ASK 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.
Some of the more unfortunate inquiries I receive are from individuals facing a security clearance denial or revocation on the basis of bad advice they received from their Facility Security Officer (FSO). It happens with surprising regularity: there are many highly professional and educated FSO’s out there, but also plenty who were thrown into the job as an afterthought or an ancillary role.
Security clearance applicants generally trust their FSO’s, so it is with good reason that they follow instructions on what information to provide or omit on their SF-86. But sometimes well-meaning advice only winds up creating problems – namely, the appearance that the applicant lied by omission. What is an applicant in this position to do?
To start, I recommend that an applicant who is unsure about how to answer a question or has reservations about their FSO’s advice consult with a security clearance attorney or, at minimum, query a second knowledgeable official at their employer. Think of it like getting a second opinion on a medical problem.
Second, establish a paper trail. An overwhelming majority of the falsification cases I see could have easily been resolved with something as basic as an email chain between the applicant and his or her security manager. Something like this:
“Dear (Security Manager),
This is to confirm our conversation today regarding question ____ of the SF-86 form. In that conversation, I asked for your guidance on whether I needed to list my 2014 arrest for assault. You indicated that I did not need to do so, as the arrest has been expunged. Please reply to this email and confirm that my understanding of your guidance is correct. I will then submit my completed e-QIP.”
Security clearance falsification cases turn on intent. If an applicant reasonably followed advice from someone who s/he believed was qualified to give it – either a government or company security official or an attorney – that should be sufficient to absolve the applicant of culpability. (Hint: the fact that an arrest was expunged is irrelevant – the SF-86 form still requires that it be listed if within the scope of seven years, a felony, or an offense pertaining to certain enumerated categories of behavior). Be sure to print out any written communications on the matter and keep them in a safe place in the event that you change jobs before the clearance is adjudicated.
Finally, if you do have a reportable issue, don’t squander the time between when you submit your SF-86 and when you first get questioned about the concerns by a background investigator. Talk with your FSO or a security clearance attorney at the time you submit your application about steps you can take to establish favorable mitigation. Almost every issue can be mitigated to some extent, but doing so can take time. Don’t wait until the last minute to attempt it.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.