In 2015 I helped a client answer a letter of intent to deny his security clearance. He was halfway through a Chapter 13 bankruptcy. He had modified the terms of the bankruptcy three times, because serious physical injuries from a car accident made it increasing difficult for him work in his occupational field and resulted in declining income. After a short period of unemployment, he secured a job at a defense agency as a GS-3 part-time employee and quickly advanced to a full-time GS-7 position. The GS-7 position required a Secret clearance. I saw this case as being ideal for a conditional clearance (also known as conditional eligibility).
I’d never had any experience with conditional clearances before. I knew they existed for Sensitive Compartment Information (SCI). As early as 1998, SCI regulations defined a conditional clearance and listed it as one of three “exceptions” to SCI eligibility standards. However, in 2015 there was only one brief mention of conditional clearance in the primary Department of Defense (DoD) personnel security regulation (DoD 5200.2-R) and in DoD Instruction 5200.02. But there was no explanation in DoD 5200.2-R or DoDI 5200.02 of what it was or how it was used.[1] Nevertheless, I gave it a shot and included the following as the last paragraph in my client’s answer to his Statement of Reasons:
If it is not possible to grant a security clearance based solely on the information in this SOR response, I request that consideration be given to granting a security clearance on a conditional basis. I am willing to comply with any conditions required by DoD Consolidated Adjudications Facility, and I agree to the automatic revocation of the security clearance granted to me should I fail to comply with any such conditions.
Conditional Clearances: Some Instruction Required
In May 2015 DoD CAF[2] sent my client a memorandum titled, “Tentative Conditional Security Eligibility Determination.” The memo contained the following information and instructions:
Under the adjudicative criteria of the Department of Defense Personnel Security Program, DoD Regulation 5200.2-R, you have tentatively been determined eligible for access to classified information and/or occupancy of a national security sensitive position contingent upon your acceptance of, and agreement to abide by the conditions set forth in this memorandum. This tentative determination is being proposed despite your history of financial difficulties and prior to the complete resolution of your financial situation.
To meet the conditions of this determination you are required to provide proof of your regular and timely payments to your Chapter 13 bankruptcy trustee, pay all of your other creditors in a timely manner, avoid accumulating any new unnecessary debt you cannot afford, and immediately report any adverse change in your financial situation to your Agency Security Office or designated point of contact. One year from the date of your eligibility, your Security Office will request you to (1) complete and/or update a Questionnaire for National Security Positions (SF86), (2) provide proof of your bankruptcy trustee payments, (3) provide a updated Personal Financial Statement, and ( 4) provide a copy of your most recent Leave and Earnings Statement.
Since then, “Continuous Vetting” (CV) has obviated some or all follow up reporting required for conditional clearances. In November 2021 DCSA issued a “Conditional Eligibility Determinations Fact Sheet,” describing new rules and limitations at DCSA CAF for implementing the use of conditional clearances. There was also an article about conditional eligibility determinations in the DCSA CAF publication, “FY21 Adjudications Year in Review—Annual Report.” The article stated:
A subject may be granted a Conditional Eligibility when continued security monitoring can be used to detect subsequent derogatory behavior based on the following SEAD 4 Adjudicative Guidelines: Sexual Behavior, Financial Considerations, Alcohol Consumption, Drug Involvement and Substance Misuse, and Criminal Conduct. For qualifying cases, the subject of investigation agrees to conditions described in correspondence from DCSA CAF sent to them and their command and/or security manager, as well as continued security monitoring by VRO via the CE/CV program. The correspondence also includes the requirement to not engage in additional derogatory behavior. [Emphasis added]
Industrial contractors are currently ineligible for Conditional Eligibility Determinations due to policy requirements identified in SEAD 7, “Reciprocity of Background Investigations and National Security Adjudications. [Emphasis added]
I’ve read Security Executive Agent Directive 7 (SEAD 7) a few times, and I can find nothing in it that prevents DCSA CAF from granting conditional eligibility to contractor applicants. The only limitation in the past was their lack of authority to compel contractor Facility Security Officers (FSOs) to monitor a person’s compliance with conditions. In their fact sheet, DCSA specifically states, “In the current [new] process, the Subject, Security Manager, and Commander are not required to provide any additional reporting correspondence.” If that’s the case, there is no longer any limitation to DCSA granting conditional eligibility to contractor applicants. Additionally, a memorandum from the Director for Defense Intelligence (Intelligence and Security), dated January 12, 2018,[3] stated:
Effective immediately, authority to grant clearance eligibility with one of the exceptions enumerated in Appendix C [to SEAD 4] is granted to any adjudicative, hearing, or appeal official or entity now authorized to grant clearance eligibility when they have jurisdiction to render the eligibility determination.
Defense Office of Hearings and Appeals (DOHA) administrative judges (AJs) did not have authority to grant conditional clearance eligibility to federal contractor applicants[4] until June 2017, when the new National Security Adjudicative Guidelines in SEAD 4 were implemented and gave them that authority.[5] Since then, DOHA AJs have considered and occasionally granted conditional eligibility to contractor applicants. So, contractor applicants can be considered for a conditional clearance, but right now it’s only happening at DOHA after a preliminary decision to deny or revoke clearance by DCSA CAF and the issuance of a Statement of Reasons (SOR). That’s changing. The Director of DOHA recently stated at a National Industrial Security Program Policy Advisory Committee (NISPPAC) meeting that DCSA CAF “is working on an initiative whereby they’re going to start issuing conditional clearances in industry.”
In the interim, it’s still a little problematic for DOHA AJs to grant conditional clearances without the authority to have contractor FSOs monitor a contractor applicant’s compliance with conditions. There shouldn’t be any problem for DOHA to have DCSA CAF monitor a contractor applicant in the same manner DCSA CAF monitors a DoD civilian employee or member of the military, who has been granted a conditional clearance. Nevertheless, if you intend to include a request in your SOR response for DOHA to consider granting a conditional clearance, it’s probably wise to include a letter from your FSO that s/he will comply with any conditions required by the DOHA AJ.
In one DOHA case where I requested a conditional clearance be considered, the DOHA Department Counsel (the opposing government attorney) argued in the File Of Relevant Material (FORM): “It is incumbent upon an applicant to raise and present evidence of how specific, relevant conditions could be imposed, monitored, and enforced. This is part and parcel of an applicant’s responsibility to present evidence of refutation, extenuation, or mitigation of the Government’s concerns.” Department Counsel cited four DOHA Appeal Board decisions (one from 2002 and three from 1995) to support this claim; however, none of these Appeal Board decisions were relevant to conditional clearances, because as previously stated, DOHA AJs didn’t have the authority to grant a conditional clearance until June 2017. Even though I didn’t think it was necessary, in response to the FORM I submitted written suggestions on how conditions could be imposed, monitored and enforced. For this and many other reasons, I usually recommend that applicants seek professional help, if they receive an SOR. The AJ ultimately granted the clearance without any conditions in this case. Semper Gumby!
[1] In April 2017, a more detailed explanation of a conditional clearance was included in DoD Manual 5200.02, “Procedures for the DoD Personnel Security Program (PSP).
[2] In June 2022 the DoD Consolidated Adjudications Facility (CAF) changed its name to the Defense Counterintelligence and Security Agency (DCSA) Consolidated Adjudication Services (CAS).
[3] Cited in DOHA ISCR Case No. 19-02793 (Mar 2, 2020).
[4] A DOHA administrative judge does not have “authority to grant an interim, conditional, or probationary clearance.” ISCR Case No. 10- 06943 at 4 (App. Bd. Feb. 17, 2012) (citing ISCR Case No. 10-03646 at 2 (App. Bd. Dec. 28, 2011)).
[5] “Appendix C of Security Executive Agent Directive (SEAD) 4 grants DOHA administrative judges the discretionary authority to grant initial or continued eligibility for a security clearance despite the presence of an issue(s) that can be partially but not completely mitigated with the provision of additional security measures.” (See: DOHA ISCR Case No. 19-02793 (Mar 2, 2020)).
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