Security Clearance Denial

Domestic Violence, Debt Easy Path to Security Clearance Denial

In a previous post, “Online Dating Sites, Sextortion, and Your Clearance”, I covered the pitfalls and potential for blackmail for clearance holders while using online dating sites. In a similar scenario, a recent Department of Energy contractor lost his security clearance  when a woman for whom he was providing financial assistance to and was romantically involved with took pictures of him in a compromising sexual situation and then threatened him with blackmail. This is one of the more interesting cases I have seen in quite a while, so happy reading!

The Local Security Office became aware of some personal conduct issues with this contractor, suspended his clearance, and then had him come in for an interview to obtain more information. The ensuing interview kicked off a referral to a psychiatrist, where even more concerning information was revealed. This resulted in a formal Letter of Notification (LON) to the individual proposing clearance revocation, citing specific concerns under Guidelines: E (Personal Conduct, I (Psychological Conditions), and J (Criminal Conduct). From what I could piece together on the case, this contractor had anger issues and during his previous marriage to his ex-spouse in 2009 he was arrested and charged for domestic violence related offenses. These anger issues also manifested themselves during a 2015 road rage incident in which he threatened another driver with a tire iron and was subsequently arrested for drunk and disorderly.

In 2015 he met a waitress (half his age) at a local restaurant and started helping her out financially to get her through some lean times. After she lost her job at the restaurant he “hired” her to run errands, and eventually the relationship turned sexual. At one point he allowed her to tie him up naked in a chair and she took pictures, which she subsequently sent to him via text messages threatening to make them public unless he gave her more money. He contacted the local police and filed a complaint against her and got her arrested, then ended up giving her more money to pay her rent because “he “couldn’t live without her”. To add another twist to this story, he was already $60k in debt on his credit cards when all of this transpired. The DOE psychiatrist provided testimony that the individual had impaired judgement in several areas of his life and that he viewed himself as the girlfriend’s “savior”.

The DOE Office of Appeals Judge was not sympathetic to his claims of just trying to be a good Samaritan by helping the girlfriend out, especially when, as a current clearance holder, he didn’t report any of this information to his employer as required. Additionally, there were many discrepancies between this individual’s version of the circumstances and events that led to all of these troubles, versus what other sources and witnesses conveyed. Needless to say, none of the issues cited in the LON were mitigated and his clearance was revoked. Go to this link if you want to read the entire case summary.

Discussion

  1. It should not impact suitability for public trust if as you say, it was dropped, dismissed, or you were found not guilty.

  2. That was not the question. Of course if it is required to disclose based on the questions on the SF-85P regardless of disposition, then he should do so.

  3. Interesting, the SF-85p, unlike the SF-86, does not have specific language requiring the disclosure of expunged charges. Can you shed any light on this, @Marko ?

  4. It asks if you have been arrested in the last 7 years. Regardless of final disposition, if you were arrested it is required to disclose that information.

  5. You have to look at the SF85P form date, versus the most recent SF 86 form date, to understand why the much older SF85P forms are not as specific as the SF 86. BTW, the SF85 forms have been updated and you will be asked questions (and time frames) very similar to the SF86 in the future…

    Marko is right, when the form asks for arrests, and such, the expectation is not to have hairs split or word games played.

  6. In regards to the 85p ONLY: it’s difficult to establish intent for a material falsification case on the non-disclosure of a dismissed/expunged record. The government has to prove that the applicant intended to deceive - not only is that hard to prove when the applicant went through the expungement process on a dismissed charge but now couple that with the fact that the applicant can claim advice of counsel as a defense and the fact that the 86 explicitly asks for expunged records; whereas the 85p does not. As I said before, one can reasonable conclude, based on the difference in the wording on the forms that the 86 wants expunged records and that the 85p does not. I’ve read a couple cases where an administrative judge tossed potential revocations on these grounds ( I’ll link if you guys want, hard to do on cell at the moment).

    As for the 86, that form directly states to include expunged records. No defending a non-disclosure of an expunged record there…

    On a side note, when discussing this with a professional contact of mine (contract investigator), he told me that expunged records are not used when considering suitability or clearance. This guy has been in the business a while and has no reason to lie to me so I trust his statement…

    Regardless, to anyone reading this that is going through a suitability/clearance investigation or filling out the paper work - take @Marko ‘s advice and disclose it on both the 85p and 86. Odds are if it was expunged, that will be viewed as a good thing by an adjudicator and it will likely not even be developed as an issue.

  7. Here’s a good one to hammer home my points: http://ogc.osd.mil/doha/industrial/02-13375.h1.html

    And: http://ogc.osd.mil/doha/industrial/05-11195.h1.html

    Interesting: https://news.clearancejobs.com/2013/08/11/what-is-the-difference-between-a-public-trust-position-and-position-of-trust-clearance-qa/

    This document is also important to our topic. In the content, the government states, “Additionally, individuals can be charged with an arrest when they are not present or they may believe a conviction was reduced or expunged”. The governments statement in this document is made in regards to establishing intent to a material falsification allegation. Use the find tool and search “expunged” to find the paragraph. https://www.oig.dhs.gov/assets/Mgmt/OIG_07-67_Aug07.pdf

  8. 2002 is a pretty old reference.

    I am leaving this thread. Just beware that the security clearance and federal employment is not a criminal process but a civil process. You might win the “shoulda” part of your case but lose the “employable” part.

    Also, the SF86 and SF85 series are difficult to change because they do not belong to one agency. Read up on how long it took to make the recent minor changes to the SF 86.

  9. Since I addressed your general statement, I’ll decline to get into a tit-for-tat with you on the specifics.

    Enough to say that SCOTUS often revisits cases periodically and either affirms for reverses prior rulings. In addition, an appellate court ruling can stand for years as a precedent before being reversed by a higher court.

    Precedent is also ONLY precedent. It is NOT law.

  10. Just a note to close this topic, from an adjudicator’s point of view expunged records can be considered if the conduct that led to the charge actually occured and there is more recent similar conduct. Many times prosecutors and judges want to clear the caseload and accept plea deals and such. Clearance adjudiction is not constrained by criminal prosecution standards, but rather gauge the probablity of the whether the conduct actually happened along with mitigating factors.