In November 2022, OPM proposed consolidating and revising background investigation forms including the SF-86—the form used for positions that require access to classified information and sensitive positions. The revisions to the SF-86, if approved, would limit the information that applicants are required to disclose in several routinely problematic areas, including marijuana use, other drug use, alcohol use, and gambling. Although the timeline of approval and implementation is not set in stone, ODNI recently estimated that the changes will be issued and implemented in around a year from now.
NOTABLE PROPOSED CHANGES
Given the nature of the proposed changes, the uncertainty of the final revisions, and the inability to predict when the updated form will be implemented, most applicants may find these changes underwhelming. First-time applicants with an established history of marijuana use, “serious” drug use (i.e., not marijuana), or alcohol treatment, however, should consider whether waiting to apply for a position that requires a clearance may be in their best interest.
Today, the SF-86 requires disclosure of illegal THC use (products with 3% or greater THC concentration) within the last 7 years. If the proposed changes are accepted, the threshold question would ask whether the applicant has used illegal THC in the last 90 days. If the applicant answers “yes,” the applicant would then be asked to disclose all use in the last 5 years. Questions regarding whether an applicant has ever used marijuana while holding a security clearance or in a criminal justice or public safety position are not expected to change.
Today, the SF-86 requires disclosure of use of drugs other than marijuana (including misuse of prescription drugs) within the last 7 years. If the proposed changes are accepted, the applicant would only be required to disclose use and misuse for only the last 5 years or since the age of 16 if the applicant is under 21.
Today, the SF-86 requires disclosure if alcohol has negatively impacted the applicant’s life in the last 7 years. If the proposed changes are accepted, the question would ask whether the applicant has negatively impacted the applicant’s life in the last 5 years.
Today, the SF-86 also requires disclosure of whether the applicant has ever: 1) voluntarily sought counseling or treatment as a result of the use of alcohol; 2) been ordered, advised, or asked to seek counseling or treatment as a result of the use of alcohol; or 3) received counseling or treatment as a result of use of alcohol not disclosed in response to items 1 and 2. If the proposed changes are accepted, these questions would be limited to the the last 5 years or since the age of 16 if the applicant is under 21.
Today, the SF-86 also requires disclosure of whether the applicant has ever experienced financial troubles due to gambling. If the proposed changes are accepted, this question would be removed, though the same information may be disclosed in response to other financial questions or a new mental health question regarding whether the applicant has ever believed that they had “impulsive behavior or behavior [they] felt unable to control and caused negative consequences,” including uncontrolled gambling.
REASONS TO CONSIDER DELAYING APPLICATION
Those who may benefit the most from delaying an application until the new form is in use include those with an extensive history of marijuana use and those with a history of serious drug use or alcohol treatment – but only if their responses would be meaningfully impacted by the proposed changes. For example, let’s say Applicant A and Applicant B both last used marijuana on the same date 2 years ago. For Applicant A, it was their only use. For Applicant B, it was their last use after 20 years of use. Applicant A may not have much to worry about if disclosed today, depending on the circumstances of their one-time use. Applicant B, however, may decide to wait for the new form given the chance to avoid discussing their 20-year history of use. Others may decide to wait because they prefer to avoid the risk of a greater invasion of privacy or the potential implication of others.
REASONS NOT TO DELAY
On the other hand, there are several reasons that may weigh against delaying an application. These include that federal jobs are competitive (and it’s hard to risk missing a job opportunity when it arises), there are no guarantees of when the changes will be approved, and there are no guarantees of what the final changes will even be.
At the end of the day, whether to let the possibility of a new form delay your application is a very personal decision and should be decided only after a fact-specific assessment of your situation. Anyone weighing their options should consider consulting with a clearance attorney regarding their specific circumstances.
The above content is not legal advice and does not create an attorney-client relationship. The handling and outcome of any legal matter depends on varying factors unique to each matter, and results cannot be predicted or guaranteed. Do not act upon information without seeking legal counsel.