One of the hallmarks of a great attorney is the ability to anticipate unforeseen problems. Call it paranoia, cynicism or “spidey sense,” that sixth sense is crucial to effectively keeping clients out of trouble.
With that in mind, nothing makes an attorney cringe like the SF-86 security clearance application. In what other context do you have to literally spill your life story – including every mistake you’ve made for the last decade – and then sign it under penalty of perjury?
I’ve written previously in this forum about how reporting undiscovered criminal activities on the SF-86 can waive your Fifth Amendment right against self-incrimination and result in prosecution. But there are also plenty of other ways in which what you self-report can create serious legal blowback. Unfortunately, by the time an Applicant realizes this it is often too late.
Divorce and Child Custody Proceedings
A common issue I see with clients is extra-marital affairs. Although there is not explicitly a place to list them on the SF-86, sometimes they rise to the level of cohabitation or implicate other areas of the SF-86 like foreign contacts. When that happens, the identity of the girlfriend/boyfriend must be listed and the context of the relationship will usually be drawn out in a subsequent interview by background investigators. An admission regarding an affair is indeed considered an “admission” under evidence law, and one which can be used against the applicant in some states in subsequent divorce or child custody proceedings. Remember, you sign your SF-86 under oath.
Security clearance applicants in the Armed Forces should also keep in mind that adultery is still considered a crime under the Uniform Code of Military Justice (UCMJ) in certain situations. The Fifth Amendment applies just as equally to UCMJ proceedings as it does to civilian criminal trials, so think very carefully before waiving that right.
Probation and Parole
The fact that someone is on probation or parole is not necessarily a bar to receiving a security clearance. For example, many people are on informal court probation for something like a DUI or a petty misdemeanor. In those cases, the court or the supervised release agency often requires that the applicant adhere to specific criterion. Two of the more common are no consumption of alcohol and no travel outside the home state without permission of the court.
Unfortunately, some applicants – in their commendable desire to be fully forthcoming on their SF-86 – wind-up admitting to violations of their supervised release by listing issues like recent unapproved travel or intoxication. That can result in revocation of probation/parole and incarceration. On the other hand, attempting to walk-back those admissions later may create an even greater problem: a perjury rap.
Taxes, Civil Court Judgments, and Lawsuits
List a foreign bank account? You’d better make sure you are paying taxes on the money and not hiding it from creditors. List an “under the table” job? Ditto.
Similarly, ownership stakes in businesses, substance abuse, or mental health counseling – all areas for reporting on the SF-86 – can also result in legal implications depending upon the nature of the issue and its relevance to contested matters like determining fault or ownership in a lawsuit. Leave it to us lawyers to figure out some way of using the information that you never expected.
As you can see, the ways in which information listed on the SF-86 can be used against the applicant are as numerous as they are creative…and the examples I’ve provided above are in no way inclusive. Do yourself a favor and have an attorney review the SF-86 prior to certification and submission if you have any issues you’re concerned about. It may very well be unnecessary, but it could also save you a huge headache. You can then make an informed decision about whether applying for the security clearance is worth any risks that may be present in your particular case.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
