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Criminal Conduct and Your Security Clearance

So you’ve recently been charged, cited, or arrested for some type of criminal conduct, and you’re wondering whether or how it will affect your security clearance. The answer: It depends.

First, you should be aware that you have a duty to report certain offenses to your facility security officer (FSO), regardless of whether or not you are up for your security clearance renewal. You must report offenses that ordinarily would be required to be listed on the SF86. The SF86 Questionnaire requires that you list the following:

1. Issuances of tickets, citations, or summons to appear in court in a criminal proceeding against you (other than traffic infractions where the fine was less than $300 and did not involve alcohol or drugs);
2. Arrests by any police officer, sheriff, marshal, or any other type of law enforcement officer;
3. Charges, sentences, or convictions of any crime in court;
4. Probations or parole; and
5. Currently on trial or awaiting trial on criminal charges.

Once you report the incident to your FSO he or she will submit this information to the agency. Depending on the issue the agency may request additional information from you, may conduct its own independent investigation, or may issue a Letter of Intent to Suspend or Revoke your security clearance.

Agency Evaluation

The agency will first have to evaluate the seriousness of the offense. Examples of serious offenses are those involving a felony, alcohol or drugs. The agency will likely wait for a court’s disposition before rendering a decision on your security clearance. If a court finds you guilty of the offense, there is a strong likelihood that the agency will issue you a proposal to suspend or revoke your clearance.

If that occurs, you will have the opportunity to provide mitigating arguments as to why any concerns surrounding this incident have been mitigated. If this is your first criminal offense you have a stronger likelihood of being successful in retaining your clearance. Additionally the agency will take into consideration the circumstances surrounding the incident to determine if your conduct brings strong question as to your overall judgment and responsibility.

If the offense is of a less serious nature, the agency will likely again wait for a court’s disposition before rendering a decision on your clearance. The agency will then review your background to determine if your record reflects prior issues of criminal conduct involving lesser offenses. Multiple lesser offenses would constitute sufficient grounds for an agency to question your continued eligibility for a security clearance as the agency will likely conclude that you have a pattern of inability to abide by laws. A pattern of inability to abide by laws will likely result in the agency making a determination that you do not exercise good judgment and cannot be trusted with classified information.

Mitigate the Agency’s Concerns

So how do you mitigate the agency’s concerns regarding your criminal conduct? First you want to be able to show how or why your involvement in the conduct was an isolated event and not likely to recur. Second, you want to be able to show that you have been rehabilitated as evidenced by remorse, restitution or community involvement. Third, if you were pressured or coerced into committing the act, you want to be able to show that those pressures are no longer present in your life.

In summary, involvement in criminal conduct will not necessarily result in a suspension or revocation of your security clearance. Providing the agency with sufficient information to mitigate the agency’s concerns can help you continue to maintain your clearance.

Greg Rinckey, Esq. is the Managing Partner of Tully Rinckey PLLC, one of the largest federal sector employment law firms in the country. Mr. Rinckey is a recognized leader in the military and federal employment law sectors. Nicole Smith, Esq., a Tully Rinckey PLLC Associate, represents government employees and contractors in a wide range of security clearance matters, to include providing security clearance application assistance and working with clients going through appeals processes for denials, revocations and suspensions. Ms. Smith spent nine years as a national security background investigator.