RELEVANCE OF CRIMINAL CONDUCT TO SECURITY CLEARANCES

Affected Persons

The “Criminal Conduct” criterion in the National Security Adjudicative Guidelines (NSAG) affects security clearance applicants who have been arrested, charged or convicted of a single serious crime or multiple lesser offenses. Others who have intentionally provided false information on their clearance application forms, who have had illegal drug involvement, or who have been involved in previously unreported crime can also be affected. Over the years Criminal Conduct has consistently been among the 5 most common reasons for security clearance denial.

Security Concern

The NSAG states that “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.” Because of the high rate of adult recidivism, this issue is perhaps one of the best predictors of future compliance with rules for handling classified information.

Criminal Offenses

Criminal offenses are divided into three categories—infractions, misdemeanors, and felonies. For security clearance purposes, an infraction is a crime for which the maximum possible penalty is a fine; a misdemeanor is a crime for which the maximum possible penalty is incarceration for up to 1 year; and a felony is a crime for which the maximum possible penalty is incarceration for more than 1 year.

The “Questionnaire for National Security Positions” (Standard Form 86—SF86) asks if an applicant has ever been charged with a felony offense or any offense involving alcohol, drugs, firearms or explosives. It also asks if an applicant: 1) has been arrested, charged, cited, or convicted of any offense within the past 7 years; 2) has been subject to court martial or other military disciplinary proceedings within the past 7 years, 3) has ever been convicted of an offense involving domestic violence, 4) is currently pending some court action for a criminal charge or offense, or 5) is currently on parole or probation.

The distinction between “arrested” and “charged” can be important for anyone arrested more than 7 years ago for a felony or any offense involving alcohol, drugs, firearms or explosives, but not formally charged with one of these offenses. Applicants often mistake the charge or offense listed on the police report as a charge that must be listed on the SF86. Since a charge can be changed or dropped between the time of an arrest and the defendant’s initial court appearance, the best definition of a “charge” for SF86 purposes is any accusation of criminal conduct as it is initially presented at court.

For SF86 purposes an arrest is any situation in which a law enforcement officer restricts a person’s freedom, then either takes them into custody or releases them on their promise to appear in court (i.e. issues a citation). Under this definition a traffic offense resulting in a citation is technically an arrest; however, minor traffic citations resulting in a fine of $300 or less can be omitted from the SF86, unless they involved drugs or alcohol.

There are certain circumstances where a person can be taken into custody, but not technically arrested. This typically occurs when a person is initially arrested for being drunk in public, placed in a jail cell until sober, then released without any conditions or further action. In their report police record this as a detention not amounting to an arrest (or some similar wording). It is strongly recommended that such incidents be disclosed in the appropriate comment section of the SF86.

In the SF86 there is an exception that permits withholding information about certain expunged drug convictions. This exception only applies to drug convictions and expungement orders in a federal court. Consequently, clearance applicants must list all applicable dismissed charges and convictions even if the record was sealed, expunged, or otherwise stricken from a state or local court record.

Compliance with Bond Amendment

The Bond Amendment (50 U.S.C. 435b, Section 3002), which became law in January 2008, prohibits all federal agencies from granting or renewing eligibility for access to Sensitive Compartmented Information, Special Access Programs, and Restricted Data for anyone who has been: 1) convicted, sentenced, and incarcerated for a term exceeding 1 year for any crime or 2) discharged/dismissed from the Armed Forces under dishonorable conditions. As a practical matter, due to the inability to always predict future access to Restricted Data, these Bond Amendment restrictions may be applied to the adjudication of all levels of security clearances. In many agencies senior adjudicators have the authority to waive these Bond Amendment restrictions. When an adjudicator would have arrived at a favorable decision but for a Bond Amendment disqualification, the adjudicator may grant a meritorious waiver if deemed appropriate.

Criminal Aspects of Other Adjudicative Criteria

A knowing and willful false statement made in connection with a security clearance application is a felony. Normally this offense is considered under the NSAG “Personal Conduct” criterion, which specifically addresses this issue. However adjudicators can cite both Personal Conduct and Criminal Conduct for this single criminal act. Likewise, an adjudicator may cite Criminal Conduct in addition to Alcohol Consumption, Drug Involvement, or Sexual Behavior when there has been a single felony or multiple misdemeanor offenses at least one of which involved alcohol, drugs, or sexual conduct.

EFFECT OF CRIMINAL CONDUCT ON SECURITY CLEARANCES

Evaluating Criminal Conduct

Although, Criminal Conduct is always a security/suitability concern; it becomes a potentially disqualifying condition under the NSAG when it involves:

(a)  a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness;

(b)  evidence (including, but not limited to a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted;

(c)  individual is currently on parole or probation;

(d)  violation or revocation of parole or probation or failure to complete a court-mandated rehabilitation program; and

(e)  discharge or dismissal from the Armed Forces for reasons less than Honorable Violation of parole or probation, or failure to complete a court-mandated rehabilitation program.

Mitigating Security Concerns

The following conditions may mitigate Criminal Conduct concerns:

Multiple Lesser Offenses Not Serious

Multiple minor traffic infractions without allegations of other criminal conduct would not be an issue under the Criminal Conduct criterion. However, they can be considered under the Personal Conduct criterion along with any other dishonest, unreliable, or rule-breaking behavior.

Alleged Crime Not Committed

Security clearance adjudications do not use the same standard of evidence used in criminal proceedings. Once the government has substantial evidence that the applicant committed a crime, the burden of proof shifts to the applicant to present evidence to refute the allegation. To propound this mitigating condition there must be proof that the applicant did not commit the alleged offense. Being accused but not arrest, arrested but not prosecuted, or prosecuted but found not guilty, many not be sufficient proof of innocence, if there was insufficient evidence to meet the criminal standard to prove guilt or a technical/procedural error was made that prevented a successful criminal prosecution.

Successful Rehabilitation

Evidence of rehabilitation can simply be “passage of time” without recurrence of criminal activity or any other indicators of continued antisocial, irresponsible or violent behavior. There is no general rule for how much time must elapse since the last criminal offense for full mitigation solely through “passage of time.” The amount of time depends on age when the crime occurred, how long criminal activity continued, the number and seriousness of the crimes, and the circumstances surrounding the crimes. Positive evidence of rehabilitation can significantly reduce the amount of time necessary to fully mitigate criminal conduct. Such evidence includes, “remorse or restitution, job training or higher education, good employment record, or constructive community involvement.” Also taken into consideration are other positive changes in lifestyle, associates, and social responsibility. These factors can positively influence an adjudicator’s determination that an applicant’s past conduct is not likely to recur or no longer cast any doubt on the applicant’s judgment, reliability or trustworthiness. Knowingly and willfully providing false information for a security clearance investigation and “currently being on parole or probation” are very difficult to mitigated, because there as been too little time to show rehabilitation.

Isolated Incident or Unique Circumstance

Many people commit a single non-violent criminal act due to an impulsive decision or an uncharacteristic lapse of judgment. Such crimes are sometimes prompted by a transitory situation. The presence of extenuating circumstances and/or a record of otherwise consistent reliability, trustworthiness, and good judgment over an significant period of time can mitigate suitability/security concerns by showing criminal conduct is not likely to recur, even though the crime may have occurred recently.

Pressured or Coerced

A single serious crime can be fully mitigated, if an applicant committed the crime due to threat of harm to himself or his family or other similar forms of duress. It is unlikely that this mitigating condition would be applicable to multiple criminal acts over a period of time, such as during a period of gang membership, unless it is propounded in combination with “successful rehabilitation.” It would also not be applicable when the threat of harm or duress occurred as reprisal for some breech of promise or misconduct by the applicant.

Interim Clearances

Interim clearances can be withheld when any potentially disqualifying issue exists. Significant criminal conduct on the SF86 can often be mitigated by information collected during a security clearance investigation. But interim clearances require issue mitigation before the investigation is completed. The SF86 asks about criminal conduct, but it does not ask for information that might mitigate the related security or suitability concerns. Applicants may include mitigating information in their SF86 (or its electronic equivalent known as eQIP) by using the “Continuation Space” at the end of the paper version or by using the “Add Optional Comment” text field following each question on the eQIP version. Including any applicable mitigating information in this manner can only help an applicant’s chances of being granted an interim clearance.

by William Henderson
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