Although, Criminal Conduct is always a security/suitability concern; it becomes a potentially disqualifying condition under the Adjudicative Guidelines when it involves:
“(a) A single serious crime (felony) or multiple lesser offenses (infractions or misdemeanors). ”
“(b) Discharge or dismissal from the Armed Forces under dishonorable conditions.”
“(c) Allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.”
“(d) Individual is currently on parole or probation.”
“(e) Violation of parole or probation, or failure to complete a court-mandated rehabilitation program.”
“(f) Convicted in any court of the United States of a crime, sentenced to imprisonment for a term exceeding 1 year, and incarcerated as a result of that sentence for not less than 1 year.”
MITIGATING SECURITY CONCERNS
The following conditions may mitigate Criminal Conduct concerns:
Multiple Lesser Offenses Not Serious
Multiple minor traffic infractions without allegations of other criminal conduct would not be an issue under the Criminal Conduct criterion. However, they can be considered under the Personal Conduct criterion along with any other dishonest, unreliable, or rule-breaking behavior.
Alleged Crime Not Committed
Security clearance adjudications do not use the same standard of evidence used in criminal proceedings. Once the government has substantial evidence that the applicant committed a crime, the burden of proof shifts to the applicant to present evidence to refute the allegation. To propound this mitigating condition there must be proof that the applicant did not commit the alleged offense. Being accused but not arrest, arrested but not prosecuted, or prosecuted but found not guilty, many not be sufficient proof of innocence, if there was insufficient evidence to meet the criminal standard to prove guilt or a technical/procedural error was made that prevented a successful criminal prosecution.
Successful Rehabilitation
Evidence of rehabilitation can simply be “passage of time” without recurrence of criminal activity or any other indicators of continued antisocial, irresponsible or violent behavior. There is no general rule for how much time must elapse since the last criminal offense for full mitigation solely through “passage of time.” The amount of time depends on age when the crime occurred, how long criminal activity continued, the number and seriousness of the crimes, and the circumstances surrounding the crimes. Positive evidence of rehabilitation can significantly reduce the amount of time necessary to fully mitigate criminal conduct. Such evidence includes, “remorse or restitution, job training or higher education, good employment record, or constructive community involvement.” Also taken into consideration are other positive changes in lifestyle, associates, and social responsibility. These factors can positively influence an adjudicator’s determination that an applicant’s past conduct is not likely to recur or no longer cast any doubt on the applicant’s judgment, reliability or trustworthiness. Knowingly and willfully providing false information for a security clearance investigation and “currently being on parole or probation” are very difficult to mitigated, because there as been too little time to show rehabilitation.
Isolated Incident or Unique Circumstance
Many people commit a single non-violent criminal act due to an impulsive decision or an uncharacteristic lapse of judgment. Such crimes are sometimes prompted by a transitory situation. The presence of extenuating circumstances and/or a record of otherwise consistent reliability, trustworthiness, and good judgment over an significant period of time can mitigate suitability/security concerns by showing criminal conduct is not likely to recur, even though the crime may have occurred recently.
Pressured or Coerced
A single serious crime can be fully mitigated, if an applicant committed the crime due to threat of harm to himself or his family or other similar forms of duress. It is unlikely that this mitigating condition would be applicable to multiple criminal acts over a period of time, such as during a period of gang membership, unless it is propounded in combination with “successful rehabilitation.” It would also not be applicable when the threat of harm or duress occurred as reprisal for some breech of promise or misconduct by the applicant.
INTERIM CLEARANCES
Interim clearances can be declined when any potentially disqualifying issue exists. Significant criminal conduct on the SF86 can often be mitigated by information collected during a security clearance investigation. But interim clearances require issue mitigation before the investigation is completed. The SF86 asks about criminal conduct, but it does not ask for information that might mitigate the related security or suitability concerns. Applicants may include mitigating information in their SF86 (or its electronic equivalent known as eQIP) by using the “Continuation Space” at the end of the paper version or by using the “Comment Section” following each question on the eQIP version. Including any applicable mitigating information in this manner can only help an applicant’s chances of being granted an interim clearance.
I was arrested for solicitation of prostitution in 1995, plead not guilty, was let off with the ability to expunge in a year.
I went for a secret clearance in 1998 and during the interview admitted to seeing a prostitute 3-4 times after the arrest. Was thus denied, but I appealed and was denied again.
I'm wondering if I would be eligible for secret or TS clearance now. No offenses since then, and I've been married for 10 years and have kids.
Saul (San Jose) on September 30, 2011 at 10:17am
I WAS ARRESTED FEW YEARS BACK FOR CONTROLLED SUBSTANCE WITH ATTEND TO SELL HAD 3 FELONYS ANS 3 MISDEMENORS . TO MAKE LONG STORY SHORT AT THE END I WASNT FOUND GUILTY OF THE DRUG AND FELONY WAS DROPPED AND GOT STUCK JUST WITH A MISDEMEANOR .SO ILL LIKE TO KNO CAN I GET MY SECURITY LICENCE ???
LUIS A . DURANT (BRONX NY) on September 15, 2011 at 12:16am
Can you get a secret clearance for having a deferred (now expunged) domestic abuse charge from almost 6 years ago?
Thank you for your help.
RO.1 (CO) on August 15, 2011 at 5:39pm
Jon (CO): Report the matter to your FSO. Just tell him/her what is in police report and court record. Decline to provide any further information at this point.
William Henderson on June 7, 2011 at 7:06pm
I have held a Top Secret Clearance with SCI and CI poly since January 2006. The poly was added in 2009. On 3/28/2011 I was arrested for carrying a pistol without a license in the District of Columbia. The weapon was found in my glove compartment after the police searched my vehicle after a minor trafic accident without my permission. I was held for four days. I was eventually indicted for three felonies related to license, registration and ammuniton charges related to the weapn. I bought the weapon legally in VA.
At the time I was working for a subcontractor and I reported the incident to them. Subsequently I was contacted by the primary contractors FSO and told they would would be dealing with both the government FSO and myself directly. I was told not to go back to work. On May 26 I found out the government is willing to offer me a misdemeanor plea deal. WhichI'm inclined to accept to avoid risking conviction of a felony at trial with my court appointed attorney. All this occurred in the midst ofmy five year PR.
From my understanding of your articles all this means there was probably an investigation started when the contractor reported the incident. The government has not communicated anything to me or the contractor FSO. Is that normal? Is there anyway for me to confirm the existence/status of the investigation?
Also it seems that if I plead guilty to the misdemeanor it could be considered grounds for disqualification, but passage of time and isolated incident might also be considered mitigating circumstances. Do you agree?
Milton (VA) on June 4, 2011 at 3:29pm
Bill,
3 years go I was on unemployment. I took a contract position lasting 5 months, during that time I still received unemployment benefits for 5 weeks. At that time the state found me in overpayment and I was to repay them back. I appealed and they still found me in overpayment. That was 3 years ago (March 2008), and I never heard from them since. Until two months ago, I was formally charged with 3 felonies: theft, computer crime, and forgery. I had an arrest warrant out for me which I surrendered to. All are pending in the courts at this time. In July 2008 I was hired and obtained a security clearance and have worked for them since. No prior criminal history. Since these charges have come up, what do I do? I haven't yet told my FSO about these and I know I need to but I'm afraid to. What is the likely outcome of my clearance for being charged? I have been told by my lawyer do not discuss this case with anyone since this is an ongoing case as they can be subpoenaed by the state.
This was a completely lack of judgment mistake on my part. I really didn't know it was that serious and if I could go back in time to change it, I most certainly would. The situation was very bad that I was in at that time. I just don't know exactly what to do. I want to be honest and it is killing me with not being forthcoming as quickly as I should be.
Thanks for any advice.
Jon (CO) on April 2, 2011 at 12:06pm
Thank you I do hope this does not prevent me from getting a clearance, as I've never done anything outside the law since.
Don (PA) on February 28, 2011 at 3:11pm
Don (PA):
I believe you may be mistaken about either the No Contest plea or the dismissal of the charge. A no contest plea results in a conviction. The new SF86 that is being phased in starting this month has a new question under the “Police Record” section. It reads:
Have you EVER been convicted of an offense involving domestic violence or a crime of violence (such as battery or assault) against your child, dependent, cohabitant, spouse, former spouse, or someone with whom you share a child in common
I recommend you list the offense.
William Henderson on February 19, 2011 at 2:17am
As I am under consideration for a job requiring a secret clearance and my only concern comes from a 2002 arrest for Assault and Battery constituting domestic violence. After a few court appearances the charges were dismissed under a no contest plea agreement.
I have not had any further criminal behavior, but I wonder about the need to report this when I fill out the application for a clearance. I know that there is a 7 year clause, but would I be wise to report this anyway?
Don (PA) on February 15, 2011 at 12:14pm
I'm currently preparing for a full-scope poly. To the best of my knowledge, I've never done anything that would have got me arrested, but I'm nervous about a few things.
-Sex at work. I checked with a lawyer, and as long it is discrete, it's not technically a crime. But I'm still worried that I'll feel obligated to talk about it in order to calm down and pass the poly. (There's no possibility of coercion or anything from it and the last incident was six months ago).
-Viewing porn on a work laptop. Again, not actually a crime. Plus, my office has no internet usage agreement to sign. But I accidentally got a virus and it crashed the computer. Do I need to mention that in the "use of information technology systems" section? This happened in early 2008.
-Alcohol use. I've never had to go to counseling, but I drank pretty regularly (almost daily) up until this year. Rarely got drunk, but drank frequently. I never had any incidents (no DUIs or work problems or anything). But I recently found out that "tolerance" is not related to "blood alcohol content", so even though I've never driven when I was "drunk" and swerving around or anything, I can remember two times in the past few years when I thought I maybe should not have driven.
I'm not even sure if I need to bring these up. But if I do, are they going to be a big issue?
Thanks.
John (DC) on February 2, 2011 at 11:30am
Minda (Va):
It sounds like your getting things a little confused. There is a long involved process for revoking a security clearance, and I have never seen a clearance revoked for a single misdemeanor trespassing conviction unless there were serious aggravating factors. Furthermore, your company can not fight a clearance revocation; you have to appeal it.
I believe that your company correctly submitted an “incident report” regarding your criminal offense and the government adjudicative agency “suspended” your clearance until they have a chance to make a thorough review of the situation and decide what to do.
Normally in this type of situation, a follow up report is submitted by the company and the adjudicative agency reinstates the clearance with or without a warning. Sometimes a limited investigation is conducted into the incident and the adjudicator uses the investigation to decide whether to reinstate the clearance or issue a Letter of Intent (with a Statement of Reasons) to revoke the clearance.
See my article on Rebutting and Appealing Security Clearance Denials” for more information on this process. It is posted at http://www.clearancejobs.com/cleared-news/62/rebutting-and-appealing-security-clearance-denials
William Henderson on January 27, 2011 at 9:24pm
I was offered a position where a secret level security clearance is needed. I don't want to take the position if I won't get the clearance. With that said, I had a misdemeanor petty theft (alcohol related) back in 2002 which, to my understanding, I don't have to report since it was over 7 years ago. I'm also worried about a detention for public intoxication on New Year's Eve in 2007. I'm worried that the detention won't qualify as a successful rehabilitation.
JP (California) on January 26, 2011 at 9:42am
Have security clearance for 4 years now but had charged of trespassing, which is misdemeanor 5 months ago. Didn't plea guilty or not guilty was settled to no contest but the final judgement is still guilty in the court record. Not on probation and was cleared, but they still revoked my clearance. Could this be possible? No other criminal records aside from speeding tickets. Company is fighting for the case. Could this be resolved? Thank you.
Minda (Va) on January 22, 2011 at 8:04am
Sally (CO),
The short answer is that your incident 13 years ago should not adversely affect a clearance determination, as long as there are no other issues. Good luck.
Bill L. (Annapolis, MD) on October 19, 2010 at 12:01pm
I was charged with a felony and misdemeanor 13 years ago for theft (shoplifting at the age of 18). The felony charge was dropped in court and the misdemeanor was a withheld judgment. I was on probation for two years and eventually the case was dismissed. I have no other criminal history. I am applying for a job where I will need to obtain a security clearance at the Secret level. Will this incident hinder my chances at gaining clearance?
Sally (Boulder, CO) on October 13, 2010 at 12:34am
Anonymous,
Your friends are not your friends. Even if the police arrest does not show up in the FBI check, it may show up in other checks since you lived overseas for a time. Also the fact that you lost your clearance will show up in various databases. I recommend you be truthful and stay away from illegal substances. Good luck.
Bill L. (Annapolis, MD) on October 5, 2010 at 1:00pm
I am hoping you can answer a question. less than a year ago I was working for a defense contactor in the Bahamas an had a security clearance. I was arrested by the Bahamian police for possession of a dangerous drug (2 joints). I paid a fine, but lost my clearance.
My friends tell me not to delclare this when trying to get a new clearance, they say it will not show up, but i am worried that it will. Do you have any advise for me. Thanks
Anonymous on October 1, 2010 at 5:40pm
Anonymous:
I don’t know about the criteria for enlisting in the military, but it is possible to obtain a security clearance several years after involvement in the sales of CDS. See my article on Drug Involvement and Security Clearances (posted at http://www.clearancejobs.com/defense-news/79/drug-involvement-and-security-clearances) for information about “passage of time without recurrence” as a mitigating factor for drug involvement. Keep in mind the the length of times indicated in the article are only recommended minimums. Being found “not guilty” is not a mitigating factor, if you committed the offense.
William Henderson on September 23, 2010 at 2:58pm
Mr Henderson,
2 years ago I was arrested for possession with intent to distribute CDS but not convicted in court, however, there is evidence, in the form of a hand to hand with an undercover, that I was guilty of the crime. If I prove that I straightened my life out (avoiding drugs and people associated with drugs and obtaining a degree) and wait a few years, would it be possible to join the military and obtain a security clearance?
Anonymous on July 30, 2010 at 1:33pm
Tara (VA),
Once you have reported the information to your current FSO, you have done what you are required to do. It is up to your FSO to decide what and when to report the information in JPAS via an Incident Report. Once an Incident Report is entered in JPAS, your name appears in red and any FSO can see there is an issue. If you are truly interested in the new job, I suggest you be up-front with the new employer about the incident and the fact that you reported it to your current FSO. The new company may await your court results before deciding to hire you. Good luck.
Bill L. (Annapolis, MD) on July 20, 2010 at 7:53am
Hello I would like to say this is the most informative site that I have been to . It's nice to read the comment and know that other people are in a pretty similar situation and that I am not the only person that has made terrible mistakes but are trying to rectify and make better.
**Here is my question....who reports to JPAS. I let my FSO know about a pending court case (felony) but another company called me about a position. Is this something that my FSO reports or is it flagged beforehand. I am thinking of just telling the lady I am not interested in fear of this being up there already. Friday I go to court so hopefully this will end there since it is a bogus charge from someone lying.
Tara (VA) on July 13, 2010 at 11:33pm
The charge was endangering welfare of a child, the sting was set up in the US (New Jersey) and I was in Iraq, but I was charged when I got home. Thank you so much for the response. And yes I did complete the counseling and voluntarily submitted to a couple examinations to prove I'm not a weirdo, just somebody who bad a bad choice. I'm not too concerned about the interim my job said the final is the one that counts. Its still not even guaranteed I'd be let go if it is denied. Again, thank you for responding
Nick (NJ) on June 1, 2010 at 6:26pm
Nick (NJ):
It seems to me that this matter will be adjudicated under Guideline D (Sexual Behavior) rather than Guideline J (Criminal Conduct). I believe that 2 mitigating conditions may apply in your case:
b. the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or good judgment;
c. the behavior no longer serves as a basis for coercion, exploitation, or duress
Also important in your case is the fact that you voluntarily sought (and I hope successfully completed) counseling. Absent any other problems or aggravating factors, I think you have a reasonable chance of getting a secret clearance. It will take longer for you than for most applicants and there is a strong possibility you will not receive an interim clearance.
I’m somewhat confused. What was the actual charge against you; was it a violation of Iraqi law or US law; and who arrested you?
I wrote an article on Sexual Behavior and Security Clearances. It’s posted at http://www.clearancejobs.com/cleared-news/117/sexual-behavior-and-security-clearances
William Henderson on May 25, 2010 at 8:42pm
Mr Henderson
Thank you for answering all these questions, it says a lot about your character. I have a concern.
I have recently accepted a position as a fed contractor requiring a secret clearance. 5 years ago I was arrested in an internet sex sting for having an explicit conversation with a cop posing as a minor. I never arranged for a meeting, entered pre trial intervention and the charges were dropped after successful completion of the program. I was 25 at the time and in Iraq with another contractor. I have had no issues since then, voluntarily sought counseling, and I even take care of my 16 year old niece part time. I have also held 3 secret clearances as well in the past. The job does not have a lot of exposure to classified info. Do you think I have a chance at getting a clearance?
Nick (NJ) on May 24, 2010 at 8:25pm
Mr. Henderson,
I have had trouble finding information on the policies of police departments, as well as on state laws regarding reports. Do you happen to know the laws/policies in NY?
Thank you once again.
Ron ((PA)) on May 12, 2010 at 12:02pm
Ron (PA):
Investigators submit a name with secondary identifying information to a police department. It's up to the police department's policy (and state law) what information they will provide. They can provide any report that contains the individual's name (i.e. arrestee, detainee, suspect, victim, witness, person of interest) or they may only provide reports when the individual was actually arrested or referred to the prosecutor's office for criminal prosecution.
William Henderson on May 11, 2010 at 9:57pm
During a local agency check, are police departments asked about only arrests, tickets, etc.? Or does the investigation ask for records of ANY police contact with me?
Sorry if my question seems vague.
Thank you for any information you can offer.
Ron (PA) on May 10, 2010 at 5:43pm
Thanks for that clarification. I understand that the mere allegation of a crime may not warrant that, and that in most cases there is significant latitude of the U.S. government doing what most would reasonably consider the right thing.
It's these rare exceptions that highlight some of the challenges of this system and where justice isn't necessarily served even though its the best that we can do. Noted the DA for those Duke men thought that they had enough evidence. How about the Marines from Haditha whose lives will always be tarnished by the fact that they were "accused" and charges were dropped.
There are more poignant examples of security clearance issues than this concept:
Mr. "Huang" was given a security clearance in the Clinton White House. There was the White House Staffer, Marcea, in June of 1996 during the Clinton administration, who noted that they were merely updating a list of people who needed security clearances. In actuality, these FBI 300 files were of prominent republicans for whom the Clinton White House was targeting politically. How about Clinton Appointee Sandy Berger on the NSC who was a lobbyist for China prior to his appointment during an administration where the Chinese stole the plans to the WX-88 warhead. How about the entire history of the American nuclear bomb that was down loaded onto tape during the Clinton administration and was never recovered? How about the missing hard drive from the Los Alamos lab in the Clinton Administration and a slew of other security breaches where the effect of error and the clearance related issues, may have placed our country in grave danger?
Some of this technology in all probability has enabled China to help North Korea and Iran develop their nuclear weapons programs. How could this have been prevented? We are on the brink of war with a country that the current President says has a right to these same weapons even thought they want to wipe "Israel" off the map and 10,000 of their countrymen invaded Iraq behind the United States in the wake of the 2003 U.S. led invasion of Iraq.
Howard L. Salter (Indianapolis, IN) on June 2, 2009 at 7:06pm
Mr. Salter,
Did you read the paragraph in this article captioned, "Alleged Crime Not Committed" under the the section entitled, "Mitigating Security Concerns."
"the mere allegation of something" will never reduce a person's chance of getting a security clearance. There must be evidence that the applicant committed the crime, as well as indicators that the applicant may repeat his misconduct in the futiure.
William Henderson on April 12, 2009 at 12:19pm
"(c)Allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted."
While I believe that appearance can mean many things, including deception, the idea that we live in a country where the mere allegation of something can legally reduce a person's acccess to opportunities in the land of "opportunity," makes me wonder why we had a children's sufferage, a woman's sufferage and a racial sufferage movement in this country. All that pain for this kind of gain...
I can't help but think about those LaCrosse students from Duke university who were wrongfully charged and eventually justice was served in their legal process... but under the pretenses of this clause... would still be guilty of something they didn't do if they decided to work in a position that woudl try to stop those things from happening to others--requiring clearances. That is a sad day America.
How is that for impartial justice?
Howard L. Salter (Indianapolis, IN) on March 31, 2009 at 9:24am
