You’ve just been provided a new SF-86 to complete as part of a reinvestigation, but life has been complicated during the last few years and you’re not sure how to answer a particular question on the form. Do you guess and hope for the best? Ask a coworker? Do some internet sleuthing?

I’ve seen people do all of the above, and the common result is generally a bad one. The SF-86 can be deceptively complicated; for example, do you understand the difference between an arrest and a criminal charge? How about who counts as a reportable foreign contact or what constitutes an “information technology system”? It is easy to inadvertently provide an incorrect answer and the consequences for doing so can be severe if the erroneous answer looks intentional or the applicant was negligent in his or her efforts to answer correctly.

Fortunately, there are some options that will help you protect yourself against bad outcomes. One option is retaining qualified legal counsel – an attorney who devotes his or her practice exclusively or primarily to security clearance matters – for a legal opinion. “Advice of counsel” can be a defense against an accusation of intentional falsification, but hopefully good advice helps you avoid such an allegation altogether. Notably, a legal opinion is confidential and can also help identify other potential landmines in your application that you may have missed. If you have a complicated background, having an attorney review a draft version of your SF-86 prior to submission is often money well spent.

Alternatively, the security clearance adjudicative guidelines offer a “safe harbor” for advice obtained from a U.S. government security official or Facility Security Officer. Unlike a legal opinion, that advice is ostensibly free. Just keep in mind that it doesn’t come with confidentiality. One example we’ve seen involves drug usage. Many employers have a zero-tolerance policy for drug use, so if you’re asking your FSO questions about whether certain drug involvement is reportable on the SF-86 you might be buying yourself a job termination in the process. If you do opt to seek advice from a security official or FSO, be sure you get it in writing. Without a written record, you’re setting yourself up for problems.

The third option if you are unsure how to answer a particular SF-86 question is to provide what you think is the correct response, but then supplement it with a detailed explanation of pertinent facts and circumstances in the comments section of the form. This is not always ideal; if your initial inclination was correct you’ve now provided the government with non-responsive but potentially derogatory information that they are entitled to adjudicate. (In other words, you may have shot yourself in the foot). On the other hand, if your initial inclination was wrong, providing this information should be a complete defense to any allegation of intentional falsification because the government was not deprived of the information it needed to investigate your background.

Clearly, there is an order of desirability with respect to these options. But all of them can help you avoid the biggest clearance-killer of all: being branded as dishonest.

 

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