What If I Don’t Want A Hearing?

Most defense contractor applicants for security clearance*, who receive a Statement of Reasons (SOR), have the choice of requesting a hearing before a Defense Office of Hearings and Appeals (DOHA) Administrative Judge (AJ) or requesting that an AJ make a decision based solely on the written record without a hearing.  The applicant must submit a written response to the SOR in order to choose one of these options.  Failure to respond to the SOR within the prescribed time results in automatic clearance denial or revocation and forecloses any right to an appeal.

If you receive an SOR and choose to have your case decided by an AJ without a hearing, your SOR response will still be reviewed by a DOHA attorney, known as a Department Counsel (DC).  An SOR response that clearly refutes or mitigates all the security concerns could result in the SOR being withdrawn by DOHA.  In this case your clearance would be granted or continued without any further action.  If the DC decides that your SOR response did not refute or mitigate all the security concerns, you will be sent a document called a File Of Relevant Material (FORM) before your case is submitted to a DOHA AJ.  You should receive the FORM about a month or two after you submit your SOR response.

Receiving and answering the FORM is essentially the same as the exchange of information that occurs between the applicant and the DC prior to a DOHA hearing.  The FORM lists the documents the DC will provide to the AJ.  A copy of each document is included with the FORM for your review.  Typically the FORM will include the following:

  • Electronic Questionnaires for Investigations Processing (e-QIP) version of the Questionnaire for National Security Positions (SF86).
  • Statement of Reasons and Applicant’s answer to the Statement of Reasons with attachments.
  • Report of Personal Subject Interview.
  • Other documents relevant to the issues cited in the SOR (e.g. credit reports, bankruptcy records, psychological reports, criminal records, request for Administrative Notice of facts regarding a foreign country, written interrogatory and interrogatory response, etc.).

The FORM is accompanied by a cover letter that provides contact information for the DC assigned to your case.  You will have 30 days to submit your objections to any of the documents listed in the FORM and to provide any additional information and documents you wish to be considered.  Unlike the pre-hearing exchange of information between the DC and the applicant, the FORM will contain a brief statement of the relevant facts, including the allegations in the SOR and your response to the allegations.  It will also contain the basic argument for why you should not be granted a security clearance.

You’re not required to submit a response to the FORM, and if you choose not to respond, the AJ will decide your case based solely on the FORM.  In most cases your response to the FORM will be critical.  You’re at this stage of adjudication because your SOR response failed to convince the Government that you should be granted a clearance.  Like the DOHA hearing, the FORM response is your last chance to refute the allegations or explain why certain mitigating conditions apply to you.  It’s also your last chance to present documents that support your assertions, as well as documents that support a favorable whole-person assessment.

The main difference between having a DOHA hearing and responding to a FORM is that the hearing allows oral testimony from you and your witnesses.  At a hearing the DC and the AJ will question you and your witnesses, and sometimes these questions will surface additional extenuating or mitigating conditions.  Your presence at a hearing also allows the AJ to make a personal assessment of your character and credibility.  It’s possible to convey most of this same information in your written response to a FORM and by attaching written testimonial of others.  The submission of other documents to support your assertions would be the same for either a hearing or a written response to a FORM.

About 30% of cases decided by DOHA AJs are based solely on the written record and only about 12% of those cases are favorably adjudicated.  Of the cases that go to a DOHA hearing about 40% are favorably adjudicated.  With these numbers it’s a wonder that everyone doesn’t request a hearing.  But there’s probably more to it than just the numbers.  It’s possible that applicants with the most serious issues are less motivated to request a hearing.  It’s also possible that applicants, who request a decision without a hearing, are less likely to provide any additional information when given the opportunity.

You can obtain professional assistance to respond to your FORM, and the cost should be the same regardless of where you are located.  Everything can be done via telephone consultations and exchange of emails.  If you want professional representation at a hearing, it will cost more.  At a minimum you will be charged four additional hours for the hearing, and there will be additional costs for non-local travel for you or your attorney/representative.  Sometimes the non-local travel costs can be eliminated by using a video tele-conferencing facility.  The amount of time it takes to prepare your written response to a FORM is pretty much the same as the amount of time it take to prepare your case for a hearing, except that additional time will be needed to prepare your witnesses.

Once you submit your response to the FORM, you should receive the DOHA AJ’s written decision in a month or two.


* This article applies to defense contractor employees whose collateral security clearances are processed by the Industry Division of the DOD Consolidated Adjudications Facility; it does not apply to contractor employees who are being considered for access to Sensitive Compartmented Information (SCI) and other Special Access Programs.

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

Posted in Clearance Procedures | Comments Off on What If I Don’t Want A Hearing?

THE DOHA HEARING

In an article, “DOHA Pre-Hearing Process,” I wrote about what happens after a contractor applicant receives a Statement of Reasons (SOR) explaining why the Government intends to deny or revoke their clearance.  That article covers the process and events up to the Defense Office of Hearings and Appeals (DOHA) hearing.

This article is not intended to provide advice on representing yourself at a hearing, but it does describe what happens, if you choose to represent yourself.  DOHA has an informative, prehearing guidance document on at their website.  The document states that you can generally expect the hearing to be held in a major US metropolitan area within 150 miles of your location and that it can sometime be conducted by video teleconference.

Unless you permit the presence of others, the only people at your hearing will be you, your witnesses, the DOHA Department Counsel (DC), the DC’s witnesses, the DOHA Administrative Judge (AJ), and the court reporter.  Witnesses are normally sequestered outside the hearing room until they provide their testimony.  However, the AJ may allow witnesses to remain in the hearing room, if they’re expert witnesses or if they’re character witnesses, who will not be testifying about the specific issue(s) in the case.  The DC doesn’t always present witnesses and usually relies entirely on documentary evidence.

The process described below is based on two recent DOHA hearings I observed where the applicants represented themselves.  Neither hearing was conducted by video teleconference.  The sequence of events was not exactly the same for both hearings.

Before the hearing begins, the DC sits down with you, briefs you on the procedures and protocol, and helps you organize the exhibits you intend to submit as evidence.  Don’t mark your exhibits in advance.  This will be done at the hearing.  When the hearing begins, the AJ has the DC identify himself/herself for the record.  The AJ asks you a few questions about your age and background to insure that you’re competent to represent yourself, and explains how the hearing is conducted and your right to object to any evidence offered by the DC.   Rather than placing you and any witnesses under oath, the AJ will advise you of the provision of Section 1001 of Title 18 US Code, which makes it a criminal offense to knowingly and willfully make a false statement or misrepresentation at the hearing.

The AJ states the basis for the hearing, the issue(s) in your case, and the AJ’s role in the hearing.  Participants are cautioned not to disclose any classified information.  The DC is then invited to make an opening statement.  An opening statement is an optional summary of the security concern(s) and the evidence the DC intends to present to substantiate the concern(s).  The DC may even concede that your SOR response successfully refuted or mitigated one or more of the specifications in the SOR.  You can choose to make an opening statement then, later, or not at all.  If you make an opening statement, you can briefly talk about yourself, your achievements, work/school history, and other factors indicative of your honesty, reliability, and trustworthiness, as well as how the evidence you present will refute or mitigate the disqualifying conditions listed in the SOR.

The exhibits the DC offered as evidence are reviewed.  You may object to any of the exhibits, but you must explain why.  Absent any objections, the exhibits are entered into evidence.  If the DC has any witnesses, the AJ advises them of 18 USC § 1001.  The witness is then questioned by the DC (direct examination).  When the DC is finished, you may question the witness (cross examination).  The DC may ask the witness additional questions (redirect examination).  The AJ may also question the witness.  This continues until the DC, the AJ, and you have no more questions of the witness.

The exhibits you offered as evidence are reviewed, and the DC may object to any of the exhibits.  You can testify on your own behalf and/or present witnesses.  You choose the order in which you and your witnesses will give testimony.   The process is the same as for the DC’s witnesses, except that you are responsible for the direct and redirect examination and the DC for the cross examination.  It is possible to have witnesses testify by telephone or video conference, but this needs to be coordinated in advance with the DC.

The primary purpose for requesting a hearing is so you can present testimony and evidence in person that refutes or mitigates the Government’s security concerns.  Appearing before an AJ at a hearing and presenting testimony humanizes your case, which would otherwise be a compilation of sterile, dispassionate documents.  It also allows the AJ to observe your demeanor and make a judgment about your credibility and character.  If you choose not to offer any testimony, the DC can call you as a witness and question you.

Although the Prehearing Guidance posted at the DOHA website states, “The hearing is an adversarial proceeding. . . .”; the hearings I observed were neither adversarial nor confrontational.  The applicants presented their cases honestly and candidly without dissembling, obfuscating, or equivocating.  The AJ and DC were accommodating in their efforts to insure that the applicants had ample opportunity to present all the relevant information they possessed.  The questions the AJ and the DC asked the applicants not only resulted in a clearer understanding of the potentially disqualifying conduct and conditions, but also elicited mitigating information that the applicants failed to present on their own.  The DC didn’t attempt to “trip up” the applicants in cross examination, even though some inconsistences in their testimonies were present.  The DC’s questions were phrased in a way that simply drew out the details surrounding the issues.

After all evidence has been presented the case, the DC and you are allowed to make closing arguments.  The DC will go first, then you, and then the DC may rebut your closing argument.  Closing arguments are an optional recap of the evidence and its relevance to the issues in the case.  If you were unable to obtain some documentary evidence in time for the hearing, it is possible to submit it after the hearing for the AJ to consider.  You should ask the AJ to leave the hearing record open for a short period of time, so that you can obtain and submit the document.

You should not expect to receive a decision on your clearance eligibility at the hearing.  A copy of the hearing transcript will be provided to you, the DC, and the AJ in a week or two.  About a month or two after the hearing, the AJ will make a written decision, which will be sent to both parties with a letter explaining how the decision can be appealed by either party.   Once the case is final, DOHA will make the appropriate entry into your security clearance database record.

By William H. Henderson

Copyright © 2015 Federal Clearance Assistance Service.  All rights reserved.

Posted in Clearance Procedures | Comments Off on THE DOHA HEARING

DOHA PRE-HEARING PROCESS

Several years ago I wrote an article about “Rebutting and Appealing Security Clearance Denials.”  Since then things have changed regarding federal contractor clearances, but much of the information in that article remains valid today.  What has changed slightly is the adjudication process.  In late 2012 the positions for staff adjudicators at the Defense Industrial Security Clearance Office (DISCO) and staff adjudicators at the Defense Office of Hearings and Appeals (DOHA) were transferred to the Industry Division of the DOD Consolidated Adjudications Facility (DOD CAF).  The DOHA attorneys and administrative judges remained at DOHA, and the DISCO positions responsible for the front-end processing of clearances were transferred to the Personnel Security Management Office for Industry (PSMO-I) at the Defense Security Service (DSS).

When a staff adjudicator at the Industry Division (Division A) of DOD CAF makes a preliminary decision that a clearance should be denied or revoke, he/she writes a Statement of Reasons (SOR) explaining the basis for this decision.  The SOR is submitted to DOHA for review and approval, before it is sent to the clearance applicant.  If you are issued 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.  If you choose not to respond to the SOR, your clearance will be denied or revoked without further consideration.  If you choose to respond to the SOR, you submit your 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.

As part of your SOR response you have the option of requesting a hearing before a DOHA Administrative Judge (AJ) or a decision by a DOHA AJ 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.

When you request a hearing, the DOHA attorney (Department Counsel—DC) assigned to your case sends you a letter with information about the hearing.  This usually occurs a month or two after DOHA has received your SOR response.  In the letter the DC introduces himself/herself, provides contact information, and informs you of the location and approximate date of the hearing—usually 30 to 45 days from the date of the letter.  You are advised of your right to represent yourself, retain an attorney, or obtain the help of another person, such as a union steward, friend, family advisor, or other personal representative.  The letter identifies the documents and witnesses (if any) the DC intends to offer as evidence at the hearing.   You are informed of your right to object to the proposed evidence and of your responsibility to provide the DC with advance copies of documents you intend to offer as evidence at the hearing.  Typically the DC will identify some or all the following documents that he/she will offer as evidence at the hearing:

  • Electronic Questionnaires for Investigations Processing (e-QIP) version of the Questionnaire for National Security Positions (SF86).
  • Statement of Reasons and Applicant’s answer to the Statement of Reasons with attachments.
  • Written Interrogatory and Interrogatory response with attachments.
  • Report of Personal Subject Interview.
  • Other documents relevant to the issues cited in the SOR (e.g. credit reports, bankruptcy records, psychological reports, criminal records, request for Administrative Notice of facts regarding a foreign country, etc.).

Items offered as evidence by applicants usually include documents that relate directly to the issues alleged in the SOR, such as financial documents, court/legal documents, mental health records, correspondence, and affidavits from people who have direct knowledge of the issue(s).  To support a positive Whole-Person assessment, you can also offer letters/affidavits of recommendation from character references, military service records, documents related work or academic achievement, and documents showing constructive community involvement.  You can also have people present testimony at the hearing regarding their knowledge of the issues and/or their general knowledge of your character and reliability.

Prior to a hearing being scheduled, the DC will contact you to discuss potential dates and locations for the hearing.  Once a date and location has been set by the AJ, a “Notice of Hearing” will arrive from the AJ’s assistant.  You will receive the Notice of Hearing in a sealed envelope from your FSO.  The notice identifies the AJ who will preside over the hearing, as well as the location and date of the hearing.  The hearing date is usually about two to four weeks from the date of the Notice of Hearing.

As stated earlier, a well written SOR response with strong supporting documentation can obviate the need for a hearing.  However, sometimes it’s not possible to gather all the supporting documents in time to include them with your SOR response, and sometime events occur after you submit your SOR response but before the hearing date.  It’s wise to begin preparing for your hearing as soon as you have submitted your SOR response, to continue gathering documents and arranging for witnesses right up to the date of the hearing, and to promptly inform the DC of any changes.

The decision to obtain assistance from an attorney/personal representative or to represent yourself at the hearing will depend on many things.  Your ability to clearly and persuasively articulate factors bearing on your clearance eligibility, the nature of the allegations against you, the strength of the evidence you can present, the cost of professional representation, and the current and future value of a security clearance should all be taken into consideration.  Although, you may appeal an AJ’s decision to deny or revoke your clearance; appeals to the three-member DOHA Appeal Board are very limited in scope and rarely successful.  It’s also possible to reapply for a clearance one year after a denial/revocation, but you have to get clearance sponsorship from an employer, you have to provide justification for your reapplication, and your reapplication must be approved by the DOHA Director before a new clearance investigation will be initiated.  So, as a practical matter the hearing is your last chance to present your case.

The DOHA hearing is designed to facilitate self-representation by an applicant.  If you’re confident you can obtain a favorable decision on your own, you should at least review similar cases at the DOHA website and do as much research as possible before the hearing.  If you have any reservations about doing this, you should seek the assistance of a knowledgeable party who can help you prepare for the hearing and/or represent you at the hearing.  If you’re contemplating representing yourself at the hearing, see my article, “The DOHA Hearing,” for a preview of what to expect.

By William H. Henderson

Copyright © 2015 Federal Clearance Assistance Service.  All rights reserved.

Posted in Clearance Procedures | Comments Off on DOHA PRE-HEARING PROCESS

CLEARANCE PROBLEM? — GET PROFESSIONAL HELP!

Is it worth the expense to pay for professional assistance when facing security clearance denial or revocation?

Probability of Success

I reviewed 500 cases decided by Administrative Judges (AJs) at the Defense Office of Hearings and Appeals (DOHA) between March and October 2012. These cases showed that at the final stage of clearance adjudication, applicants with attorneys or personal representatives were granted clearances 60% more often than those who represented themselves (pro se). Yet only 20% of applicants chose to be represented by an attorney. Of the 400 pro se applicants only 32% were granted security clearances. Of the 98 applicants who were represented by attorneys 51% received security clearances. There were 2 applicants who were assisted by “personal representatives,” and both were granted security clearances.

Other Factors

It’s possible that applicants who seek the assistance of an attorney are predominately those with the poorest likelihood of success. Many applicants who pay an attorney to write a response to a “Letter of Intent” (LOI) to deny clearance are granted a clearance based solely on the written answer to the “Statement of Reasons” (SOR) contained in the LOI. This eliminates the need for a hearing and reduces the processing time by a month or two. Because of these and many other factors, using the services of a qualified attorney may improve your probability of success by much more than 60%. To understand this better, you need to be familiar with the rebuttal and appeal process.

If you’ve already received a “Written Interrogatory” or an SOR, it means that your case is among the most problematic 5% of all cases and you definitely need to give serious consideration to hiring an attorney. If you know before you apply for a clearance that you have moderate to major security or suitability issues to overcome, you may want to seek professional security clearance help at the application stage of the clearance process. It could shave weeks or months off your processing time, as well as improve your chance of receiving an interim and final clearance.

Cost Versus Consequences

The cost of an attorney who prepares your SOR response and who represents you at a hearing should range from about $7,000 to $15,000 (plus expenses), depending on the complexity of your case. Considering the possible long-term negative effects of a clearance denial on your future career, increasing your probability of success by at least 60% makes the cost of professional help worth the money.

If you chose to answer the SOR by yourself, always request a hearing. If your written SOR response is unsuccessful, you’ll then have chance to present your case in person before an AJ. Statistically, applicants who request a hearing are 3 times more successful than those who request a decision based only on the written record. Don’t expect to save money by answering the SOR yourself and then getting an attorney to represent you at the hearing. Often much of the work an attorney does to prepare your case for a hearing is the same work he or she would have done to answer the SOR for you. Plus the attorney will have to spend additional time trying to fix mistakes you made in your SOR response—mistakes that can be used against you at the hearing.

You may think that if you represent yourself at a DOHA hearing and lose, you can then get an attorney to appeal the clearance denial for you and possibly get the decision reversed. Don’t count on it. Very few appeals are successful. Out of 26 appeals to the DOHA Personnel Security Appeal Board (PSAB) handled by attorneys from March to October 2012, only 2 appeals were successful. During the same period, 40 applicants appealed their own cases, and none were successful. This is because you are not allowed to present any new evidence in your appeal to the DOHA PSAB. Your appeal of the AJ’s decision must be based on procedural or factual errors.

You may also think that if you are denied a clearance, you can reapply for a clearance a year after the denial. This is partially true. One year after being denied a clearance you can reapply, but you have to get the approval of the Director of DOHA before your clearance application will be processed. To get this approval you’ll have to submit persuasive evidence that your situation has improved substantially since your clearance was denied. More importantly, you will have to find an employer willing to sponsor you for the clearance. Most prospective employers will be very reluctant to sponsor someone who previously had a clearance denied or revoked.

Adversarial Process

For defense contractor personnel the clearance hearing is an adversarial process. Your adversary will be a DOHA “Department Counsel” (DC), an experienced attorney who specializes in representing the Government at clearance hearings. The standard of evidence required to deny a clearance is much lower than the standard of evidence in a criminal prosecution and slightly lower than the standard in a civil lawsuit. The DC only needs to present “substantial evidence” to support the allegations in the SOR. Once substantial evidence is presented, the burden falls to the applicant to present evidence that refutes or mitigates the evidence presented by the DC. Although the Federal Rules of Evidence are only supposed to be used as a guide and AJs have broad discretion to rule on the admissibility of evidence; AJs tend to adhere to the rules in most situations. Knowledge of the rules and procedures could be critical to your success at the hearing, as well as any subsequent appeal.

Before Selecting an Attorney

If you expect it will take more than a few days to select an attorney, submit a Privacy Act request for a copy of your security clearance investigation and any other Government documents you may need.

Get organized quickly. Review the Adjudicative Guidelines that pertain to the issues listed in your SOR and determine which mitigating conditions apply to you and how they apply. Don’t forget the 9 “General Criteria” listed at paragraph 2 of the Adjudicative Guidelines. Prepare a draft response to the SOR. Gather documents that support your SOR response. Identify people who can corroborate your statements or provide meaningful testimony regarding positive Whole-Person factors on your behalf.

Selecting an Attorney

There are very few attorneys experienced in security clearance cases, but you don’t have to find an attorney who has an office near you. Your communication with an attorney can be handled largely by telephone and email. There are experienced attorneys located in other areas, but most are in Virginia, Maryland, and the District of Columbia, because that’s where many of the hearings are held. Hearings can be held at other locations and can also be conducted by video tele-conference.

Create a short list of attorneys and check out their websites. Do they show national security clearance as an area of practice? Have they been involved with the American Bar Association’s Standing Committee on Law and National Security? Have they taught classes on security clearance law to other attorneys? Have they published articles on security clearance issues? These aren’t necessary qualifications, but they’re definitely pluses. You wouldn’t hire a tax attorney to defend you in a serious criminal matter; why would you hire someone without any security clearance experience to represent you at a DOHA hearing. During your initial consultation, you should ask:

  • What are my chances of being granted a security clearance?
  • How many security clearance cases involving an SOR have you had in the last 12 months?
  • How many cases resulted in the successful rebuttal of an SOR without going to a hearing?
  • How many cases resulted in the granting of a clearance after a hearing?
  • Which federal agencies have you dealt with on security clearance cases?
  • Who in your office will prepare my case (attorney or paralegal)?
  • About how much will your services cost?
  • How are your cost and fees calculated?
  • How and when will I be required to pay?
  • What do you need from me to get started?
  • What can I do to help keep the costs and fees down?

by William H. Henderson

Copyright © 2012 Last Post Publishing. All rights reserved.

Posted in Improving Your Chance of Success | Comments Off on CLEARANCE PROBLEM? — GET PROFESSIONAL HELP!

Changes to Interim Secret Clearance

July 28, 2014

For close to two years the Defense Security Service (DSS) has been advising stakeholders about an upcoming change to how interim Secret clearance decisions will be made.  It seems that they are now only a few months away from implementation.

An interim Secret clearance is “based on the completion of minimum investigative requirements.”  It is granted on a “temporary basis, pending the completion of the full investigative requirements” for a Secret clearance and the adjudication of that investigation.  The minimum requirements for interim Secret clearance for defense contractor personnel are the submission of a request for a National Agency Check with Law and Credit (NACLC) and the favorable review of the applicant’s Questionnaire for National Security Positions (Standard Form 86—SF86) and applicable security databases.

Among other functions, the DSS Personnel Security Management Office for Industry (PSMO-I) handles the Government’s front-end security clearance processing for defense contractor personnel covered under National Industrial Security Program (NISP).  This function was previously handled by the Defense Industrial Security Clearance Office (DISCO) before DISCO was disestablished and reconstituted as part of the Industry Division of the DOD Consolidated Adjudications Facility (DOD CAF).  PSMO-I grants interim clearances, but does not actually deny them.  They simply do not grant an interim clearance when a potentially disqualifying condition exists.  In the past the term “declined” was used in the Joint Personnel Adjudication System (JPAS) to indicate that an interim clearance was not granted; this has been replaced by the term, “Eligibility Pending.”  This may seem like a meaningless distinction, but it matters when filling out an SF86.  Section 25 of the SF86 asks if you have ever had a security clearance denied, suspended or revoked.  Failure to receive an interim clearance or having an interim clearance withdrawn is not a denial, suspension, or revocation.

Generally PSMO-I has been able to make an interim Secret clearance determination and post that decision to the applicant’s Joint Personnel Adjudication System (JPAS) record in about two working days after they receive an applicant’s SF86.  There was a period between fall 2013 and spring 2014 when PSMO-I was terribly backlogged due to the Government shutdown and the lifting of the temporary moratorium on Period Reinvestigations.

Although there haven’t been any recent statistics published on the rate of interim Secret clearance approval; anecdotal information suggests about 70% to 80% of industrial applicants for initial clearances are granted interim Secret clearances.

In the past there was no time limit for interim clearances.  A person could access classified information for years with only an interim clearance while waiting for a final clearance.  According to a June 2013 DSS Webinar there will be a 12-month time limit for interim clearances, with the possibility of an additional six months based on a compelling need request.

The Under Secretary of Defense for Intelligence (USD-I) issued a memorandum, dated 27 January 2014, regarding new minimum requirements for interim secret clearances.  These requirements went into effect on February 1, 2014 and will remain in effect until the issuance of DOD 5200.02-M, Volume 2, “DOD Personnel Security Program.”

The draft version of DOD 5200.02-M Volume II proposes the following standards for interim Secret clearance:

  • Investigation is opened by the Investigations Service Provider
  • Favorable review of completed SF86 by appropriate adjudicating authority
  • Receipt of favorable FBI criminal history report (Advance fingerprint results)
  • Review of applicable security databases and available records.

According to a June 2014 PSMO-I presentation at the National Classification Management Society conference, the new interim Secret clearance standards for industrial applicants will be almost identical to the standards for interim Top Secret clearances:

  • Review SF86
  • Investigation Scheduled
  • Review National Databases
  • Review Fingerprint results

Some of this process will be accomplished at OPM and the results will be electronically delivered to PSMO-I, where the other parts of the process will be completed, including the electronic adjudication of the case file.  The requirement for OPM to deliver Advance fingerprint results to PSMO-I will probably add about a week to the process, so once the new process is implemented, it will take about seven business days before interim Secret eligibility or “eligibility pending” is posted to the applicant’s JPAS record.

What neither PSMO-I, nor USD-I mention is credit reports.  The draft version of DOD 5200.02-M covers this with the words “available records.”  Both Advance Fingerprint results and credit reports can be obtained by OPM within a day or two of opening an investigation.  Consequently, the credit report can be available for electronically deliver to PSMO-I at the same time as the Advance Fingerprint results.  Since more than 50% of all cases with potentially disqualifying information involve “Financial Considerations,” it makes no sense that PSMO-I would adjudicate for interim Secret clearance eligibility without considering the contents of a credit report.

Credit reports will probably be included in the adjudication of interim Secret clearances, and if they are, the approval rate will decline, possible as much as 10%.  The Advance Fingerprint results could also cause the interim clearance approval rate to decline an additional 5%.  But this will also result in fewer interim clearances being withdrawn after they’re granted.

Slightly longer processing times and a decline in the interim clearance approval rate coupled with the current effort to reduce the number of security clearances may have a significant impact on both large and small defense contractors.   Many defense contractors rely heavily on interim clearances to quickly fill positions on new classified contracts.  Some contractors have significant numbers of cleared personnel who are not currently assigned to work on classified contracts.  In the coming months there will be audits of cleared personnel.  People who have clearances, but don’t currently require access to classified information, may have their clearances terminated, thus reducing a ready pool of cleared personnel who can be assigned to new contracts.   A recent report from the Office of the Director of National Intelligence (ODNI) contained information that was particularly revealing.  There are a little more than one million cleared contractors, but only about 87% of that number require access to classified information.

Defense contractors that rely heavily on interim clearances to hire new employees will need to provide their clearance applicants extra help in completing their SF86s.  It is possible obtain an interim clearance even when potentially disqualifying issues exist.  Mitigating these issues is more difficult for an interim clearance than it is for a final clearance, but it can be done for many issues.

By William H. Henderson

All Original Material Copyright © 2014 Federal Clearance Assistance Service. All rights reserved.

Posted in Policy & Standards | Comments Off on Changes to Interim Secret Clearance