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.
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.
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.
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.
@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…
Here’s a good one to hammer home my points: http://ogc.osd.mil/doha/industrial/02-13375.h1.html
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
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.
precedent is precedent - 2002, 1980, 1960 - age is irrelevant unless there is a more recent ruling. @backgdinvestigator
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.
@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?
Since I addressed your general statement, I’ll decline to get into a tit-for-tat with you on the specifics.
Enough to say that SCOTUS often revisits cases periodically and either affirms for reverses prior rulings. In addition, an appellate court ruling can stand for years as a precedent before being reversed by a higher court.
Precedent is also ONLY precedent. It is NOT law.
I don’t much enjoy tit-for-tat either, especially when the debate lacks any credible evidence supporting a claim.
The very definition . . .
I suppose I should clarity, I provided evidence… I have not seen any in opposition.
Please refrain from personal diatribes on this forum and keep on topic.
That is not true. Judicial decisions become case law. Those decisions do not expire unless the deciding court explicitly says do in its decision. So, the age of a judicial decision is irrelevant. If there is a recent law by the legislation or a new precedent on this, please share that with us as I was unable to find one…
The point . . . For the last time . . . Is that I was addressing the general statement that old precedent CAN be superseded. If someone is quoting old precedents, in a forum of this type, it is incumbent on them, or those taking their advice, to be certain that it has not been superseded by changes in law or further decisions.
I wasn’t talking about expiration.
End of story . . . I really do not need lessons in our legal system . . .
Just a note to close this topic, from an adjudicator’s point of view expunged records can be considered if the conduct that led to the charge actually occured and there is more recent similar conduct. Many times prosecutors and judges want to clear the caseload and accept plea deals and such. Clearance adjudiction is not constrained by criminal prosecution standards, but rather gauge the probablity of the whether the conduct actually happened along with mitigating factors.
It seems a little odd that the number one cause of clearance denial is financial issues, given that the country is just now emerging from one of the worst economic crises in history. I know or have worked with a ton of people, holding very high level clearances, who have massive debt and financial issues, normally due to extended unemployment associated with huge losses to the Defense Department during the 2008-2016 timeframe. They’re working the problems out, but those sorts of things can take years to recover from. So, bottom line, what exactly constitutes “financial concerns?” Because if having debt or having been through severe financial hardship is reason enough to deny a clearance, a lot of people are in real trouble, me included. What should I be doing to mitigate this?