Top Ten Security Clearance Issues and Problems that I See in my Law Practice

I grew up watching David Letterman.  In addition to Chris Elliot (see the movie “Cabin Boy” if you haven’t done so!) and Larry “Bud” Melman, I was also a  big fan of his top 10 list. Currently, I know a lot of people follow the daily lists that are published by Buzzfeed. I decided to come up with my own top 10 security clearance issues and problems list that I see my clients have on a fairly regular basis with regard to their respective clearances. This is from my experience of handling all aspects of security clearance cases for many years.   Of course, every situation and fact pattern for each individual is unique and different so please use this for informational purposes only and rely on your own best judgment and that of an attorney of your choosing to explore the very specific facts of your situation before you take any action.

1. Many people who have clearances or who want to get clearances have worries about their situation. Do not discuss your concerns with anyone!  In harsher terms, I will also say to please keep your mouth shut!  Sharing worries or concerns with anyone will make it seem like a bigger deal than, in all probability, it is and may give the people around you concern for your background and your potential access to classified material. If you must share your concerns with anyone, do so with a qualified attorney of your choosing who has experience in this area of the law and where the attorney-client privilege is in place and no one knows what you discussed other than you and  your attorney.   In a pinch, you may want to talk to a facility security officer (FSO) but I even advise against that since that may put the FSO under an obligation to make an incident report in the Joint Personnel Adjudications System (JPAS) and document what you said. You don’t want anything negative noted in your JPAS record!
2. Make sure you always complete the SF 86 timely through the eQuip system when told to do so.   I have seen a number of people not get around to it in time and then their clearance is officially suspended and, in most cases, they will then lose their job due to a loss of clearance jurisdiction.  If that happens, you may not be able to get your job back for a long time, if ever.  Complete the SF 86 when told to do so and don’t delay!
3. When filling out the SF 86, be exact and thorough. Practice and re-write the answers to any questions that trouble you so that they are perfect.  Be very thorough and provide detailed and long explanations where allowed to do so in the face of any question that troubles you.
4. Like a hard test, make sure to read and then re-read every question on the SF 86 before you answer them.
5. Make sure you know if the question is asking for a response that covers “the last 7 years,” the last 10 years,” or “EVER.” DO NOT make a mistake here or the consequences to your clearance can be severe, to include the denial or revocation of the clearance itself.  Answer the SF 86 exactly and know how and why you answered a troubling question the way that you did.
6. While holding a clearance, make sure to self-report anything that happens to you (e.g., a DUI, drug charge, public intoxication charge, domestic violence charge, a bankruptcy filing – ANYTHING negative that happens to you!) to your FSO. Do it by email.  Practice your email and make sure it is perfect with a detailed explanation of what happened and what you are doing to make sure it is not a problem in the future.  DO NOT discuss it with anyone else.   See number 1 above.  Only send a courteous and detailed email to your FSO and then, as it says in number 1, please keep your mouth shut!
7. ALWAYS ALWAYS ALWAYS timely file your tax returns.  And, by this, I mean both your federal and state tax returns.  I don’t care if you owe the taxing authorities or not, please make sure you file your returns on time for both federal and state taxing authorities for each and every year.  In fact, this is so important to a clearance that, if anyone reading this has not filed all of their returns for the past years, I encourage you to stop reading now and get this done before the day is out.  MAKE SURE ALL TAX RETURNS TO BOTH THE IRS AND YOUR STATE TAXING AUTHORITY AND ANY OTHER ENTITY THAT REQUIRES A RETURN FROM YOU IS TIMELY FILED!!!  I can’t stress this enough.  If not timely filed, GET THEM DONE AND FILED NOW!  You stand a good chance of losing your clearance or being denied a clearance if you haven’t done so!   If you owe the IRS or the state any money, work out a WRITTEN payment plan that you absolutely commit to and follow through on so that you can provide perfect proof of a payment to the government if your clearance is called into question.  Also, see number 10 below for a bankruptcy filing that pays back in full ALL of the back tax debt to the IRS and the state (and any other creditors).
8. If you get any type of alcohol charge against you and you have a clearance or are applying for a job that requires one, please address your usage of alcohol. Even with one alcohol related charge in a lifetime, based upon my experience, I would like to see behavior that is absolutely sober and includes committed and regular Alcoholics Anonymous (AA)  I am seeing a lot of movement by the government for revoking or denying a clearance for just one alcohol related incident in a lifetime. If there is more than one alcohol related incident in a lifetime, then this advice, for what it is worth, is absolutely mandatory from my perspective.  Failure to live a sober life AND commit to regular and consistent AA attendance will, in most likelihood, result in the denial and/or revocation of a security clearance.
9. If you have any type of drug issue, both while holding a clearance or before, you must become drug free. In-patient treatment is strongly preferred if there has been a drug problem and, at a minimum, a person must attend outpatient treatment and also use other aftercare requirements such as AA or Narcotics Anonymous (NA).   A person who has had a drug problem in the past can get a security clearance but it is absolutely critical that they live a subsequent sober life and also do everything they can to make sure there is no relapse.
10. Financial issues are one of the biggest concerns to the government when it is granting an initial clearance or considering revoking one.   Get your credit reports, all three of them, from AnnualCreditReport.com    You should do this before you start answering the detailed financial questions in your SF 86.   If you have outstanding debts that are in collection, late, or if you are being sued on them,, etc., you must have a plan worked out with the creditor(s). It is not good enough for the government to say that you will simply work out a payment plan. You have to have an actual WRITTEN payment plan worked out that you can submit in writing that shows that you and the creditor or creditors which you are having problems with agree. It is also acceptable to file a bankruptcy if done so  properly. Discuss your situation with a competent bankruptcy lawyer as to what type of bankruptcy you should file and how it should look. In a nutshell, if you can do it, I always recommend filing a chapter 13 bankruptcy plan where all of the debts are paid back in full, 100%.   That is the best possible outcome for a clearance where debts are delinquent and an issue for the person applying for the clearance. Depending upon the circumstances, you can explore paying back less or a chapter 7 straight bankruptcy but I would be very wary of these options. This also applies if there is more than one bankruptcy in a lifetime. If there is more than one bankruptcy in a lifetime, then I absolutely advise a person to file a 100% Chapter 13 bankruptcy plan where all the debts are paid back in full. Again, if you have debts and they are delinquent and you are getting collection calls and letters, then discuss your situation with a competent bankruptcy lawyer who can evaluate your situation in light of your clearance concerns.
11. This is our bonus to the list, really making it a top 11 list! If you get to the point where the government is moving to revoke or deny your clearance, make sure you appeal the revocation or denial and ALWAYS REQUEST A HEARING BEFORE AN ADMINISTRATIVE JUDGE! This is your single best shot to fight for your clearance and explain why the government’s concerns are not worthy of a clearance denial or revocation. You will have a hearing in your locality before an administrative law judge (ALJ) from the Department of Hearings and Appeals (DOHA).   You have the option to appear at the hearing by yourself, with any third party of your choosing or a lawyer retained by you.   If the clearance is important to you, do not go to the hearing alone. From my experience, most people that do so ultimately have their clearance denied or revoked.    I recommend that you hire an experienced and competent attorney who practices in this area if the clearance is important to you. If you are unable to hire a lawyer then, at an absolute minimum, bring in a third party whom you trust to speak on your behalf.

Please feel free to contact me, by phone or email, if you would like to discuss any concerns that you have regarding your clearance.  My goal is to put security clearance issues and concerns that you may have to rest at the earliest and lowest possible level.

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