How Criminal Charges Can Jeopardize a Security Clearance

Of all the collateral consequences of a criminal arrest or conviction, one of the issues of greatest concern in the DC/Maryland/Northern Virginia area could be the effect of an arrest or conviction on a person’s security clearance.  After all, with many military personnel and defense contractors living in the area, there are many people here who require a security clearance in order to perform their jobs.  This is often one of the first questions clients ask of me:  How is this going to affect my clearance?

Any type of government or government-contract job that involves access to classified information requires a security clearance. There are three levels of clearance:  confidential, secret and top secret.  Top secret classifications are further divided into sensitive compartmentalized information (SCI) and single scope background investigation (SSBI).

People are concerned about having a clearance either granted or renewed.  In addition to periodic random re-investigations for many personnel, top secret clearances are reviewed every 5 years, secret clearances every 10 years and confidential clearances every 15 years.

Three groups of people are categorically precluded from being granted a clearance:  addicts or unlawful users of controlled substances, people deemed mentally incompetent, and former members of the military who have been dishonorably discharged.  Otherwise, people are evaluated on the basis of honesty, trustworthiness, loyalty, financial responsibility and reliability.

This means that a simple arrest and even a criminal conviction will not automatically disqualify a person for a clearance.  At the same time, such a criminal history could prove problematic, especially if combined with other factors that reflect poorly on the person’s background and character.  Examiners might look particularly harshly at felony crimes and crimes involving dishonesty (e.g., theft, embezzlement) or substance abuse (e.g., driving while intoxicated, possession of controlled substances).  They might also be concerned about crimes that could open the person to blackmail (e.g., solicitation of a prostitute).

Consistent with basic due process protections, people whose security clearance is denied or revoked do have the right to appeal.  An appeal usually involves a hearing at which the person is given the opportunity to contest the adverse decision and ask for reconsideration.  A review of recent adjudications shows that the committee will forgive a broad range of sins provided the person actively demonstrates a willingness to take responsibility and/or compensate.  The Defense Office of Hearings and Appeals, which handles most of the appeals, is also much more interested in a person’s honesty today than in some error in judgment the person made many years ago.

People holding security clearances are required to report to their facility security officer (FSO) any development that could adversely affect that clearance.  Failure to report such an arrest or conviction — while perhaps not fatal to an application — could seriously affect the granting or renewal of a clearance.