One of the most common and needless mistakes I see security clearance applicants make involves the listing (read: not listing) of sealed and expunged criminal records on their SF-86 forms. By the time the applicant comes to us for assistance, he or she is often fighting a preliminary security clearance denial based upon Guideline “E” (Personal Conduct) for the allegedly intentional omission.
Frequently our clients tell us that they were operating in good faith upon the advice of their former criminal defense attorney. “He told me that it was like it ‘never happened’ and I didn’t need to list it on future job applications,” is a common explanation. “It happened when I was a teenager and they told me the records were sealed,” is another. This is in spite of specific instructions to the contrary on the SF-86 form.
It is true that advice of counsel is often a legitimate defense to a Guideline “E” charge. Yet the bad information still costs the applicant time and money to clean up. So here is the simple reality: no matter how your criminal record disappeared, you must still list it on your SF-86. Unlike most traditional job applications, any state laws to the contrary are inapplicable under the constitutional principle of federalism (i.e. the states are prohibited from dictating how the federal government handles its own business). There is only one narrow and rare exception, which is for convictions expunged under the Federal Controlled Substances Act.
Note that there is no exception for otherwise reportable criminal conduct that occurred when the applicant was a minor, nor is there an exception for criminal conduct that occurred outside the United States. That is true whether the arrest occurred on or off an overseas U.S. military installation.
A few times in the past my legal advice on listing a sealed or expunged arrest has been met with the question of whether and/or how the government would find out if the charge was not listed. My response in each case was – and remains – that such a question implies an intent to be dishonest if the dishonesty will not be caught. It is effectively akin to playing Russian roulette and a mindset which I cannot advocate.
For the simply curious applicant however, if a state or locality filed the appropriate paperwork with the FBI, the charge may have been deleted from your RAP sheet in the case of an expungement. If they failed to do so, the record still exists. The treatment of sealed records can vary by jurisdiction, but the record often remains on an FBI RAP sheet.
Remember that you are signing your SF-86 under penalty of perjury. Honesty is the best policy.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
