Domestic Violence, Debt Easy Path to Security Clearance Denial


#1

Originally published at: https://www.clearancejobsblog.com/domestic-violence-debt-easy-path-to-security-clearance-denial/

In a previous post, “Online Dating Sites, Sextortion, and Your Clearance”, I covered the pitfalls and potential for blackmail for clearance holders while using online dating sites. In a similar scenario, a recent Department of Energy contractor lost his security clearance when a woman for whom he was providing financial assistance to and was romantically involved…


#2

I have a question. I was arrested and charged for Aggravated Assault DV. I did not do this and I was not found guilty. The case was dismissed and expunged from my crimimal record (which is squeaky clean BTW) and when I run my background check, it does not show up at all. Will this affect my ability to renew my public trust clearance?


#3

It should not impact suitability for public trust if as you say, it was dropped, dismissed, or you were found not guilty.


#4

Shouldn’t it still be documented since he was arrested and charged?


#5

That was not the question. Of course if it is required to disclose based on the questions on the SF-85P regardless of disposition, then he should do so.


#6

Interesting, the SF-85p, unlike the SF-86, does not have specific language requiring the disclosure of expunged charges. Can you shed any light on this, @Marko ?


#7

It asks if you have been arrested in the last 7 years. Regardless of final disposition, if you were arrested it is required to disclose that information.


#8

Correct, I understand that @Marko . My concern is that the difference in wording between the two documents may lead some to reasonably believe that they are not required to list an expunged charge on the sf-85p when looking at both documents. In my state for example, lawyers constantly advise clients that unless there is specific wording on an application requiring disclosure of an expunged charge (i.e. SF-86) to not disclose.


#9

Once again, were you arrested? That is the trouble with lawyers, they are constantly looking for loopholes.


#10

I get where you are coming from, really, I do. I just don’t understand why OPM wouldn’t include that verbage in the 85p to avoid confusion… If that question alone is sufficient, as you say, then why include the extra stuff about expunged records on the 86 @Marko ? Being able to draw more than one inference from a question is grounds for a legitimate defense to a guideline E along with advice of counsel. What I’m trying to get at is the government could avoid all ambiguity by being consistent on both forms…


#11

There are also additional questions that will be discussed during the interview that were not on the SF-85P. Some of those questions may require the subject to discuss arrests that occurred under an "ever’ timeframe. The SF-85P is well overdue for an update.


#12

You have to look at the SF85P form date, versus the most recent SF 86 form date, to understand why the much older SF85P forms are not as specific as the SF 86. BTW, the SF85 forms have been updated and you will be asked questions (and time frames) very similar to the SF86 in the future…

Marko is right, when the form asks for arrests, and such, the expectation is not to have hairs split or word games played.


#13

I think @dave019 is onto something here. When a record that recent has been expunged, it implies that the underlying actions (arrest, charge, etc.) should have never happened. This is especially true when someone has been falsely accused of an alleged crime or lack thereof.
Thus, it is reasonable for the person to conclude that s/he could answer “no” on the form.

Not to hijack this good discussion, it is not the burden of the reader/respondent to accurately decipher the meaning of a sentence. That burden falls with the writer/owner. Numerous courts have ruled on this. This is not necessarily word-play or semantics game, this is simply plain meaning. If you are not clear on something you write or own, it is on you.

For this reason, I routinely encourage others to seek counsel from a security clearance attorney on situation like this rather than over-reporting. Obviously, this will cost pretty penny and not everyone has the resource to it. Nonetheless, the Government ought to put their lawyers to work… get those forms updated regularly.


#14

In regards to the 85p ONLY: it’s difficult to establish intent for a material falsification case on the non-disclosure of a dismissed/expunged record. The government has to prove that the applicant intended to deceive - not only is that hard to prove when the applicant went through the expungement process on a dismissed charge but now couple that with the fact that the applicant can claim advice of counsel as a defense and the fact that the 86 explicitly asks for expunged records; whereas the 85p does not. As I said before, one can reasonable conclude, based on the difference in the wording on the forms that the 86 wants expunged records and that the 85p does not. I’ve read a couple cases where an administrative judge tossed potential revocations on these grounds ( I’ll link if you guys want, hard to do on cell at the moment).

As for the 86, that form directly states to include expunged records. No defending a non-disclosure of an expunged record there…

On a side note, when discussing this with a professional contact of mine (contract investigator), he told me that expunged records are not used when considering suitability or clearance. This guy has been in the business a while and has no reason to lie to me so I trust his statement…

Regardless, to anyone reading this that is going through a suitability/clearance investigation or filling out the paper work - take @Marko ‘s advice and disclose it on both the 85p and 86. Odds are if it was expunged, that will be viewed as a good thing by an adjudicator and it will likely not even be developed as an issue.


#15

@backgdinvestigator - why does the government not directly state said expectation on the 85p, as it does on the 86? As for the form being out dated, that is not the applicants problem…


#16

Here’s a good one to hammer home my points: http://ogc.osd.mil/doha/industrial/02-13375.h1.html

And: http://ogc.osd.mil/doha/industrial/05-11195.h1.html

Interesting: https://news.clearancejobs.com/2013/08/11/what-is-the-difference-between-a-public-trust-position-and-position-of-trust-clearance-qa/

This document is also important to our topic. In the content, the government states, “Additionally, individuals can be charged with an arrest when they are not present or they may believe a conviction was reduced or expunged”. The governments statement in this document is made in regards to establishing intent to a material falsification allegation. Use the find tool and search “expunged” to find the paragraph. https://www.oig.dhs.gov/assets/Mgmt/OIG_07-67_Aug07.pdf


#17

2002 is a pretty old reference.

I am leaving this thread. Just beware that the security clearance and federal employment is not a criminal process but a civil process. You might win the “shoulda” part of your case but lose the “employable” part.

Also, the SF86 and SF85 series are difficult to change because they do not belong to one agency. Read up on how long it took to make the recent minor changes to the SF 86.


#18

precedent is precedent - 2002, 1980, 1960 - age is irrelevant unless there is a more recent ruling. @backgdinvestigator


#19

Dave . . . Sure, precedent is precedent. But, that doesn’t mean that the laws and guidelines haven’t been changed since the ruling. That is why the age of the precedent matters. If the law or guidelines changed, there may not be a new ruling on to contradict the old because some ambiguity may have been removed so that cases never get that far.


#20

@EdFarmerIII - now we are entering the realm of “what-if” scenarios… great… please, tell me what could have been changed or show me some evidence of change regarding the content of this specific thread?