Here’s your weekly DOHA dose – a shot of security clearance appeal cases and their outcome. The Defense Office of Hearings and Appeals releases the results of their security clearance appeals cases. They’re one of the best insights into which clearance cases are granted or denied in the Department of Defense.
True or False: Participating in a motorcycle gang could cause your security clearance to be revoked.
Some people like to knit to relieve stress. Others build model airplanes. Some run. And others join Outlaw Motorcycle Gangs (OMGs) – an official Justice Department term for groups of motorcycle aficionados who add intimidation and criminal activity to their list of recreational pursuits. A recent appeal heard before DOHA addressed a security clearance holder who was working on a military base and who had held a security clearance since 2010 – and who was also a member of a motorcycle club where he associated with individuals involved in criminal activity.
The applicant was a founding member of the motorcycle club, which was a chapter of a larger group. The applicant noted he wasn’t aware the club was considered an OMG by local authorities, but stated that he formed the club because he liked to ride with individuals who had shared interests. None of the individuals he formed the club with were suspected of participating in criminal activity themselves.
The applicant was notified by his security officer (who was contacted by local law enforcement) in 2018 that the applicant was in a motorcycle club. The applicant didn’t disassociate with the club until a year later, however, when he discussed the club during a periodic review with a security clearance investigator. Following that interview, the applicant received a Statement of Reasons to deny his clearance based on Guideline E, personal conduct.
When the Government Changes Its Mind
The initial judge’s review of the SOR made the determination to grant the security clearance. But just as an applicant has the chance for an administrative review of the findings of the case, the government also has a chance for DOHA to: “review the decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion.”
Much like a lower court ruling going before an appellate court, the Department Counsel presented the evidence before a panel of administrative judges. As is the case in many of these cases, the applicant did not have counsel – which may have been helpful in this case.
Critical to the government’s argument was the presumption that simply being in an OMG was sufficient for the applicant to lose his security clearance, regardless of any direct criminal participation. Being a part of a broader organization which either participated or condoned criminal activity was enough to deny the applicant’s clearance eligibility. Another factor was the fact that the applicant did not immediately disassociate with the group as soon as his security officer reported it.
True: If you decide to make the Sons of Anarchy a true life moment, you will not be able to keep your clearance.
A rose by any other name may be as sweet, but as far as the government is concerned, an OMG is an OMG. Even if the applicant had no awareness of criminal activity, the association was enough to deny clearance eligibility. In this case, if he had taken more proactive steps (pro tip: if the cops visit your company FSO and tell them something, you probably need to take it to heart), clearance eligibility likely could have been maintained. When it comes to criminal conduct, the obligation is on the clearance holder to take deliberate, proactive steps to avoid any involvement.
