Personal Conduct and Security Clearances

When an applicant has been involved in multiple incidents of conduct that individually fall below the threshold for denying a clearance, the conduct can be evaluated in its totality to determine the applicant’s eligibility for a clearance.

Whenever a person attempts to conceal conduct that could cause serious embarrassment or problems with a spouse, family member, employer, or law enforcement/security agency, the potential for vulnerability to coercion exists…

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The “Personal Conduct” criterion (Guideline E) of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information encompasses a wide variety of dishonest or unreliable behavior not specifically covered under other adjudicative criteria. It also addresses multiple instances of minor misconduct covered under other criteria where the misconduct fails to reach the threshold of being considered a potentially disqualifying condition. In 2009 about 31% of the 1278 cases reviewed by Administrative Judges at the Defense Office of Hearings and Appeals cited “Personal Conduct” issues. Most cases of personal conduct and security clearance applicants involved intentional falsification of relevant information on the Standard Form 86 – SF86 (Questionnaire for National Security Positions). Other “Personal Conduct” issues are:

  • Failure to cooperate with investigation
  • Pattern of dishonest, unreliable, or rule-breaking behavior
  • Vulnerability to coercion
  • Association with persons involved in criminal activity
  • Violation of a written commitment made as a condition of clearance or employment

This article addresses issues covered by Guideline E that are not related to intentional falsification. The issue of falsification is discussed in the article, “Falsification of Security Clearance Applications.”

SECURITY CONCERNS

Failure to cooperate with investigation

A security clearance is a privilege, not a right. Applicants can not be compelled to provide information or submit to other examinations, but refusal to fully cooperate in the security clearance process usually results in a clearance denial, because it creates the presumption that the applicant is hiding relevant information. Asserting the Fifth Amendment right against self-incrimination will not mitigate a refusal to cooperate or provide information. The SF86 provides some protection against criminal prosecution. Question #23 (Illegal Use of Drugs or Drug Activity) and question #27 (Use of Information Technology Systems) both included the caveat, “Neither your truthful responses nor information derived from your responses will be used as evidence against you in any subsequent criminal proceeding.”

Pattern of dishonest, unreliable, or rule-breaking behavior

When an applicant has been involved in multiple incidents of conduct that individually fall below the threshold for denying a clearance, the conduct can be evaluated in its totality to determine the applicant’s eligibility for a clearance. When reviewed separately, traffic infractions, a single misdemeanor arrest for shoplifting, issuing bad checks and minimal participation in copyrighted file sharing on a peer-to-peer network usually would not result in a clearance denial. But when reviewed under Guideline E, the sum of the conduct can become a potentially disqualifying condition.

Misconduct not specifically addressed under other adjudicative criteria can also evaluated under Guideline E. This includes such things as work- or school-related misconduct, rule violations, and dishonesty. It can also include failure to act in a responsible manner in one’s relationship to family, friends, neighbors and associates. As with conduct that falls below the threshold for clearance denial under a specific adjudicative criterion, this type of conduct is evaluated in its totality. Specifically addressed in Guideline E are:

  • Misuse of employer’s time and resources
  • Disruptive, violent, or other inappropriate behavior in the workplace
  • Untrustworthy or unreliable behavior
  • Pattern of dishonesty or rule violation

 

Vulnerability to coercion

Whenever a person attempts to conceal conduct that could cause serious embarrassment or problems with a spouse, family member, employer, or law enforcement/security agency, the potential for vulnerability to coercion exists. Examples include:

  • Misrepresentation of professional or educational qualifications
  • Concealment of potentially disqualifying conditions on any employment or security form
  • Concealment of business or financial problems from family members
  • Involvement in undetected criminal activity

 

When a person engages in seriously embarrassing or prohibited conduct in a foreign country or such conduct becomes know to foreign nationals, it significantly increases the possibility of exploitation by a foreign intelligence or security service and creates heightened security risk.

Association with persons involved in criminal activity

Close and continuing contact with anyone involved in criminal activity is a potentially disqualifying condition. Contact or communication with a person in prison or any other person who is no long involved in criminal conduct is not a disqualifying condition. Association with an immediate family member involved in criminal activity is evaluated based on the nature of the association, the nature of the criminal activity, and the potential for undesirable influence.

Violation of a written commitment made as a condition of clearance or employment

Occasionally security clearances are granted with conditions. Such conditions can include a promise to sever a relationship with a foreign business or organization, pay off delinquent debts by a certain date, or abstain from illegal use of drugs. A violation of a written condition for a clearance can be the basis for clearance revocation. Violations of written commitments made by individuals to employers as a condition of employment can also be a potentially disqualifying condition.

MITIGATING CONDITIONS

Extracted from the Adjudicative Guidelines

    • The refusal or failure to cooperate . . . was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

 

    • The offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment;

 

    • The individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

 

    • The individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress;

 

  • Association with persons involved in criminal activities has ceased or occurs under circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

 

Adjudicators are admonished to consider “available, reliable information about the person, past and present, favorable and unfavorable” in reaching a clearance determination. Like other adjudicative criteria, some “Personal Conduct” issues can be mitigated by positive attributes considered under the “whole person concept.” When mitigating security issues under Guideline E (as well as other guidelines), an applicant should submit information that specifically addresses the applicable mitigating conditions. They should also submit information regarding other positive aspects of their life, such as major lifestyle changes, recognition for professional and academic achievement; participation in charitable, civic, and service organizations; and other constructive community and professional involvement.

William H. Henderson is a retired security investigator, author of Security Clearance Manual, and regular contributor to ClearanceJobsBlog.com and ClearanceJobs.com.

 

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