Concerns about TS clearance renewal

SECURITY CLEARANCE Q&A
1

Hello,

I currently hold a TS/SCI security clearance at a civilian federal department of six years. I am currently up for re-investigation and I have concerns about my background being a bar or revocation of my security clearance adjudications. Here are a summary of my charges from the past:

  • (Before I joined the government): February 2008, while I was a college student, I had an altercation with my roommate. I went to court on 1st Degree Assault and Battery (Class 1 Misdemeanor) against my roommate, but the charges were dropped and expunged from my record. It was ruled self-defense, and it was as he attacked me first, but he went to court against me.
  • January 2012, went to civil court where an ex-girlfriend of mine filed a civil protective order against me. The first hearing the judge granted it, I then appealed. The motion was rescinded in circuit court because it was not enough evidence to show any violence, and I expunged the record. The ex-girlfriend was being vindictive as we had a very sour relationship.

***Upgraded my S clearance to a TS clearance in March 2012. The investigation was aware of the prior incidents before granting me the clearance. ***

  • January 2014, went to court on ‘attempted theft’ (common law) and 2nd degree assault (misdemeanor) and was found guilty over a very unfortunate lapse in judgement. Filed an appeal and the attempted theft charge was dropped, but the second degree assault charge was granted a probation before judgement. My 1-year unsupervised probation was completed in 2015 and I still have a year to expunge my record in total. A PBJ means no conviction, but I am aware I must report this anyway, and so I did on the SF-86.

As I am currently up for re-investigation, what are the chances of:

  1. Renewing my TS security clearance;

  2. Receiving suitability at my federal agency;

  3. The last incident that happened three years ago (2014), would that be enough time to be recognized as ‘passage of time’ as I have no other criminal activity after this incident;

  4. Could the 2014 incident be seen as an ‘isolated incident’ given that the person was not anyone I knew previously or currently?;

  5. How will mitigating factors be looked upon?

I will note that since the 2014 incident, I have made major steps to rehabilitate myself professionally, which I would assume are mitigating factors: received job promotions, awards, job training, received my masters degree, received a county award, have done much community service in my area and have good performance evaluations. Could all of this be mitigated and allow me to renew my clearance?

Thanks
Ramza

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2

Based on what you have presented, an adjudicator could go either way. The whole person is looked at, not just the adverse stuff, but you should be prepared to answer some questions about the pattern of conduct over the years, Regardless of the court dispositions or expungements, adjudicators look at the conduct that led to the incident and whether there is reasonable evidence that you committed them. Your position, agency, and other factors will play into it as well.

3

Marko,

Thank you for the quick response. The position involves an overseas assignment doing policy work.

Could you please explain what constitutes as “reasonable evidence”? I am aware that courts and adjudicators use different methods of evidence collection; courts use the “beyond reasonable doubt” method, whereas the adjudicators use other forms or preponderance of evidence. Each of these cases were all hearsay, and obviously evidence that I committed the acts would have been sorted out in court if the judge ruled that way. None of these resulted in an arrest and beyond the short interview I had with investigators about the incidents, I am curious where they would get additional information on the case; the victims? In two cases, the courts ruled in my favor and for good reason. Each of these incidents, I would say, fall under the “isolated and/or unusual incidents” that are not likely to happen again.

Re: mitigation, I am aware that the whole-person concept is factored in, but the question I have is to what extent do adjudicators weigh heavily more on recent (within 3 years) rehabilitory actions that include stellar job performance/awards/promotions, and no other criminal activity?

Thanks
Ramza

4

Marko,

Thank you for the quick response. The position involves an overseas assignment doing policy work.

Could you please explain what constitutes as “reasonable evidence”? I am aware that courts and adjudicators use different methods of evidence collection; courts use the “beyond reasonable doubt” method, whereas the adjudicators use other forms or preponderance of evidence. Each of these cases were all hearsay, and obviously evidence that I committed the acts would have been sorted out in court if the judge ruled that way. None of these resulted in an arrest and beyond the short interview I had with investigators about the incidents, I am curious where they would get additional information on the case; the victims? In two cases, the courts ruled in my favor and for good reason. Each of these incidents, I would say, fall under the “isolated and/or unusual incidents” that are not likely to happen again.

Re: mitigation, I am aware that the whole-person concept is factored in, but the question I have is to what extent do adjudicators weigh heavily more on recent (within 3 years) rehabilitory actions that include stellar job performance/awards/promotions, and no other criminal activity?

Thanks
Ramza

5

Every three years that pass from when an incident happened means the seriousness is downgraded provided no new similar behavior has occurred. Police reports and courts records will be checked and you will be afforded an opportunity to present your side of the story. If all is as you state then it should be mitigated.

6

Marko,

Understood. From your seasoned eye, do you think this would be seen as a pattern? If so, on what grounds of a pattern (criminal, violence)? Even though it will be three years (next month) from when the incident took place, I hope the mitigation would supersede the “pattern” here.

7

Not really able to advise further without having the entire case in front of me.

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8

Concur with Marko. The pattern does not lean in your favor. When you say you took substantial rehabilitation steps, it seems to show in your list of accolades. I would tell you to ask yourself “what is the underlying drive to fighting?” Figure that out, address it and then avoid those situations. Once is happenstance, twice is coincidence…three times…definite enemy action as the old Intell saying goes. One is easily explained away. The second amplifies the first and says “Houston, there seems to be a problem.” Third time can be looked at as a trend. Have you changed your ways and the types of circumstances in your life or are you about due for a clearance ending number 4 incident? Even if it isnt related to the other three I would think trying to defend 4 incidents will not be easy. You are on the cusp of time mitigating IF your age at time of offense also lines up with youthful indiscretion. If you are older and should “know better” you won’t always get the benefit of the doubt. I would continue to take mitigation steps earning awards for good conduct volunteer community activity, mentoring, counseling with a sincere effort and intent. Don’t stop if you get a denial Wait for the statement of reasons and appeal each finding with each mitigation speaking to the specific denial. I have seen denials based on credit, but in the interim of first credit pull to statement of reason and appeal significant progress was made overcoming debt and the appeal was successful. So no matter what continue to move forward and earn as much good will as you can.

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9

Thank you, amberbunny.

To address your questions, “what is the underlying drive to fighting”? With all honesty, none of these were situations I started. If anything, I could say that I may have handled the underlying issue poorly, and I have come to realize that. To be clear, there have only been three incidents, where the third incident ended up being two charges (attempted theft and 2nd degree assault). My post would be much longer if I got into details, but the third incident I did not know any other way I could have handled it as I overreacted out of fear. The assault was more of accidentally placing the person in harm as opposed to me directly trying to harm the person. Again, I could have thought of ways to better handle that situation but in the instance of seconds, it was hard to figure it out at the given time. Looking back, I totally could have developed ways to avoid it. The previous two incidents; the first one, my roommate put me in fear where I had to defend myself after he came back one day drunk and started approaching me and shouting at me as I was doing work. The judge dropped the charge and saw it as self defense. The second incident, which was a sour boyfriend-girlfriend relationship, ended on bad turf where she “felt” to be in danger after she was aware that I found out she was cheating. The fact that I lived 4 hours away from her and she executes a protective order because she “felt” in danger, never justified that she actually “was” in danger, which would be the basis for carrying out a protective order. As a result, the judge rescinded the order since she claimed only that I harassed her, but did not have evidence that I showed violence, forced her into anything or threatened her.

My age: At the time of the first incident I was 19. Second incident happened at 23, and third incident happened at 25. I am now trailing my 30s.

Yes I have changed my ways since the January 2014 incident. I got my masters degree, got a county community award, got two annual performance reviews that were above expectations, got a promotion, did community service, etc. For the incidents, I had to do unsupervised probation from August 2014-August 2015 and no violations were made during that time (I read somewhere that probation is a form of rehabilitation). The PBJ expungement will be eligible next year off of my record. As I said, I have not had any other criminal activity since then, and the accolades I listed all occurred from January 2014, onward. My worry is wondering to what extent will the adjudicators actually see that I have made those strides to make positive life changes, and will it outweigh the negative incidents from the past without me having to waste more time appealing and answering a SOR as I am patiently awaiting to be assigned to a new job, and so is my new boss.

I feel like during my interview with the investigator, we did not spend much time on it or discussing mitigation, but upon being asked, I did go into relative detail, and I provide him with a hard-copy document discussing the issues and what I have done to mitigate them to help in his investigative reporting. I just hope it helps and is enough. I will certainly do what you have said. I feel like I truly worked my tail off to mitigate the issues, but as my security clearance now sits in adjudications as we speak (3 weeks now), it has me overly concerned of a revocation despite mitigation and change in lifestyle.

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10

You also mention a pattern, but a pattern of what?

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2008 - 1st Degree A&B
2012 - Allegations of domestic violence
2014 - 2D assault

That’s the pattern. The adjudicator is not trying to convict you of a crime; if that were the case there would be no problem. But they are trying to apply adjudicative guidelines and I agree with the others that this presents a concern that may cause an issue. Of course none of us can say what the outcome will be but it seems likely that it will be an issue.

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12

But the outcomes of some of these cases were dropped with substantial evidence saying I was not involved in the charge. But I do see your point about the concerns, but with it being an issue of revoking my security clearance, I would hope not.

My hope is that the passage of time will be enough to mitigate this, but to also factor in how drastic of a change I have made since then in my employment record and community activities.

13

The worst part is the waiting… adjudications seem to be taking FOREVER. Plus this is a reinvestigation, so as far as the government is concerned, you are able to work the job, you’re still cleared, so @Ramza your case goes to the bottom of the pile (right down there with mine).

Good luck!

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14

Ramza captured it. Trends. Guilty or not you allowed yourself to be present in situations that headed decidedly south. In and of itself they can begin to deduct points on judgement. I understand your point on being cleared but it is like a similar situation I had with a string of complaints against one particular manager from his employees He made them do their jobs and was cleared of every complaint. He was even quite professional in his approach but his name was on a slide each month in a staff meeting slide for the president of the company to see. You seem to be on a better track as of late and time can mitigate a lot. You may get an “eyes only” letter from clearance where they tell you they are aware and concerned but will clear you. We get these for past drug use and financial indiscretions where I work. It is their way of telling you the conduct is noted and wil not be tolerated moving forward. You lose the benefit of doubt if another situation presents itself.

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15

I think time has mitigated them. I have cleared employees with convictions. One polygrapher told me “3 years old is history, 5 years is ancient history.” Now he may have been trying to see if I would cop to something in that timeframe but I had nothing to speak to. Your 20’s can explain a lot. Once you pass 30 and you completed education…it speaks highly of the path you are on.

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16

Thanks Amber. I thank you for giving me a seasoned perspective as it seems you do this type of work often. Might I ask, are you an adjudicator? If so, and if you would not mind, could I have your contact information like e-mail so that I could ask you some other questions?

As I am still in limbo with adjudications, I’m still trying to wrap my head around why it takes so long just to make a decision ‘YES/No’. I already have held a clearance for 6 years at the same agency and I’m waiting to get reassigned, pending this clearance. My new boss is getting figgidy about the timeframe. I also have to get HR suitability which is a whole different thing. They sometimes seem to be more picky about your background than the security clearance folks. They are more job-specific. In the past, they have denied suitability regardless if one gets a clearance. For instance, if you get 5 speeding tickets, security clearance folks may not be concerned about it, but if your job is to be a driver for an overseas job, you could get denied suitability. It’s very subjective. So this is another hurdle I must cross before officially landing the job. I too hope they look at the more recent history and my employment strides in making a positive decision for me. This has been a stressful 5 months that’s for sure.

Ramza

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17

I’m not an adjudicator. But I speak to clearance folks on a weekly basis for our 340 person contract. I also deal with the investigators who conduct our re-investigations. They are the lesser priority. Even if there is questionable info in the investigation you continue to have access unless a real showstopper pops up. Regardless you will have the opportunity to appeal any negative decision but you need research mitigation and what applies to each item in question and speak specifically to these.

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18

Understood. I just hope this does not take any longer. :confused:

19

That goes back to Marko’s point about the whole person concept, and adjudications aren’t done in a vacuum. That being said, the key thing to recognize is that the process is always skewed in favor of national security versus the clearance holder or applicant. I would have documentation and witnesses ready should it be necessary to appeal any adverse recommendation.

20

@Andrew_Bakaj would you say that there are some agencies less stringent than others when it comes to adjudicative heavyweight? Some places like DOD and the IC usually have a zero tolerance approach to infractions, and some others do not. In fact, in research I saw done by the ODNI, the clearance revocation rates appear so much higher in the DOD/IC world than it would be for other agencies. Maybe the type of job or work you will be doing can affect you those most?

I am hoping to head overseas for a policy assignment. Does that hold the same clearance adjudication weight as a one who will be on an overseas base protecting A-10’s for instance?

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