Criminal history and the SF-86 (section 22.2)


#1

DISCLOSURE

I’m non-military, security clearance noob with an English degree and no idea what I’m getting into.

BACKGROUND

I recently got offered and accepted a position in a department that handles Secret information. I completed the SF-85, the federal background check, and a “quick-check” by the hiring agency to get started, and have been working for less than a week. So far, the work I’ve been assigned to do involves handling stuff of a non-sensitive nature, but one of the stipulations of the job is that I would need to be eligible for Secret clearance. For whatever reason, I wasn’t required to fill out the SF-86 to get started, however, I am going to fill out it next week, and am worried.

In 2008 and 2009, I was arrested on drug-related charges**. The 2008 charge involved a felony possession charge (a pill) that was expunged from my record, though I was convicted of misdemeanor possession of drug (marijuana) paraphernalia.** The 2009 charge, a misdemeanor marijuana charge, was also expunged. As far as convictions go, I only have the misdemeanor possession charge from 2008, which was over 10 years ago.

THE PROBLEM

When I was asked during the initial interview whether I had any criminal history, I said no, as I A) had googled Secret clearance and was under the impression that only criminal charges from the last 7 years needed to be disclosed and B) I thought it was a long shot that I’d be offered the job, anyway.

I discovered today that I might be paying for this carelessness, as I just read Section 22.2 of the SF-86 (the "have you EVER questions), and am feeling pretty puckered. Apologies if these questions seem to answer themselves, but I just want to talk to someone who knows about this stuff, but who isn’t trying to investigate or adjudicate me.

QUESTIONS

  1. Do I need to mention the felony charge and/or the misdemeanor marijuana possession charge, even though I was not convicted and it was expunged? Is it “erased from the eyes of the law,” or is an expunction irrelevant in a nat’l security clearance investigation?
  2. Do I need to mention the time I got caught drinking beer in the campus woods by University police, who then wrote me a ticket that I paid without further ado?
  3. Is this hopeless, and should I tell my hiring manager everything I’ve written here?

#2

You are required to disclose the 2008 and 2009 drug charges on the SF-86 regardless of outcome in court (conviction, dismissal, etc.). Unfortunately this situation may put you in a bind and cause an adjudicator to question your integrity.


#3

Section 22 - Police Record reads: For this section report information regardless of whether the record in your case has been sealed, expunged, or otherwise stricken from the court record, or the charge was dismissed. You need not report convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607. Be sure to include all incidents whether occurring in the U.S. or abroad.

This section answers Questions 1 and 2. As for Question 3, it is up to you. Regardless, you will need to list them on the SF-86 per the instruction.

Question: you said “initial interview”, did you mean a job interview or a “suitability” interview with a security personnel (ie: background investigator, agency’s security manager, etc…)


#4

If you filled out your SF-85 properly, you don’t have to worry about an adjudicator as long as you fill out your SF-86 properly. You are going to have to deal with your employer. You need to come clean there and fill out the new form properly. It MAY cost you your job but I believe that you are still clearable and they should continue your process,


#5

Thank you, I thought I knew the answer to my first two questions, but to hear it from someone else gives me a bit more confidence in how to move forward.

The company is a private contractor, and the initial interview was more focused on my skills, capabilities, and work experience. He asked if I had anything on my record that might come up, and as I thought this translated to “convictions” on my record in the past seven years, I answered in the negative.


#6

Base on that, I don’t think you need to tell your boss anything. That is my opinion. Just fill out the SF-86 as thorough and honest. If these are the issues, I think you will be fine.


#7

@AWoodhull nailed it


#8

Thanks, everyone. I am going to fill it out honestly, and unless my manager asks me about it, I won’t stick my neck out. I think I have a chance, and if I’m denied, well, I’ll find something else. At least I’ll have a job until the adjudication, which from what I’ve heard, may be quite awhile, anyway.


#9

You’ll be fine, mate.


#10

You absolutely are okay if answering within the scope of understanding the question to refer to 7 years. Going out 10 years…well yeah three more years of possible issues. I think you will be okay…but as we seen in another thread some companies are heavy handed.


#11

AWoodhull,

I had a suitability interview with security personnel today for my initial clearance. Would you be able to give some more information about these? Are they generally a bad thing?

I was told they are rather routine. During the interview we discussed the derogatory information I provided on my SF-86 in greater detail than I did during my interview with the OPM investigator.

Thank you.


#12

“Rather routine” - not so much. Hopefully you were consistent with your statements.


#13

T5 investigations (which use the SF-86) definitely have a routine in-person interview. It’s also not uncommon to be called back in for a second interview if they need further clarification of anything.

By no means does this suggest anything negative, simply that they require further information from you in-person due to a discrepancy or something that came up. Sometimes it’s as minor as conflicting dates that arise that need correcting.


#14

I agree with @qazw., as this is your opportunity to tell your side of the story… I have some questions… who is the security personnel? Background investigation? Security manager or FSO?


#15

@AWoodhull apparently the OP’s second interview was with security personnel, not an opm investigator. Which is why I found it to be suspicious.


#16

@AWoodhull @quazw @dave019

I had a big long post written out going into detail about the situation and what was discussed, but after reviewing my potential agency’s adjudication directives I am satisfied with the information I was able to find. When the determination is made (good or bad) I will make sure to post my timeline.

Thank you.


#17

How are Dui(s) viewed when it comes to obtaining a public trust clearance.

I have a friend who has 3 dui(s); all misdemeanors and given probation before judgement (none are felonies). They were all in the state of maryland. The dates are 2 in 2017 (a week apart) and 1 in 2012.

I know that sounds bad but I keep telling him not to worry. He should be clearable correct?


#18

Three DUIs in a 6 year period is a serious issue and will at the minimum warrant a Letter of Interrogatory (similar to an SOR) where he will need to elaborate on and explain the circumstance of each one. It is not only an alcohol abuse concern, but a criminal conduct concern as well. Public Trust positions are equivalent to those needing a Secret clearance, just not have access to classified information, and thus issues like this are viewed the same way.


#19

Sir can you elaborate on this…Letter of Interrogatory (similar to an SOR).

Neither he nor I know what this is.

I appreciate the insight…I just very respectfully don’t understand at all why any security offical anywhere would deny him a public trust for that. I mean that basically means he cannot.work.in the field.

Every job requires at least a public trust. I understand he broke the law…I just don’t understand how it translates to him being unable to pay his bills…he literally has a Masters degree and he lost his job and is contemplating working a minimal wage job to try and make ends meet. That is not punishment enough?

At any rate; at this point what should he do?


#20

I apologize for not including all information in one response.

Of course; they would want to meet with him…that is to be expected. Three dui(s) is extremely problematic and raises serious red.flags about the individual.

However, in my friend’s case…he did not get his Letter of Interrogatory (similar to an SOR).

The investigation personnel used a previous Secret level clearance investigation, saw that he had already met with an individual regarding said issues, and therefore felt no need to meet again because…idk.

Why would they not feel a need to meet?

Again; thank you for your time.