|The “Criminal Conduct” criterion in the Adjudicative Guidelines For Determining Eligibility for Access To Classified Information affects security clearance applicants who have been arrested, charged or convicted of a single serious crime or multiple lesser offenses. Others who have intentionally provided false information on their clearance application forms, who have had illegal drug involvement, or who have been involved in previously unreported crime can also be affected.
Over the years Criminal Conduct has consistently been among the 4 most common reasons for security clearance denial.
The Adjudicative Guidelines states that “Criminal activity creates doubt about a person’s judgment, reliability and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules and regulations.” Because of the high rate of adult recidivism, this issue is perhaps one of the best predictors of future compliance with rules for handling classified information.
Criminal offenses are divided into three categories—infractions, misdemeanors, and felonies. For security clearance purposes, an infraction is a crime for which the maximum possible penalty is a fine; a misdemeanor is a crime for which the maximum possible penalty is incarceration for up to 1 year; and a felony is a crime for which the maximum possible penalty is incarceration for more than 1 year.
The “Questionnaire for National Security Positions” (Standard Form 86—SF86) asks if an applicant has ever been charged with a felony offense or any offense involving alcohol, drugs, firearms or explosives. It also asks if an applicant: 1) has been arrested within the past 7 years (10 years for Top Secret clearance), 2) has been subject to court martial or other military disciplinary proceedings, or 3) is currently pending some court action for a criminal charge or offense.
The distinction between “arrested” and “charged” can be important for anyone arrested more than 7 or 10 years ago for a felony or any offense involving alcohol, drugs, firearms or explosives, but not formally charged with one of these offenses. Applicants often mistake the charge or offense listed on the police report as a charge that must be listed on the SF86. Since a charge can be changed or dropped between the time of an arrest and the defendant’s initial court appearance, the best definition of a “charge” for SF86 purposes is any accusation of criminal conduct as it is initially presented at court.
For SF86 purposes an arrest is any situation in which a law enforcement officer restricts a person’s freedom, then either takes them into custody or releases them on their promise to appear in court (i.e. issues a citation). Under this definition a traffic offense resulting in a citation is technically an arrest; however, minor traffic citations resulting in a fine of $300 or less can be omitted from the SF86, unless they involved drugs or alcohol.
There are certain circumstances where a person can be taken into custody, but not technically arrested. This typically occurs when a person is initially arrested for being drunk in public, placed in a jail cell until sober, then released without any conditions or further action. In their report police record this as a detention not amounting to an arrest (or some similar wording). It is strongly recommended that such incidents be disclosed in the appropriate comment section of the SF86.
In the SF86 there is an exception that permits withholding information about certain expunged drug convictions. This exception only applies to drug convictions and expungement orders in a federal court. Consequently, clearance applicants must list all applicable dismissed charges and convictions even if the record was sealed, expunged, or otherwise stricken from a state or local court record.
COMPLIANCE WITH BOND AMENDMENT
The Bond Amendment (50 U.S.C. 435b, Section 3002), which became law in January 2008, prohibits all federal agencies from granting or renewing eligibility for access to Sensitive Compartmented Information, Special Access Programs, and Restricted Data for anyone who has been: 1) convicted, sentenced, and incarcerated for a term exceeding 1 year for any crime or 2) discharged/dismissed from the Armed Forces under dishonorable conditions. As a practical matter, due to the inability to always predict future access to Restricted Data, these Bond Amendment restrictions may be applied to the adjudication of all levels of security clearances. In many agencies senior adjudicators have the authority to waive these Bond Amendment restrictions. When an adjudicator would have arrived at a favorable decision but for a Bond Amendment disqualification, the adjudicator may grant a meritorious waiver if deemed appropriate.
CRIMINAL ASPECTS OF OTHER ADJUDICATIVE CRITERIA
A knowing and willful false statement made in connection with a security clearance application is a felony. Normally this offense is considered under the Adjudicative Guidelines’ “Personal Conduct” criterion, which specifically addresses this issue. However adjudicators can cite both Personal Conduct and Criminal Conduct for this single criminal act. Likewise, an adjudicator may cite Criminal Conduct in addition to Alcohol Consumption, Drug Involvement, or Sexual Behavior when there has been a single felony or multiple misdemeanor offenses at least one of which involved alcohol, drugs, or sexual conduct.
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