Despite the severe potential penalties for lying on an SF-86 form, a significant number of people call my office each month having done just that. Most of these folks completed the form recently. After a few sleepless nights they contact us in a panic asking for help correcting the record while minimizing any punitive action.
Silver bullet After Lying on the SF-86 the First Time?
Many of those situations can, in fact, be rectified without serious blowback if the correction is made promptly. There is, however, another group of similarly-situated people who call my office and don’t typically fare as well. I’m talking about those who were less-than-forthcoming on their last SF-86, didn’t get caught, and are now up for either a periodic reinvestigation or an upgraded level of access. These clearance-holders are often hoping for a silver bullet – a magic solution that will undo their past mistake and wipe the slate clean. Unfortunately, few things in the law work like that. Sometimes, hiring an attorney means paying someone to help you find the least-worst option.
Two Options After Lying on the SF-86
In this situation, there are really only two such options – and lying again isn’t one of them:
1. Come clean and brace for the fallout.
The fact of the matter is that even good people make mistakes. People also theoretically mature with time. If you don’t have another career option and you’re willing to take the gamble of a security clearance revocation, telling the truth on the SF-86 this time around and letting the chips fall where they may is certainly an option.
Unless you are extraordinarily lucky, odds are that security officials will catch the discrepancy between your current and prior SF-86’s and hold you accountable accordingly. Depending on a variety of factors, including your age at the time of the prior SF-86, evidence of subsequent maturation, and demonstrated remorse, you may be given a second chance. It’s a tough nut to crack, but not impossible with the right legal strategy.
That being said, there are other considerations besides just the potential revocation of your security clearance. If you completed your last SF-86 less than five years ago, you are still within the statute of limitations for a federal false statements prosecution. Such cases are rare, but they do happen – especially when the lie was particularly egregious and would have resulted in a clearance not being granted.
Military service members also need to be aware of the potential for UCMJ action, including a fraudulent enlistment charge if the SF-86 at issue was completed as part of the initial or re-enlistment process. An obscure provision of the 2018 National Defense Authorization Act extends the statute of limitations for fraudulent enlistment cases back to the date of enlistment under the Service Member’s current contract, even if that was greater than five years ago. When in doubt, talk with a criminal defense or military defense attorney before admitting to falsifying an SF-86.
2. Walk away (at least for now).
Some of our clients are, indeed, extraordinarily lucky: whatever they lied about on the last SF-86 is now outside the scope of reporting for the new SF-86. For example, they completed their last SF-86 ten years ago, omitted illegal drug use that occurred eleven years ago (then within the scope of reporting), and haven’t used any illegal drugs since. Assuming that eleven-year-old drug use wasn’t while they were holding a security clearance or serving in a law enforcement role, there would be nothing to report in the drug use section on a new SF-86 and no one would be the wiser regarding their prior omission unless the issue were to arise during a polygraph examination (which applies to only a relatively small percentage of clearance-holders, mostly within the Intelligence Community).
Assuming you aren’t that lucky, the other option is to simply decline to complete a new SF-86 and withdraw the request for a security clearance. Armed Forces service members may not have that luxury, but civil service employees and contractors are under no obligation to complete a new SF-86. Resignation is always an alternative, as is a lateral move to uncleared job duties, if available in your organization.
This outcome may not be ideal – especially if it means temporary unemployment – but for career federal employees or contractors it may be considerably better than the alternative of a security clearance revocation (not to mention potential prosecution). Under this scenario, the employee could work in private industry or even non-cleared government work for a few years until the issue(s) omitted from the prior SF-86 fall outside of scope on a new application. Usually, that means seven years from the date of last drug use, alcohol-related incident, or other reportable derogatory information. And for the few situations where the prior omission will never fall out of scope – for example, a “have you EVER…” question – the passage of additional time can be of significant value in mitigating the prior falsification.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
