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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.
Millions of Americans – including a not insignificant number of security clearance holders – are on some form of supervised release. The terminology varies from state to state, but typically the term “supervised release” means probation, probation before judgment (PBJ), or parole.
Probation is a sentence after judgment of guilt by a court and is usually given in lieu of incarceration. In the federal system, however, probation is the equivalent of parole (see below).
Probation before judgment is just that: a second chance courts give to low-level offenders to avoid a conviction by exhibiting good behavior for a specified period of time.
Parole is the most serious form of supervised release, and the type that is imposed after an offender has been released from prison early but before he or she has completed their full sentence.
The question often arises in our cases whether the client is eligible for a clearance despite being currently categorized as an offender by one of the above systems. If you read the first sentence of the article carefully, you will observe many security clearance holders are on some form of supervised release – so the short answer is that merely being on supervised release is not, in and of itself, a disqualifier. However, supervised release can still present challenges for a security clearance applicant, especially if the crime that resulted in the supervised release was a serious one.
The government’s argument in these cases is not exactly earth-shattering, but it is often effective: if a court still has concerns about your honesty or judgment, why should the government trust you with access to classified information? In a perfect world, I would advise any prospective security clearance applicant on supervised release to simply wait until he or she is no longer under supervision before applying for the clearance. But this isn’t a perfect world. Sometimes a once-in-a-lifetime job opportunity presents itself or one’s current employer makes obtaining a clearance a condition of continued employment. When that happens, there are a few things that you can do to increase your chances of success:
- Petition the court or parole board for early release. If you’ve made significant strides in self-improvement and you are serious about moving on from the past, a court may well consider that the interests of justice have been served. It is always worth asking.
- Ask your probation or parole officer for a letter of support. In practice, I have found that many are reluctant to specifically state that they recommend the applicant for a security clearance, but a favorable letter regarding your compliance with the terms of supervised release does carry weight.
- If your release from probation or parole is imminent (i.e. within the next 6-8 months), consider what you can do to “slow-walk” the security clearance process. For example, ask for more time to complete your SF-86 or ask if your investigator is willing to reschedule your interview a few weeks later. If you can buy yourself enough time to get off supervised release prior to your security clearance being adjudicated, you can – and should – contact your investigator to update him or her with that information.
The bottom line is that supervised release is not necessarily the kiss of death for a security clearance, but it will definitely make getting one harder. The real issue is the underlying conduct. Moral turpitude offenses (i.e. those that call into question your honesty or peacefulness) are a much tougher sell than more technical or negligence-based offenses.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.