OBTAINING OR SAVING YOUR SECURITY CLEARANCE

In Cannon Law General Blog Topicsby johncannon

Losing your Security Clearance will cost you your job, income, and your reputation.

When you need a security clearance to work, you can expect thorough background checks into almost every aspect of your life: any investigations you have been subject to or apart of, your financial habits, any history of drug use or convictions, drugs, and more. The reason for this is to determine whether the government wants to trust you to keep potentially harmful secrets about national security and/or whether or not you should be allowed permission to enter a military base or instillation, such as Tinker Air Force Base, Fort Sill, Vance Air Force Base, or other secure locations in Oklahoma, such as National Guard Armories.

Security clearance is easy to lose, but hard to obtain. Your security clearance is your ticket to ride in the military or military access for contractors. Federal Security Clearance denials and revocations are based on the perception or perceived risk a party presents to national security interests and classified information. Most federal jobs, the military, and civilian contractors are required to obtain and maintain security clearance in order to perform their jobs. Many reasons exist to revoke security clearance, including “bad behavior” or observed risks to security.

Losing your security clearance will likely result in losing your job and will prohibit you from advancing in your career. If you are facing a disciplinary action or investigation your security clearance will likely be revoked and you must act quickly to appeal and try and save your security clearance.

13 Causes of Security Clearance Revocation

Adjudication guidelines exist for security clearance revocations, which establish the following 13 justifications for denying or revoking security clearance. The commander or party controlling security clearance or access can base a revocation on one or more of the following security clearance revocation grounds:

  1. Personal Conduct: This is unfortunately, a common basis for security clearance revocations, as it is the catch all provision for security clearance revocation, such as providing false information, negative background information, or any type of perceived inappropriate personal conduct.
  2. Security Violation: breach of security protocols or disclosure of classified of secret information, whether intentional or reckless.
  3. Criminal Activity: the mere allegation of a criminal act can result in your security clearance being revoked; however, any criminal conviction or criminal charges in court will cause a serious threat to your security clearance.
  4. Sexual Behavior: inappropriate sexual conduct, sexual harassment, sexual assault, or sexual activity that causes a threat to security.
  5. Alcohol Consumption: Alcohol abuse or inappropriate conduct related to alcohol consumption.
  6. Drug Activity: use of illegal or illicit drugs, such as a failed UA.
  7. Psychological Concerns: failure to properly treat and medicate emotional, mental, other disorders, or a pattern of risky/unstable behavior.
  8. Misuse of Information Technology: this can range from irresponsible conduct on a computer system or network all the way to computer hacking or malicious coding.
  9. Outside Activities: involvement with organizations that distribute information related to foreign affairs, intelligence information, or National Security, can result in security clearance revocation.
  10. Financial Concerns: unexplained wealth, excessive debt, gambling, excessive financial obligations, and/or patterns of misuse of money.
  11. Lack of Allegiance to the United States: any known association or identifying with anti-government groups or terrorists will result in your security clearance being revoked.
  12. Foreign Influence: associations with foreigners that gives rise to concerns of coercion by that party.
  13. Foreign Preference: perceived threats to national security or the appropriateness of your security clearance can come from perceived foreign preference, such as foreign military service or benefits received from foreign counties or foreign parties.

What are the Levels of Security?

Security level clearance is decided by the Department of State’s Bureau of Human Resources. They determine the level of clearance awarded to a person, which consist of three different levels: 1) Confidential, 2) Secret, and 3) Top Secret. Other levels of clearance exist, such as Public Trust; however, Confidential, Secret, and Top-Secret security clearance are the most widely used.

A Confidential Security Clearance is the lowest clearance a person can obtain. Receiving this clearance allows the person to access classified information that could cause damage to nation security. A Secret Security Clearance is the next level and applies where there is potential for serious damage to national security. The most difficult clearance to obtain is Top Secret clearance, because it applies where there is potential for grave damage to national security.

How do I Upgrade my Security Clearance?

To upgrade from a Secret Clearance to a Top Secret Clearance, you must have one of the following:

  1. PCS or TCS orders stating that you require Top Secret clearance
  2. A Memorandum signed by an O-5 or higher officer stating that you require Top Secret clearance due to a job requirement
  3. You have changed your MOS which requires a Top Secret clearance.

When does my Security Clearance Expire?

Security Clearances must be renewed every five years for Top Secret clearances, every ten years for Secret clearances, and every 15 years for Confidential clearances.

How do I Renew my Security Clearance? In order to renew your clearance, you must do so within 30 days of expiration. To do so, the person must complete the Electronics Questionnaires for Investigation Processing (eQip) application online.

Within the 30 days until expiration, download and complete the ATC Request for PSIP Investigation worksheet and send it in with your birth certificate or passport to prove your identity. You do not have to get your fingerprints re-done in order to renew your security clearance. Once it is received, it will be processed, and you will receive an e-mail to complete the eQip application. You have 5 days to do so, and if you miss that deadline the application will be terminated.

Who is subject to a Security Check?

In addition to the applicant, sometimes security checks may be required for husband or wife of the person. The background check only occurs with the family member’s permission, but especially for Top Secret clearance, they will have to do it or the application may be denied. This is to make sure there are no conflicts of interest or issues applicant’s family that could affect the work the applicant is looking to participate in. A history of alcohol abuse or a long criminal record could be cause for denial of the application.

Facility Security Clearances (FCL)

Certain companies that are selected on a federal contract may also apply for security clearance if they need to access sensitive information. This is called a Facility Security Clearance.

What is a Facility Security Clearance and how do I Qualify? A Facility Security Clearance is a determination made by the government that a contractor is eligible for access to classified information—this means companies, academic institutions, and other entities who are engaged in providing goods or services to the U.S. government involving any kind of classified information. These security clearances are granted at three levels: Confidential, Secret, or Top Secret, and they are granted to contractors when it is necessary for them to access classified information in order to perform on their contract.

What do I need to do to get Facility Security Clearance?

The Defense Counterintelligence and Security Agency (“DCSA”) is the security agency in the federal government which conducts background checks and provides facility security clearances. Four essential steps exist to obtaining an FCL: 1) Sponsorship, 2) CAGE codes, 3) telephone survey, and 4) DCSA forms. For all information, refer to the National Industrial Security Program Operating Manual.

Do I need a Security Clearance Sponsor? Contractors need to be sponsored by a government contracting activity or another cleared company in order to apply for security clearance. A contractor cannot sponsor itself. This process starts in NISS through an FCL sponsorship request form.

What is a CAGE Code? DCSA uses CAGE codes to track basic facility information. CAGE stands for the Commercial and Governmental Entity code that is assigned to the contractor. If your company does not have a CAGE code, contractors can register for one with the System for Award Management database. It is important to get this code before beginning the FCL process, because without it a contractor may experience delays or even discontinuation of their application.

What is the Telephone Survey? You will be contacted to schedule a telephone survey, and contractors can prepare themselves for it by reading the FCL Orientation Handbook, which will be provided in a Welcome E-mail. Contractors should review their legal documentation and have someone familiar with the legal structure of the company available on the call. The main point of this survey is to identify the contractor’s key management personnel.

Personnel Security Clearances (PCL)

What is a Personnel Security Clearance? A Personnel Security clearance is an administrative determination by a certified adjudicator that a person needs access to classified information that could be damaging to national security in order to perform their duties in the course of their employment.

Who issues a PCL? An applicant cannot apply for security clearance on their own. Instead, an employee or candidate for employment who needs access to the classified information will get it through their employer, who begins the process. The employer will have the employee fill out an Electronic Questionnaire for Investigations Processing (eQip), fill out signature pages and submit their fingerprints for the initial application.

How Do I Apply for a Security Clearance?

Who can Apply for Security Clearance? First and foremost, an applicant cannot initiate a security clearance on their own. Typically, it is done through the federal agency employer who applies for the employee. The federal agency determines if a person is in some position requires a security clearance, and if so, they conduct a background check.

Common types of agencies that require a security clearance include:

 Intelligence Community  Federal Law Enforcement Agencies  Diplomatic Agencies  Civilian Military Agencies

Should I Lie in my Security Clearance Application? No. Even if something is embarrassing or potentially damaging, do not lie on your application when asked a question. Honesty, candor, and thoroughness are very important factors, and lying about something can lead to your application being denied. If you are honest, then even that embarrassing or damaging piece of information might not affect your application—but lying about it almost certainly will.

How Long does the Process Take? It depends on the circumstances of the applicant and the subject and level of security clearance that they are requesting.

What Happens if my Application is Denied? If an application is denied, there is an opportunity to appeal that denial. In addition to the notification of denial, you will be notified of the reasons that your application was denied, and you will have the chance to address those reasons in your appeal.

What is the Security Clearance Appeals Process? First, when an application is denied, the applicant is given a Statement of Reasons or “letter of denial.” This tells the applicant the government’s exact concerns and allows the applicant the opportunity to respond to those concerns in writing and potentially overturn the denial.

If the applicant is quick to respond and responds effectively, they could still be granted a security clearance without needing a formal hearing, which saves a lot of time and money. On the other hand, the applicant can lock them self into a story and a defense with their response. This means that if they make a mistake, it is more difficult for an attorney to come in later and fix the mistakes on the denial. Errors in this stage can be very costly.

After the response to the Statement of Reasons, there will be an administrative hearing. The applicant can indicate whether he or she would like an in-person hearing before an administrative law judge, or have a judge decide solely upon the applicant’s file and written response. If the applicant chooses to go in person, the hearing is usually set out 4-8 weeks out in Washington D.C. or at a federal building closer to the applicant. This hearing is very formal, and applicants will usually choose to hire a lawyer to help prepare and defend their appeal to the judge, and poke holes in the government’s case.

If the judge denies the applicant at the hearing, the applicant can still appeal. An appeal is limited to challenging the judge's decision in a very narrow scope: usually technicalities, such as whether the judge was biased or mistaken in a point of law. Questions of fact are generally not heard on appeal.

Clearance Transferability

Is my Clearance Transferrable from one Federal Agency to Another? Sometimes. Reciprocity between federal agencies allows a person to transfer their security clearance from work with one federal agency to another. This means that the background investigation that was done from the first agency is recognized and accepted in the second, and the second agency will then award a security clearance to that person.

This reciprocity is limited: the person transferring from one agency to another must have had their last agency investigation completed within the past five years for a Top Secret clearance and ten years for a Secret clearance, and in that time there must not be a gap in service for more than two years. Additionally, if the employee has been through any significant changes, an agency might not accept the previous investigation.

Is my Clearance Transferrable from a Federal Agency to the Private Sector? No. The Security Clearance only applies to people employed by, detailed or assigned to, or working on behalf of the federal government.

Security Clearance Validity

Will my Security Clearance be Valid if I Stop Working for the Federal Government? Usually no, a security clearance will be administratively removed when access to any confidential information is unnecessary, such as when a person stops working in their position for the federal government.

If I had a Security Clearance in Past Work, Can I Get it Back? Yes, but only in certain circumstances. The DSS will usually revalidate a security clearance so long as (1) the applicant has not been out of federal service for more than two years and (2) the applicant’s clearance is based on an appropriate and current background investigation.

Contact – Cannon & Associates: Oklahoma Military Law Attorneys Experience matters when your application for security clearance is denied or revoked. It could mean losing your job or damaging your reputation. It is important to know the Oklahoma military lawyer you hire is dedicated to your cause and versed in all aspects of Security Clearance law in Oklahoma. Cannon & Associates is dedicated to FIERCE ADVOCACY for military members and will fight for you. Founder John Cannon has been recognized as a Super Lawyer and is a serving Judge Advocate in the Oklahoma National Guard. Attorney S. Douglas Elliott is a retired BG and former Judge Advocate for the Oklahoma National Guard.

Contact Cannon & Associates to protect your rights and fight for your security clearance in Oklahoma. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.