An interesting question popped up on the ClearanceJobsBlog forum and it wasn’t whether an incident should be reported. It was whether an incident that has already been reported and adjudicated can come back to haunt you again.
A recent forum poster asked whether they could be flagged twice for the same reported incident after it had already been addressed during their security clearance process. After all, if you disclosed the issue, cooperated with investigators, and kept your clearance through DCSA, shouldn’t the matter be closed?
The answer is: not exactly.
HurricaneWarning11 writes:
I have a pretty crazy story and I need some advice from security managers and/or former adjudicators. I’ve had a TS/SCI clearance since 2008 with a clean record. Until about 3 years ago I made a very dumb decision during a divorce and accessed my ex-partners iCloud account from my unclassified work computer. I was working at a three-letter agency and was walked out. They never told me why. Never got an SOR.
7 months later I got another job but my SCI would never adjudicate because I had a “SCI adjudication suspended pending SMO response” flag in my clearance. I was let go from that job too, after 19 months because of that. I still had no idea what was going on. Until I found out what the incident was when the FBI knocked on my door to ask questions about the iCloud access. I then got a TJO for a GS position with the Navy. They of course saw the SMO flag and the LOJ in DISS and asked me what happened. I fully disclosed the iCloud incident to the Navy Security Manager. This was the first time I actually had an opportunity to report what the incident was. A few months later DCSA sent me an SIR to fill out a new SF-86. I did, reported the incident, and lo and behold, within 10 days DCSA regranted my TS/SCI eligibility, and the Navy promptly gave me an FJO. Finally, after 3 years of limbo! My wife and I literally cried.
So, all good right??? Oh no no no.
2 months after the FJO the FBI/DOJ calls and they are talking about charging me with unauthorized access. For the EXACT SAME incident that DCSA already vetted and mitigated. I also received my PCS orders while all this is going on with the DOJ. I have some time before I have to report because the position is OCONUS.
My attorneys met with the prosecutor and he is not declining. And the best we can hope for is MAYBE Pretrial Diversion which is 12 months and it has to be done here. Either way they said my Navy assignment is not happening.
I have not been arrested, nor charged, but I plan on telling the Navy Security Manager as soon as I get an official answer.
So, my questions are:
Is my clearance probably gone?
Does a misdemeanor kill my career?
How does PTD work with clearance?
Considering this potential charge is the legal resolution from the same incident I already reported, what are my odds of keeping my clearance?
I have seen instances of a person keeping their clearance even with a felony as long as they were honest and reported it. I plan on being 100% honest and reporting this the instant I am charged or plead to anything.
This has been a very stressful 3 year nightmare for my family and I. I thought it was over when DCSA granted me eligibility again, but I was wrong. I know my GS position is most likely gone, but surviving this and keeping my career is top priority
Any advice would be very helpful.
The Difference Between Criminal conduct and Security Adjudication
The security clearance holder in this case is operating with a few issues simultaneously – and confusing a favorable DCSA adjudication with the prior determination held in limbo by the three letter agency clearance. In addition, it appears there is a criminal case operating outside of and separate from the clearance case entirely. Courts determine guilt or innocence under criminal law. Security clearance adjudicators evaluate risk.
Even conduct that never resulted in an arrest or conviction may still be reviewed if it’s relevant to an individual’s judgment, reliability, or trustworthiness. Likewise, an incident that was previously mitigated may become relevant again if criminal charges change.
What Guideline M Says
The forum discussion also raises another important point: compliance with security rules matters.
Under Adjudicative Guideline M: Use of Information Technology, failure to comply with IT policies, procedures, or regulations can raise concerns about an individual’s reliability and willingness to safeguard sensitive information. Guideline M applies broadly to computers, mobile devices, wireless devices, software, hardware, firmware, and any technology used to create, process, store, protect, or transmit information. Simply put, security professionals expect cleared personnel to follow established rules when handling government systems and data.
Like every adjudicative guideline, adjudicators evaluate the nature of the conduct, whether it was isolated or repeated, whether it was intentional, and whether mitigating circumstances exist. But willfully logging into someone else’s account without their authorization from a government system is going to be a major uphill battle.
Attorneys would likely advise treating this as two separate incidents, and placing the greater emphasis on getting past the current criminal charges, and considering re-applying for a cleared position in the future. It appears the current IC clearance may still be flagged. And while DCSA’s favorable adjudication will not trickle up to impact the IC issues, a revocation of IC access would likely trickle down and impact the DCSA clearance eligibility.
In this case, it’s not a matter of two charges–it’s a matter of a single charge that still hasn’t been mitigated or addressed. The government holds its own to a higher standard. And in this case, for a current clearance holder to use their government device to hack into a former partner’s account is going to be an uphill battle toward favorability. The best advice is to consult both a criminal and security clearance attorney. It’s not double jeopardy. But when faced with criminal and clearance issues, it’s definitely double trouble.
Much about the clearance process resembles the Pirate’s Code: “more what you’d call guidelines than actual rules.” For this reason, we maintain ClearanceJobsBlog.com – a forum where clearance seekers can ask the cleared community for advice on their specific security concerns. Ask CJ explores questions posed on the ClearanceJobs Blog forum, emails received, and comments from this site. This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
