It’s no secret that deliberately falsifying one’s security clearance application (SF-86) can result in serious penalties, including denial or revocation of a security clearance and potentially even criminal prosecution.

For most people, those deterrents are enough to ensure honesty. Yet for those subject to the Uniform Code of Military Justice (UCMJ), there is another, lesser-known falsification penalty that can be lurking in the background: a fraudulent enlistment charge.

The UCMJ touches a broad swath of Americans, including active duty soldiers, reservists, guardsmen, those in IRR status, and even some discharged soldiers who can be recalled to active duty for the purpose of facing a court martial. Article 83, the UCMJ’s fraudulent enlistment component, makes punishable any false statement or omission that impacted the soldier’s enlistment or appointment. In other words, if the military had known the truth and would not have enlisted or appointed the individual under the circumstances, a fraudulent enlistment charge is viable. Since certain data impacting enlistment or appointment is gleaned from the SF-86 – most often, past drug use, criminal history, and psychological history – false statements or omissions on that form can impact not only the decision to grant a security clearance but the decision regarding enlistment or appointment itself.

In theory, a criminal prosecution for false statements in civilian court differs little from a court martial for fraudulent enlistment; the federal criminal code actually imposes a maximum penalty of five years in prison, whereas the UCMJ imposes a maximum penalty of two years imprisonment. But there is a substantial difference worth understanding that increases the potency of the UCMJ charge:

Whereas a conviction for false statements in federal court comes with a potential fine and imprisonment, a conviction for fraudulent enlistment can include as penalties imprisonment, forfeiture of all pay and allowances procured by the fraud, and a dishonorable discharge.

The dishonorable discharge in particular can have lasting implications on a veteran’s pension and benefits (an area outside the scope of this article) and is one of the few circumstances that tends to result in the categorical denial of a security clearance even years later; meritorious waivers are possible, but rare. Moreover, a dishonorable discharge stains the entirety of what may have been otherwise honorable service, effectively freezing the veteran out of even non-cleared work opportunities that might be available to someone with skills learned in the military.

Ultimately, all of this reinforces the fact that honesty is the best policy when it comes to dealing with the government. Clearance holders worried about how to accurately complete the SF-86 or how disclosing certain information will impact the viability of their application should retain legal counsel before submitting the form.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.

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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