It happens to many good people: an uncharacteristic brush with the law that continues to haunt them years later.  If this sounds like you, perhaps you’ve considered pursuing an expungement of your record.  

Do Expungements Mean I Can Check No to the Arrests Question

There are plenty of good reasons for pursuing an expungement; most notably, the ability to check “no” to questions about arrests on employment applications.  Unfortunately, improving your odds of obtaining a security clearance isn’t one of those reasons.  Whether or not a criminal charge has been expunged is largely moot from the standpoint of security clearance officials, who are required to examine the conduct resulting in the charge rather than merely the disposition.  

“But wait,” you might be thinking.  “An expungement means the charge is removed from my criminal record, and I don’t have to report it on my security clearance application.  My criminal defense attorney told me that!”

Your Criminal Defense Attorney Was Wrong

Your criminal defense attorney, although undoubtedly well-meaning, was wrong – at least about the latter.  Subject to one exception, which I will discuss below, the SF-86 security clearance application explicitly requires applicants to list records that were sealed, expunged, or otherwise stricken from the record by a court.  And since the reality is that removal of expunged records from criminal databases can be spotty, many times the record you thought was expunged will still be lurking on an FBI RAP Sheet or in a local law enforcement agency’s database just waiting to be discovered by background investigators.

Exception

The one exception referenced above is “convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607.”  If your charge clearly meets that narrow criteria, consider yourself lucky.  Otherwise, don’t play semantics and try to shoe-horn in something else.  I’ve seen enough people try it to emphatically characterize it as a bad idea.  

Honesty Over a Clean Record

The irony is that any charge that has been expunged by a court is probably of such age and of such a minor nature that even if the applicant listed it, as required on the SF-86, it would not serve as a barrier to obtaining a security clearance.  But, for whatever reason, I see a number of smart people every year suddenly develop poor reading comprehension skills with respect to the criminal record section of the SF-86 or blame advice from their criminal defense attorney.  

Trust me: security officials aren’t going to care about your marijuana or public intoxication arrest ten years ago at age 19 (unless there is subsequent evidence of a pattern).  They will, however, care about a lack of candor evident in trying to hide it.

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