How Does the Security Clearance Revocation Appeals Process Work
Clients are often confused about the security clearance suspension and revocation process; as well as the due process rights they are afforded . The following article discusses the basics of the clearance revocation and appeals process.
BackgroundA recent report by the Congressional Research Office found that there are around 4.3 million people in the United States with a security clearance. Of those, about 2.9 million have a classified or secret level of clearance and around 1.4 million have a clearance at the top secret level.
The depth and breadth of investigations required for clearance determinations vary based on the level of risk, position sensitivity, and access requirements. After completion of these investigations and the granting of a clearance, periodic reinvestigations are required to maintain the clearance. The current reinvestigation cycles are every five years for top secret clearance or access to sensitive compartmented information; every ten years for secret clearance; and every fifteen years for a confidential clearance.
Adjudicative GuidelinesIn determining security clearance eligibility, investigators provide a balanced assessment of an applicant's positive qualities as well as potentially disqualifying behaviors to create a whole person concept. Investigators do this by considering and evaluating the application on 13 adjudicative guidelines. These guidelines are :
(1) Guideline A: Allegiance to the United States
(2) Guideline B: Foreign Influence
(3) Guideline C: Foreign Preference
(4) Guideline D: Sexual Behavior
(5) Guideline E: Personal Conduct
(6) Guideline F: Financial Considerations
(7) Guideline G: Alcohol Consumption
(8) Guideline H: Drug Involvement
(9) Guideline I: Psychological Conditions
(10) Guideline J: Criminal Conduct
(11) Guideline K: Handling Protected Information
(12) Guideline L: Outside Activities
(13) Guideline M: Use of Information Technology Systems
Fitness to maintain a clearance is continuously evaluated against these guidelines and it can be suspended or revoked at any time.
Controlling RegulationsThe controlling regulations for assigning responsibilities and for establishing procedures for personnel security actions are the DOD MANUAL 5200.02 PROCEDURES FOR THE DOD PERSONNEL SECURITY PROGRAM (PSP) and DoD Directive 5220.6 Defense Industrial Personnel Security Clearance Review Program.
Key Players in the ProcessBefore outlining the process for appealing a clearance decision, it is important to understand the players involved security clearance process.
Security Management Officer. This is the individual responsible for local administration and oversight of the personnel security program and serves as a liaison between the commander and the Department of Defense Consolidated Adjudications Facility.
Department of Defense Consolidated Adjudications Facility (DODCAF). DODCAF is the sole authority to determine the security clearance eligibility for non-Intelligence Agency DoD personnel in sensitive positions or requiring access to classified material. Previously, each service Department had its own Consolidated Adjudications Facility such as the Department of the Navy Consolidated Facility or the Army Consolidated facility and so on. However, in 2012 the decision was made to combine the facilities in order to improve efficiency and ensure the same standards were applied across the DoD. DODCAF is located at Fort Meade Maryland.
Personnel Security Appeals Board (PSAB). The PSAB is a three member panel that renders final decisions when unfavorable national security determinations are appealed. Each DoD Component has its own PSAB. Each three member PSAB consists of a President (with a rank of at least O6 of GS-15) and two members (with a rank of at least O5 or GS-14). In addition, at least one member of the board must be equivalent or senior in rank to the appellant.
Defense Office of Hearings and Appeals (DOHA). DOHA provides an appellant the opportunity to present a case in person to an administrative judge who then forwards a recommendation to the appropriate PSAB.
Now that we understand the key role players in the process, let's discuss the typical timeline for how these types of cases typically proceed.
Notification and ResponseFirst, there is typically some type of incident that gains the attention of the security management officer. An incident is anything that may bring into question a person's trustworthiness, honesty, or loyalty. This may be an allegation of criminal misconduct, the mishandling of classified information, or anything else related to the 13 adjudicative guidelines mentioned earlier. Upon discovery of the incident, the security manager inputs the derogatory information into a program called JPAS, the Joint Personnel Adjudication System. Once DODCAF reviews the derogatory information in JPAS, they have 15 days to make an initial determination to suspend clearance eligibility or not. In the interim, the commander or adjudicative authority authorized to suspend access to classified information will make a determination of whether or not to suspend access.
If DODCAF determines that the clearance eligibility should be suspended they are required to notify the individual in writing that their eligibility is suspended and include a brief statement of the reason(s) for the suspension of eligibility. This letter is called a Letter of Intent (LOI) and includes information about an individual's right to an attorney, right to request and review certain documents considered in making the unfavorable determination, right to respond, and suggestions for doing so. Accompanying the Letter of Intent, a written Statement of Reasons (SOR) must provide a comprehensive and detailed explanation for the basis of the unfavorable security eligibility determination. The individual must notify the adjudication facility in writing within 10 calendar days of receipt of the LOI and SOR whether he or she intends to reply to the LOI and SOR. If the election to reply is made, the individual has 30 days to submit a written response and a 30 day extension may be granted.
During this 30 to 60 day period, it is important for the individual to draft a response which clearly mitigates the basis described in the Statement of Reasons. Since time is of the essence in these types of cases, I recommend that individuals consult with or retain a security clearance attorney as early in this process as possible.
DODCAF ReviewWithin 60 days of submission of the response by the individual, DODCAF reviews the response and makes a determination as to whether the individual provided sufficient information to mitigate the derogatory information. If DODCAF renders an unfavorable determination, it provides the individual (via the appropriate Component or command security office) a written Letter of Denial (LOD - for those applying for a clearance) or Letter of Revocation (LOR -for those who already had a clearance). This LOD or LOR states the final determination of each adjudicative guideline previously provided to the individual and the reason(s) for denying or revoking national security eligibility. In addition, the LOD/LOR includes information on how to appeal an unfavorable determination.
AppealWithin 10 days of receipt of the LOD/LOR, the individual must return the Notice of Intent to Appeal (NOIA), stating whether the individual does or does not intend to appeal. If the decision to appeal is made, the individual has two options to do so. The individual may file a written appeal directly to the PSAB or may request a personal appearance before the DOHA.
Appeal to PSAB. If electing a written appeal to PSAB, the individual has 30 days from receipt of LOD/LOR to write to the applicable DoD Component PSAB stating reasons why the denial or revocation should be overturned and provide any additional relevant information that may have a bearing on the case. This submission must be routed via the individual's security management office.
Appeal to DOHA. If electing personal appearance before the DOHA, a hearing before an administrative judge is typically scheduled within 30 days of the request. At this hearing, appellants may be represented by an attorney at their own expense, make oral presentations, respond to questions posed by counsel, and present evidence and witness testimony. The DOHA judge conducts a de novo review of the unmitigated adjudicative guideline issues stated in the LOD or LOR. Generally within 30 calendar days of the close of the record, the DOHA judge provides written recommendations to the PSAB to sustain or overturn the denial or revocation. These recommendations are not binding on the PSAB.
Final Determination by PSABWhether reviewing the written appeal submitted directly to them by the appellant or considering the recommendation from the administrative judge, PSAB has the final decision authority. PSAB typically makes the final decision within 45 days of receipt of the written appeal or within 30 days of receipt of the DOHA administrative judge recommendation. PSAB delivers the final decision to the appellant via the appellant's security management office. The written decision reinstates the clearance or identifies each adjudicative guideline issue that remains unmitigated and the rationale for the final disposition of the appeal. DODCAF updates JPAS to reflect the final decision.
At this point there are no further administrative means to appeal. Commanders may request reconsideration of unfavorable national security determinations for individuals within their command to address specific mission needs after the passage of 1 year following a denial or revocation.
Final ThoughtsThe revocation process is swift and the consequences are severe. If you find yourself in a situation where your clearance eligibility is in peril, it is important that you get expert assistance from an attorney experienced in security clearance cases. DODCAF, PSABs, and DOHAs are looking for specific mitigating factors for each adjudicative guideline. Hiring an attorney familiar with this process can dramatically increase your chances of keeping your clearance and your job.
I hope this article increased your understanding of the security clearance review and revocation process. Thank you for your attention and for your service to our country.