ADVICE FROM THE GENERAL COUNSEL
Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com
It is with some regularity that I receive the following phone call:
“I already submitted my SF-86 (or had my investigative interview) but now I’m having second thoughts about what I wrote (or said). Frankly, I was less-than-honest. What do I do now?”
The easy answer to this question is to correct the record by telling the truth; anything else means you are potentially subjecting yourself to prosecution and a security clearance denial – not to mention the weight of a guilty conscience. But how does one do that and what will be the consequence? Is there ever a time when doing so is unadvisable?
The antidote to a guilty conscience
My general advice to applicants is that correcting the record early is the best antidote to problems both with security clearance officials and criminal justice officials. Intent does matter, and even if you intended to lie at the time you made the false statement, showing remorse before you get called to the carpet on the lie goes a long way in rehabilitation. More broadly, most federal prosecutions for false statements occur when the false statement has materially impacted the course of the background investigation (i.e. had the agency known the truth, they would have altered their investigation and/or their adjudicative decision). Correcting the record early removes that issue from the equation, significantly decreasing – if not eliminating altogether – the chances of prosecution.
Simply writing a letter to your security manager or calling your background investigator is usually sufficient. If you do the latter, be sure to ask your investigator to meet in person for the conversation – so you can confirm with your own eyes that the updated information made it into his or her report. Bottom line: you need a paper trail to protect yourself. You may wish to seek out an attorney for assistance in framing your statement. In addition, if the falsification was due to a misinterpretation of a question or information of which you were previously unaware, be sure to highlight that early and often. It may not even be considered a falsification in some cases; remember that intent is the critical element. Common examples are:
- You received a citation / court summons that you didn’t list because the fine was under the reportable threshold. You later find out that it was a misdemeanor citation and thus reportable as an arrest.
- You fail to list minor marijuana use because it occurred in a jurisdiction where legalized under state or local law. You later find out that the feds don’t care about state or local laws and still consider marijuana illegal.
- You don’t list a foreign contact who you think is a U.S. citizen, only to later discover that s/he is not.
Finally, there is one situation in which correcting the record on your own may not be advisable: if your late admission would be to previously undiscovered criminal conduct that is of sufficient seriousness that prosecution is likely. In that case, talk with an attorney before you do anything else.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.