A special post co-authored by security consultant William R. Loveridge and attorney Mark F. Riley, Esq.
Many criminal cases, involving both violent and non-violent acts, result in the perpetrator being placed on probation. This most commonly occurred in cases involving driving under the influence or shoplifting where a first-time offender is sentenced to probation before judgment (PBJ), which in some jurisdictions is called “deferred judgment” or “deferred adjudication”. It is a very important to understand the impact of such a judicial imposition, especially if you hold a federal government security clearance eligibility or have routine access to government facilities. You may think that being sentenced to PBJ is an easy fix for your criminal charges, but beware of what you ask for or are offered. Probation, even PBJ, can result in the revocation of a clearance or withdrawal of eligibility for access and very possibly subsequent termination of employment.
The Adjudicative Guideline
Executive Order 12968, Access to Classified Information, establishes the basic requirements to which all U.S. Government agencies must adhere when granting persons eligibility for access to classified information. In December 2005, the President approved revised adjudicative guidelines for determining an individual’s eligibility for access to classified information. The adjudicative criteria which covers individuals who are on probation or parole is Guideline J, Criminal Conduct. The concern is 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.” Conditions that could raise a security concern and may be disqualifying include the “individual is currently on parole or probation.” Conditions that could mitigate the concern include the conduct “(a) happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; (b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person’s life; (c) evidence that the person did not commit the offense; (d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.”
Although being on probation is not per se a bar to a security clearance, extensive reviews of cases processed through the Defense Office of Hearings and Appeals (DOHA) which involve individuals who are on probation at the time of the decision of the Administrative Judge (AJ) reveal that such cases rarely end in favorable determinations. It does not matter whether the probation is supervised (routine reporting to a probation officer) or unsupervised. In general, the DOHA AJs are reluctant to grant or continue clearance eligibility to an individual until a criminal court judge has found the person trustworthy or rehabilitated enough to terminate probation. One particular case was determined favorably in January 2014, in spite of the fact that the individual was still on probation for a 2010 driving under the influence charge. The decision was subsequently overturned by the DOHA Appeals Board after appeal by the Government.
Historically, prior to the consolidation of the various individual DoD central adjudication facilities (CAFs), adjudicators in the military CAFs looked a little less harshly on individuals who were on unsupervised probation, focusing more on the actual offenses they were charged with and the details of the criminal activity. In many cases, individuals were granted clearance eligibility with a warning that failure to satisfactorily complete probation requirements would result in a re-evaluation of eligibility. Based on the experiences of the authors, adjudicators are looking harder at military and civilian personnel who are on probation and a more stringent application of this guideline has resulted in many more Statements of Reasons (SORs) being issued. In those few DOHA cases where the individual was granted eligibility/access, the most common justification cited by the AJ was the extensive efforts of the individual at rehabilitation, coupled with significant behavioral and life-style changes. In those cases where the DOHA hearing judge or the DOHA Appeals Board issued a denial or revocation of eligibility, the most common justification cited was that so long as the individual remained on probation, there was insufficient evidence of successful rehabilitation.
Individuals who hold a government clearance eligibility or access are required to self-report information which could have an effect on their favorable determinations to their respective Security Manager or Facility Security Officer. If you have eligibility for a clearance, special access or a position of trust and are pending criminal charges, we recommend that you advise your attorney of the potential impact of probation on your eligibility and encourage him/her to negotiate a result that will avoid a sentence of probation. In a very high percentage of cases, individuals who are on probation when the case is adjudicated will lose their eligibility or access. Good luck.
William R. Loveridge is a Facility Security Officer, a security consultant, a retired US Army Supervisory Personnel Security Adjudicator and a retired US Army Reserve Warrant Officer.
Mark F. Riley is an attorney who represents clients in areas of security clearance, national security, military, and criminal law. He is also a retired U.S. Army Lieutenant Colonel, Military Intelligence.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.