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When filling out the Questionnaire for National Security Positions (SF-86) there is a section right after the instructions that you have to acknowledge as having read. It states: “I have read the instructions and I understand that if I withhold, misrepresent, or falsify information on this form, I am subject to the penalties for inaccurate or false statement (per U.S. Criminal Code, Title 18, section 1001), denial or revocation of a security clearance, and/or removal and debarment from Federal service.”
The security clearance background investigation process falls under federal guidelines, therefore, any criminal charges must be filed in a Federal District Court by the charging agency. If convicted, the criminal penalties include fines of up to $10,000 and/or imprisonment up to five years. So why don’t we hear of anyone (other than background investigators) getting charged with and convicted for this offense?
The reason most instances of falsification or misrepresentation on clearance applications do not result in criminal charges is simple. First, Office of the Inspector General Special Agents or that specific agency’s law enforcement officers have a big workload with more serious or higher priority investigations to pursue, so unless there are other criminal charges involved they most likely will not pursue it. Second, federal prosecutors also have an enormous workload and don’t want to spend the resources, time and effort on these types of case.
So where does that leave us as far as punishing the individual?
The deciding agency or organization who discovered the violation, after affording the individual due process, has a few options available. The agency can just leave it as a simple security clearance denial or revocation and the individual will still be eligible to apply for other non-sensitive positions within that agency. They can also debar the individual from eligibility for all positions within that agency for a period of up to three years. The agency can also submit a request to OPM for them to initiate action to debar the individual government-wide, but considering the levels of bureaucracy and time involved, this rarely happens.
I have seen a few rare cases where criminal charges were pursued, mostly in instances where the falsification was egregious and involved withholding information on serious criminal conduct. In all of these cases the individual was found guilty and convicted of a felony offense. For the rest of the cases, agencies would rather just deny or revoke the individual’s security clearance and terminate their relationship with the agency in order to move on to the next candidate. The caveat for that individual is that now they will have additional adverse information to disclose on any future security clearance application, which may impact them being offered employment.