Question about previous infraction for SF86 - Question 22.2


#1

I have been with the same Federal agency for 18 1/2 years - going for my sixth position within the agency. This is the first time I'm getting a full security clearance (previously it was just lower level background checks).

I plead no contest and received deferred adjudication for a Class A misdemeanor - Assault/Family Violence, which included one year probation. The case was dismissed after I completed the year of deferred adjudication/community supervision. Court date was August 1999 and dismissal date was September 2000. The claimant was a relative, but not one that is listed in Question 22.2 (child, dependent, cohabitant, spouse, former spouse, or someone who you share a child in common).

Specifically the question 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?"

The question is - do I list it on the SF86 or not? I'm afraid if I don't list it, that it will come up in the investigation. But then it really doesn't fit the question to include it. The issue has not come up in any of my previous Federal background checks.

Thanks for any help.


#2

Although it is technically not required to be listed if the other party involved was not one of those listed on the question, disclosing it would be better just to avoid any questions or appearance of a lack of candor. It would not have the slightest impact on your ability to get a clearance,


#3

I disagree Marko. As an Investigator that is currently doing the actual investigative work, if the domestic violence or crime of violence did not occur against a child, spouse, someone with whom you share a child in common, etc. as encompassed in the question, than the response is "No" and the information regarding the incident is not required to be listed on SF-86.

Listing this is going to waste the investigators time and is not pertinent to question at hand so I would say do not list it. The investigator is going to ask you anyways, why you listed this if your answer to the question didn't meet the criteria. If you were charged with a felony for this offense, than you'd be required to list it because this is an "ever" question or if the offense resulted in an arrest in the last seven years you'd be required to list it but since the timeframe is outside of seven years and did not include any of the direct people against as indicated by your statement than the answer is "No".


#4

However, as an adjudicator....when I am reviewing the case and look at the FBI fingerprint results that shows a battery family violence charge with no additional information then I might question why it was not listed on the SF-86. An it is the adjudicator who is making the final decision, not the investigator.


#5

Marko,

With all due respect...are the applicants supposed to answer the questions as stated on the questionnaire or error on the side of caution and list anything that helps their conscience feel better as they unload their life history about something that doesn't qualify as a "Yes" response to the particular question?? I get people that list all of their traffic violations in the police record section but none of the violations were drug or alcohol related and were under $300.00. When I ask them why they listed this...I get the answer that a personnel security POC indicated for them to list this or they felt they wanted to error on the side of caution and list everything to be open about their traffic violation history. Investigators are required to go over the SF-86 and expound upon answers provided but if people answer a question when the answer doesn't apply and they actually answer incorrectly, it is a waste of time and now it has to be discussed.

I understand an ajudicator would have a question about this particular scenario if you had an FBI check that indicated a family assault charge. So at that point the ajudicator or agency could request a re-contact and pay the investigative agency for the additional recontact to confront on this information. Once the applicant indicated why he answered "No" to that question because his crime of violence or domestic violence was not against the individuals noted on the form, the agency would have their clarification and answer.

I believe it sets a slippery precedence to answer questions and provide information for questions that aren't required to be answered. If someone doesn't understand the question well or what is being asked, then by all means list the information to error on the side of caution but I believe it's prudent for the applicants to answer the questions accurately and honestly whether the answer is Yes or No.


#6

Going to have to agree with @Duetooversight . Waste of everyone's time because it doesn't meet the threshold. It's possible it will be brought up during the course of the investigation just to address it, but I have no reason to believe he will be penalized for following instructions.


#7

You are all correct in all you have stated, but when follow-ups are required to obtain more information it delays the final adjudication process. Based on the scant information provided in the original poster's scenario for this specific question, I advised it does not hurt his chances for obtaining the clearance by listing it.


#8

The exact question is: 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?

Upon further thought and examination....If the end of that question had an etcetera (etc.) after it than I think the applicant would have to answer "Yes" to this question because it would indicate that the question is giving examples of individuals whom one could commit certain acts of domestic violence against certain individuals such as the crime of violence occurring against a spouse, former spouse, child, dependent, cohabitant, or someone with whom you share a child in common and then first part of the question would really be THE question being asked.

I don't know what the attorney who wrote this question is really asking or what OPM/NBIB is actually asking or referring to as the question leaves open to some interpretation by the applicant. Once again another ambiguous question on the SF-86. So maybe I'm wrong. Perhaps Marko has a point by erring on the side of caution for this particular question.


#9

Always interesting to see investigators', reviewers', adjudicators' or FSOs' opinions in that they can all give vastly different answers to "straightforward" SOP's. Interesting times we're in, @marko.hakamaa !


#10

Thanks for all of the feedback. Interesting and varied.

Interesting that you all brought up the traffic ticket thing as well. I also had two traffic/municipal court visits in the last 7 years where the fine was in the $200-$300 range and was pondering adding those "to be safe". That does seem like overkill. Otherwise, my financial/criminal record is clean, and I have an excellent work history all with the same agency. I feel like they should have an "additional comments" section for the SF86 where you can explain things that may pop up and why they were omitted.


#11

You have nothing to be concerned about. Your question generated good discussion that hopefully will be beneficial to others. Having worn the various hats of applicant, investigator, FSO, and adjudicator I have a broader perspective then most, but am still constantly learning new things in an ever-changing landscape.


#12

Based on what you said you were not convicted.. so answer "No"...


#13

dave019, I advise you to read the preface for Section 22 on the form carefully, you might be inclined to change your advice.


#14

Marko,

You have leaps and bounds more experience than I do when it comes to this SF-86 stuff; therefore, I advise the OP that he/she should follow your advice over mine if you believe he/she should answer yes.

I just read the post, noted that the OP indicated that he/she was not convicted of the offense; thus, I applied simple logic to a direct question. I did not know such a question had to be prefaced, then again we are talking about a form drafted by the federal government..

At any rate, in my state of residence a deferred judgement is not a conviction (unless the terms of probation are violated by defendant). So If I were asked by a client how they should answer question 22.2 I personally would remain steadfast in my original answer; however, I would also recommend they also browse this blog!


#15

Deferred judgment or adjudication withheld is the same thing as being on probation, which indicates guilt. Under state law you may be correct in not having to disclose, however, the SF-86 is used by the Federal Government and as such trumps state laws, much in the same way marijuana use as still illegal under Federal law even though it may be legal in that state.


#16

To say nothing of the fact that these BI and other aspects of the application process seem to vary so much from agency to agency.


#17

Having recently been investigated . . . I would consider answering “No” but explaining the situation anyway. The investigator is going to see the records come up anyway and, I am certain, ask the question if it’s not on the SF86. Why not provide the documentation in advance?

In the case in question, even if it’s not on the SF86, the investigator will see the court records (I believe) and may not be able to tell, from those records, that the complainant in question doesn’t meet the standard of the question. An explanation provided on the SF86 could clear that up more quickly. The idea that the adjudicators could come back to the investigative agency ignores the fact that delays like this can cost the applicant months of time and thousands of dollars in lost wages.

As noted by Duetooversight . . . Traffic violations are a different story.