access eligibility Tier 3R NACLC SF86
Tier 4 BI High Risk Public Trust (HRPT) Tier 4R PRI SF85P
Tier 5 SSBI Critical Sensitive and Special Sensitive National Security, including Top Secret, SCI, and “Q” access eligibility Tier 5R SSBI-PR & PPR SF86

Note: Reinvestigations for MRPT and HRPT positions are already required at five-year intervals.  Descriptions of the “traditional” (old) investigations are listed in an October 2011 article.

There are some anomalies in the 2012 FIS and in its implementation:

    • In a redacted version of the 2012 FIS obtained under the Freedom of Information Act, the Enhanced Subject Interview (ESI) is listed as being optional for Tier 2 investigations.  This was supported by Federal Investigative Notice No. 15-03 (FIN 15-03), which offered Tier 2 investigations with and without an ESI.  However, no such option was included in the OPM schedule of investigations and billing rates for FY2015 (FIN 14-07) or for FY2016 (FIN 16-01).
    • Title 5 Code of Federal Regulations Part 1400 (5 CFR 1400), “Designation of National Security Positions,” made it a requirement that non-critical sensitive national security positions also be designated as MRPT.  This creates a problem unless ESIs are either not required or only optional for MRPT, thereby permitting Tier 3 investigations to be used for this purpose.  Otherwise, OPM no longer offers a single investigation for non-critical sensitive positions that are also designated MRPT.  MRPT positions currently require reinvestigations at five-year intervals, but 5 CFR 1400 only requires reinvestigations at five-year intervals for those non-critical sensitive positions that don’t require access to classified information.
    • Even though E.O. 13467 mandates consistent Government-wide standards, the FIS again fails to address investigative standards for interim clearances.  DOD issued its own new standards for interim Secret clearances in January 2014.   Title 5 CFR 1400 also creates different standards for some non-critical sensitive positions and for federal competitive service positons.

Thus far the only major change to investigative scope appears to affect Tier 3.  Instead of different investigations for two different groups of applicants—the ANACI for federal civilian employees and the NACLC for military and contractor personnel—Tier 3 is now applicable to both groups and closely resembles the scope of an ANACI investigation.  By itself this change will increase average investigative time for Secret clearances.  The written inquiries (INV Forms 41, 42, and 43), which are sent out and returned by U.S. Postal Service Mail as part of Tier 3 investigations, will become the pacing factor in most cases.  It follows that potentially disqualifying information will be developed in a greater percentage of cases, resulting in longer turnaround times.

It seems that the changes to the FIS will not do much to meet the objectives of E.O. 13467.  The broad definitions of national security positions contained in 5 CFR 1400 are a step in the right direction, but they don’t go far enough.  Having three different application forms is probably the greatest impediment to aligning investigations.  The SF85 doesn’t ask about criminal convictions, and neither the SF85 nor the SF85P has any questions regarding foreign connections or allegiance to the U.S.  Until the three existing major federal personnel security programs are conflated and one standard application form and one set of adjudicative criteria replace the three in existence, it’s doubtful that the necessary changes can be made to fully align the investigations.  Regardless of the stated purpose of each program, they all affect national security and should use the same basic standards.  For example the potential for undue foreign influence should be considered not just for security clearance eligibility, but also for determining a person’s suitability for federal employment and for access to federal facilities or computer systems.  It’s illogical not to consider sympathetic association with people involved in sabotage, espionage, treason, terrorism, or sedition against the U.S. as a potentially disqualifying condition under all three programs.

Perhaps one of the underlying problems is E.O. 13467 itself.  It created two separate Executive Agents—one for national security and one for federal employment suitability/fitness, further delineating the differences between these two domains.  The simple solution would be to designate all Government jobs as national security positions.  Public Trust positions could be redesignated as either non-critical or critical sensitive, and Public Trust designations could be completely eliminated (Positions of trust designated non-critical or critical sensitive that don’t involve access to classified national security information have existed for decades in the federal Government).

By William H. Henderson
Copyright © 2016 Federal Clearance Assistance Service.  All rights reserved.

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OPM Investigation Price Increases

Over the past two years the Office of Personnel Management (OPM) has increased the price of their standard investigations an average of about 48 percent.  In October 2014 OPM introduced Tier 1 and Tier 2 investigations to replace the National Agency Check with Inquiries (NACI) and the Moderate Risk Background Investigation (MBI), respectively.   In October 2015 they introduced Tier 3 investigations to replace both the National Agency Check with Law and Credit (NACLC) and the Access National Agency Check with Inquiries (ANACI).  Tier 1 and Tier 2 investigations are not significantly different from the investigations they replaced, and the Tier 3 investigation is very similar to the ANACI.  However, since FY 2014 the prices for these three investigations increased an average of 78 percent.  The price of the Tier 3 (ANACI) investigation increased an incredible 118 percent.

INVESTIGATION FY 2014 FY 2015 July 2015 FY 2016 2 YEAR
TYPE PRICE PRICE PRICE PRICE INCREASE
NACI (Tier 1) $122 $171 $189 $182 49.2%
MBI (Tier 2) $855 $1,044 $1,156 $1,423 66.4%
NACLC (Tier 2R & 3R) $210 $368 $408 $372 77.1%
ANACI (Tier 3) $272 $381 $422 $595 118.8%
BI $3,045 $3,635 $4,026 $3,615 18.7%
PRI $785 $838 $928 $1,028 31.0%
SSBI $3,959 $4,568 $5,059 $5,188 31.0%
SSBI-PR $2,768 $3,196 $3,540 $3,384 22.3%
Phased PR $1,888 $1,961 $2,127 $2,304 22.0%
Enhanced Subject Interview $550 $663 $663 $795 44.5%

Note: Tier 2R and Tier 3R are the reinvestigations for Tier 2 and Tier 3 investigations. Descriptions of the “traditional” investigative products are listed in an October 2011 article.

From FY 2014 to FY 2015 OPM increased the prices of their standard investigations an average of 26 percent.  In July 2015 OPM announced an immediate and retroactive additional price increase of about 10 percent for these same investigations.  Initially OPM stated that these increases were needed to cover unplanned costs related to the termination of OPM’s contracts with USIS at the end of September 2014.  Later OPM also stated that other federal agencies would have to help pay for the costs of credit monitoring and related services associated with the massive breach of their security clearance data earlier this year.  Recently OPM included “information technology security and system enhancements to protect against cyber-attacks and to advance efficiencies” as additional reasons for the price increases.  In October 2015 OPM increased the prices of investigations another 8 percent on average for FY 2016.

Except for the Enhanced Subject Interview (ESI), the prices shown in this chart are for standard investigations without added coverage or priority service.  The ESI is listed here because it is an integral part of many investigations, it can be added to other investigations, and it is the single most expensive element of an investigation.  Tier 3 (ANACI) will be the most frequently requested investigation this year and in future years.  It’s the investigation needed for initial Confidential and Secret clearances for military, contractor, and federal civilian employees.

The new Federal Investigative Standards (FIS) consist of five tiers of investigations, plus separate reinvestigations for Tier 2 through Tier 5.  According to the 3rd Quarter FY2015 “Cross Agency Priority Goals for Insider Threat and Security Clearance Reform,” the Initial Operating Capability for Tier 4 and Tier 5 investigations is expected by October 2016 and Full Operating Capability for all Tier level investigations is expected by September 2017.  FOC will probably include the change to a five-year reinvestigation interval for all Tier 3 positions and implementation of new Continuous Evaluation requirements for Tier 5.  When these additional changes are implemented, the cost of individual investigations may only change slightly, but the overall spending on investigations will increase significantly.  In FY 2014 before their prices began to increase dramatically, OPM received $855 million in revenue from background investigations.  This was about a 15 percent decline from their FY 2013 revenue of $1,003 million resulting from a 14 percent decline in the number of investigations requested.  OPM only increased it prices marginally from FY 2010 to FY 2014.

There are changes being considered that could further impact the cost of investigations. There is a study to determine whether background investigations “should be an inherently governmental function, and if not, whether it could be performed by a non-profit, private sector corporation. . . .”  Another study seeks to determine whether the current DoD approach for obtaining personnel security investigations and reinvestigations from OPM is the most efficient and effective approach.   DoD accounts for about 80 percent of OPM’s investigative workload.  There is also reportedly a recommendation to create a new agency (the National Investigative Service Agency—NISA) and transfer the responsibility to conduct personnel security investigations for the federal government from OPM to NISA.

Except for only a fraction of one percent of all cases, none of this affects individual applicants or federal contractors. Almost all federal agencies that purchase investigations from OPM pay for the investigations using appropriated funds and will have to adjust their budgets to absorb the price increases.  It should be possible for them to partially offset the higher prices by scaling back on the number of positions that require the more expense investigations.

William H. Henderson
Copyright © 2016 Federal Clearance Assistance Service.  All rights reserved.

Posted in News & Updates | Comments Off on OPM Investigation Price Increases

Due Process Denied — The LOJ Problem

In April 2014 a DOD Inspector General report (DODIG-2014-060) found that agencies were avoiding the “due process” requirement of Executive Order 12968, “Access to Classified Information,” in situations where a clearance applicant’s need for access to classified information was terminated.  The report stated:

We recommend that. . . in substantiated misconduct cases personnel security clearance adjudicative actions continue, even if the contractor employee has been terminated and/or no longer has access to classified information.

This recommendation by the DOD Inspector General pertains to DOD agencies’ use of “Loss of Jurisdiction” (LOJ) as justification for not adjudicating potential clearance eligibility issues.  But LOJ not only affects people with eligibility issues, it also affects anyone who loses clearance sponsorship before their clearance eligibility is adjudicated.  In many cases LOJ has the same effect as a clearance denial or revocation without the “due process” required for these actions.   This leaves many people in security clearance limbo

LOJ is a major problem affecting thousands of former DOD contractor, civilian, and military personnel each year.  For contractor personnel the number of LOJs may significantly exceed the number of clearance denials and revocations each year.  The mere existence of LOJ in a clearance database record often results in a qualified job applicant being non-selected for a position requiring a security clearance.  Job applicants are unable to receive a clearance eligibility determination and have the LOJ removed without clearance sponsorship, and they are unable to obtain sponsorship due to the stigma of LOJ.

LOJ occurs when an individual’s clearance sponsorship is withdrawn while any clearance adjudication is pending.  An employer must withdraw clearance sponsorship when the employment of a cleared individual or clearance applicant is terminated or when a written offer of employment for a cleared position is rescinded.  LOJ permits DOD Central Adjudication Facilities (CAFs) to avoid making clearance decisions even when no further investigation is needed.  This results in people being denied the normal “due process” of having a decision made regarding their clearance eligibility.  LOJ can be an almost insurmountable obstacle for people trying to obtain employment that requires a federal security clearance.

Some LOJ cases involve completely clean cases where applicants are merely victims of poor timing, but most LOJ cases involve admissions or allegations of misconduct or other security concerns.  LOJ prevents people from submitting and having information considered by a DOD CAF that might refute or mitigate the security concern.  The alleged security concern can be minor or major or completely bogus and can arise from an initial personnel security investigation, a periodic reinvestigation, or a report of unfavorable information (Incident Report).   LOJs commonly fall into two categories:

A.  Clearance sponsorship is withdrawn after the applicant’s clearance investigation has been completed, but before a final clearance eligibility determination is made.  This usually occurs when:

  1. an employer cannot continue employing an individual in an uncleared position while waiting for a final clearance determination,
  2. an employer rescinds a conditional offer of employment because the clearance process takes longer than acceptable to fill a job vacancy, or
  3. an individual is laid off due to a reduction-in-force or is separated from the Armed Forces.  This can include situations where an applicant had a Secret clearance and was pending adjudication for a Top Secret clearance.

B.   Clearance sponsorship of a cleared individual is withdrawn due to employment termination and:

  1. an Incident Report, which may contain inaccurate or biased information, was submitted by the employer to a DOD CAF shortly before or after employment termination, or
  2. the individual’s clearance was temporarily suspended pending further adjudicative action.

When clearance sponsorship is withdrawn under any of these circumstances, DOD CAFs annotate LOJ in the person’s Joint Personnel Adjudication System (JPAS) record.  If there’s an unresolved Incident Report or a clearance suspension, the individual’s name in his/her JPAS record is highlighted in red.

When a person applies for a new position that requires a security clearance, the prospective employer’s security officer will immediately see the LOJ in the person’s JPAS record.  Because LOJ strongly suggest the existence of a clearance eligibility problem that may require considerable time to resolve, potential employers often reject these job applicants in favor of other candidates with readily reinstatable clearances or with no prior clearance.

For people in category 1 (above) LOJs occur primarily because of delays in clearance adjudication caused by security issues present in their cases.  If LOJ did not occur, most would ultimately receive a security clearance.  Some of these people are able to obtain a subsequent job offer, clearance sponsorship, and have their completed background investigation favorably adjudicated in a timely manner.  Most others, who are equally qualified, will not receive a job offer and new sponsorship, because prospective employers will view their clearance eligibility as being problematic and requiring too much time to resolve.  People in category 2 rarely receive a job offer for a cleared position.  The red flag in their JPAS record alerts the prospective employer’s security officer that the clearance has been suspended or an unresolved Incident Report exists and that any attempt to have the clearance reinstated will probably encounter significant delays.

LOJ not only affects individuals.  It affects Government and private employers by discouraging them from hiring qualified people, because of potential delays in putting them to work in cleared positions.  The Government has already paid the vast majority of the cost of security clearance vetting for these people.  If they are unable to obtain new sponsorship within a reasonable period of time, this is money that will be wasted.  It also will result in the loss of valuable human capital.

The current DOD LOJ policy needs to be changed.  DOD should provide all clearance applicants “due process” and make clearance eligibility determinations, even if the applicant’s employment and need for access to classified information was terminated.

By William H. Henderson
Copyright © 2015 Federal Clearance Assistance Service.  All rights reserved.

Posted in Special Issues | Comments Off on Due Process Denied — The LOJ Problem

The Statement Of Reasons

When the security clearance investigation of a contractor employee is completed by the Office of Personnel Management (OPM), the investigative file, which is called a Report For Adjudication (RFA), is sent to the Industry Division (Division A) of the DOD Consolidated Adjudications Facility (DOD CAF). If the RFA is for a Secret clearance and does not contain any potentially disqualifying information, the RFA can be favorably adjudicated by computer (eAdjudication) and the clearance can be granted without any further review. When the RFA for a Secret clearance contains potentially disqualifying information or when the RFA is for a Top Secret clearance, the case is assigned to a DOD CAF staff adjudicator.

Sometimes there is insufficient information in the RFA for the adjudicator to make a clearance decision. If this occurs, the adjudicator either returns the RFA to OPM for further investigation or sends a written “Interrogatory” requesting additional information directly from the applicant. When adjudicators have sufficient information to make a clearance decision, they can either grant the clearance or write a Statement of Reasons (SOR), explaining why granting a clearance is not “clearly consistent with the interests of national security.” The SOR must provide “as comprehensive and detailed a written explanation of the basis for that conclusion as the national security interest of the United States and other applicable law permit.” The SOR is a preliminary decision to deny or revoke a clearance. Once it’s completed, it’s sent to the Defense Office of Hearings and Appeals (DOHA) for review and approval, before it’s sent to the applicant.

If you receive an SOR, it will be sent to your Facility Security Officer (FSO) in a double envelope. The sealed inner envelope will be given to you unopened. The outer envelope will contain a letter that you must sign and date, acknowledging receipt of the inner envelope. You should ask for and keep a copy of the receipt. Your FSO will return the original receipt to DOD CAF. You are required to submit a written response to the SOR within 20 days of the date you sign for it. Failure to do so will result in your clearance being denied or revoked without further consideration. If you need extra time to write your SOR response or collect documents to support it, it’s usually possible to request and obtain a 20-day extension. Longer extensions require strong justification. The SOR cover letter will list a DOD CAF email address where you can send your request for an extension.

You can request a copy of your investigative file from OPM any time after the investigation is completed. If you anticipate receiving an SOR, it’s wise to request a copy of the investigative file as soon as possible, because it may take a month to get it. OPM has a form specifically for this purpose. If you request your file after you receive an SOR, in the text block at section 3 of the form you can ask that your request be expedited because of the limited time you have to respond to your SOR. Cite your ISCR Case number, which can be found in the upper right portion of the first page of your SOR. You can also ask that the file be sent to you via email.

The two-page cover letter included in the SOR packet provides basic information on how to answer the SOR. The packet also contains a one-page form that is intended to be used as the last page of your SOR response. On this form you can choose to request a hearing before a DOHA Administrative Judge (AJ) or to request that your case be decided by an AJ based solely on the written record. At the bottom of the form is a “jurat” where you will swear/affirm that your SOR response is true and correct and have your signature notarized. You should be aware that even if you don’t request a hearing, the DOHA attorney assigned to your case has the option of requesting a hearing.

The SOR will quote each applicable security concern as listed in the Adjudicative Guidelines. Below each concern will appear one or more subparagraphs with allegations of specific potentially disqualifying incidents or conditions drawn from your investigative file. The SOR cover letter instructs you to answer each subparagraph by stating, “I admit” or “I deny.” The instructions go on to say, “You also may provide additional information that explains, refutes, extenuates, or mitigates the [allegations].” In reality failure to provide “additional information” will eliminate any possibility of having your case favorably resolved at this stage.

The cover letter to the SOR lacks practical instructions on how to answer the SOR. For example, the instructions don’t specifically state that you can attach supporting documents to your SOR response—supporting documents are almost always critical to successfully refuting or mitigating allegations. The instructions say nothing about attaching letters of recommendation attesting to your judgment, reliability and trustworthiness from people who know you well. Nor do the instructions mention attaching other documents that show professional/academic achievements, constructive community involvement, honorable military service, etc. These are things that can favorably influence a “Whole-Person” assessment.

DOD 5200.2-R (Personnel Security Program) is being superseded by a newer regulation, but at Appendix 11 of the regulation, starting at page 168, there’s a sample SOR and practical, detailed instructions for responding to an SOR. The sample SOR and the instructions are for military and DOD civilian applicants. So, some of it (e.g. the format, the suspense dates and reporting channels) doesn’t apply to DOHA cases involving contractors, but much of the content is useful to anyone responding to an SOR.

If you have strong writing and analytical skills, you may still need to consider at least a brief consultation with a clearance attorney or personnel security consultant to help you prepare your SOR response. Even the most comprehensive written instructions cannot provide case-specific guidance. If you aren’t confident in your ability to successfully respond to the SOR, you will want to consider hiring a knowledgeable professional to help prepare your SOR response.

You will submit your SOR response to DOD CAF; however, your SOR response will be forwarded from DOD CAF directly to DOHA without being reviewed at DOD CAF. The DOHA Chief Department Counsel may approve the withdrawal of your SOR based solely on your written SOR response. If this occurs, your clearance will be granted or continued without further action. This can shave two to four months off your clearance process. Otherwise, your case will be assigned to a DOHA AJ for either a hearing or a decision based on the written record. Either way, you’ll have the opportunity to be represented by counsel, make a complete presentation, and develop a full factual record, as well as make arguments to be considered by an AJ, who is an independent decision-maker. In any event as soon as you’ve submitted your SOR response, it’s wise to begin gathering additional documents and preparing your case for presentation to an AJ.

By William H. Henderson
Copyright © 2015 Federal Clearance Assistance Service. All rights reserved.

Posted in Clearance Procedures | Comments Off on The Statement Of Reasons