Security clearance with a felony


#1

hello all,
I have a question that I have always wanted the answer to…my situation is…I have a felony charge that has been expunged. when I was a juvenile, I was charged with a felony BUT was tried as an adult. The charge has been over 30 years ago. My record has been super clean since then. I have served in the U.S.Military, 8 years and have completed and passed security clearance since then (so I think, because I was not informed otherwise) Will this hinder my security clearance for employment of government opportunity? Any help would be greatly appreciated.


#2

If all is as you say - you’re good to go.


#3

thank you for the reply Dave019… additional info…my lawyer back then had told me that, if I was to ever get asked the question for employment , " have you ever been convicted of a felony?" …my legal response can be “no”…since then, every time I am asked that question, I can legally say “no”…although I have a judge signed document from the expungement process, should I have submitted this with my employment government application?? thanks


#4

You’re fine, if asked about it, disclose. I think you can easily mitigate why you didn’t list the charge if it comes up (advice of counsel, etc.). Depending on the state the charge and subsequent expungement took place will dictate if an FBI/state police records check will reveal the charge. So, research your states expungement laws - you’ll find your answer there. Also, I recommend calling the state police bureau of identification where your charge took place and obtaining your record (RAP sheet). I’d also like to add - most expungement attorneys, at least the ones I’ve been exposed to, advise their clients to destroy all their personal records related to the incident (police report, expungement order, etc.).

Reference the following article: https://legalbeagle.com/5073501-long-police-records-kept.html

The FBI does comply with state expungement orders. Is the FBI obligated to do so? No, however they do so at the request of state police agencies all the time because the states are the custodians of said records…So, pay no attention to individuals who tell you otherwise.


#5

On the other hand, the federal form, SF 86, clearly states that you are required to report certain activities, regardless if the record is expunged or sealed. Failure to report information you are required to report in itself is a federal law violation.

Read the questions on the security clearance questionnaire carefully. Any question with a timeline (3 years, 7 years, 10 years) means that date back from the day your certify your security questionnaire application. You do not have to provide information outside those periods.

Be aware, ever really means ever in the security clearance process.

Don’t let others tell you it is okay to lie on your security clearance questionnaire. You are the one that gets harmed, not those providing poor advice. You are the person impacted by your responses…


#6

@backgdinvestigator “federal law violation” - requires intent. If the subject did not intentionally falsify his SF due to his reasonable belief that he did not have to disclose an arrest based on advice of counsel and expungement order - there is no crime. A failure to report information would not measure up to intentional or material in the OP’s case - he’s fine - stop scaring him.

Reference: http://www.dhra.mil/Portals/52/Documents/perserec/ADR_Version_4.pdf

Use the find tool - type in “expunge”. You will find that DoD understands these circumstances and deems such incidents of falsification as reasonable from the subjects perspective.


#7

I believe that the SF-86 asks, "Have you ever been charged . . . " It doesn’t matter if the record is expunged. It doesn’t matter if you were exonerated. You were charged. Disclosure with an explanation beats the pants off of trying to explain why you didn’t self report and THEN explaining the issue.

This shouldn’t stop you from getting a clearance so why make the process more difficult by not being up front at the start?

Yes . . . there has to be intent to be charged with SOME federal crimes. Others do not require intent. But, we aren’t talking about a criminal procedure. If you lie or mislead on the SF-86, you HAVE committed a crime. You are not likely to be charged but it will make it far less likely that you will receive your clearance quickly.

What is the goal of most people asking questions here? Are they trying to avoid criminal charges? Or, are they trying to get into an area of work in the national interest?


#9

Thank you EdFarmerIII,

Thought not often prosecuted, you still lose the clearance and job.

I agree, too often people in forums want reassurance their bad behavior is okay, or that lying on the form and to the system is “okay”. It is not.

Myself and other Agents/investigators I know come to these forums to give advice or to explain the system. None of us are here to help anyone beat the system.


#10

I just wanted to be clear regarding intent here in the OP’s case. If he omitted the incident for reasons specified in his prior posts (which it sounds like he may have done) DOD understands this and guides adjudicators to understand that omissions such as his are likely not intentional or material.

On a side note, I agree that some people come here to find ways to cheat the ‘system’; however, in this case - I don’t believe that. This guy had an incident 30 years in the past (after 9 years pretty much everything is a non-issue) if this is even developed during a bi and he omitted it an adjudicator will likely look past it.


#11

I will presume that you did not have that in written. So, you might want to get in touch with the attorney and have him/her on standby in event if this issue comes up during the investigation.


#12

Thank you all for your input and advice. I really appreciated it… dave019, backgdinvestigator , EdFarmerIII…I just needed to get some issues to be looked at from a perspective of another, in the case that something I had not thought about. I am not trying to come across as to beating or going around any system. Main concerns were stated in my first two post with the facts as they were. I have never applied for a Government employment before so all this is new to me. As for disclosing “before” it comes up, in todays online applications the computers are set to reject the applications to be looked at if a certain block is checked or not checked (depends on question)…I know this all too well because I have been on the other side looking at resumes/CV…of course I am not referring to the SF86… thanks again


#13

My company lost a deputy program manager who did not disclose a wrongful arrest for DUI. When he went to the judge that evening, the judge apologized, told him he was not in violation and sent him home. Fast forward 20 years, he applies for a TS, consistently sticks with the judges words “this never happened.” After two poly’s, and two interviews and he was denied the upgrade, lost his Secret clearance and I had to remove him from our work site. He also believed he was being honest and forthright. Candor is the issue, not the 30 year old felony. Clearly, concisely explain the circumstance, and do not twist words in evading making a note of this. Having been cleared once indicates they took a chance and you lived up to your obligations. If there are no other questionable areas, foreign connection or influence, finances are solid, no recreational drug use…I don’t see a problem. Time is a great mitigator. If they feel you were not candid…it unglues that mitigation. And fail-able human beings will need adjudicate if you had intent to falsify or hide. Kind of like a coin flip. Keep the odds in your favor, reveal all and include you were instructed by counsel to say “no.”


#14

It sounds like your deputy should have realized that he was mistaken about the need to report the arrest and admitted that he was misled by his interpretation of the judge’s words. An issue that could have been mitigated.

THAT, I think is the message to be taken from your story . . .


#15

@amberbunny - This guy held a secret for 20 years? And that DUI never came up? If that’s the case, this instance goes to show that most past criminal behavior is revealed by poly, references, and self-admission.


#16

“Some states have laws that authorize subjects whose records have been expunged or sealed to deny legally that they have been arrested or convicted when asked. At the time of expungement or sealing, these subjects may even be explicitly instructed of their rights upon being questioned about criminal records. A person who has received these instructions and then sees a question about criminal records on a security clearance form can reasonably justify having withheld the information. However, the information must be provided when the need for it is explained.”

“The deliberate omission, concealment or falsification may be disqualifying. It is “deliberate” if it is done knowingly and willfully. Omission of a past arrest or past drug use, for example, is not deliberate if the person genuinely forgot about it, inadvertently overlooked it, misunderstood the question, or thought the arrest had been expunged from the record and did not need to be reported.“

The above quotes are taken directly from guidance given to DoD adjudicators (http://www.dhra.mil/Portals/52/Documents/perserec/ADR_Version_4.pdf#page55).

@amberbunny Your guys issue was likely the fact that he continued to lie after being confronted with the incident…


#17

His situation is as I hopefully made clear, it comes down to candor vs the arrest. Having been in this business many years, even I argue about the verbiage on that portion as many get confused, is it 7, is it 10, is it “ever.” In this case he should have put in on the clearance form as an arrest, and stated it was in error and the judge apologized on behalf of the court. Now, how exactly this arrest was captured for the official record may be entirely different than his recollection. And that may or may not have been intentional. I think he tried parsing words, it caused obvious stress, the machine picks up on this stress and they want a repeat. Obviously the questions circle in on that question, increase stress, increased response…gives them a potential “aha” moment. They know of the arrest, call in for an interview and he continues to choose words carefully. Now he sounds evasive. Once you are on that death spiral it is hard to recover. Had he said up front “I was arrested, it was nullified, expunged or whatever term they gave him,” I believe it was a complete non issue. The revocation was for a lack of candor not the event. When you rely on humans to make a determination over what you quoted above, three different people may give 4 different answers or determinations. It matters not that any of us feel he wasn’t concealing or being dishonest. It only matters what the adjudicator felt was the truth. Hence, why I often sound like a broken record telling people to over report instead of under report. I even advise people to report items just outside the 10 years so they aren’t in a position to try and defend any bad behavior. A simple “Outside of 10 years, I was arrested and this was the situation.” Simple, make clear it is outside the 10 (if that rule applies) but disclose it. It speaks to a person’s over all honesty, integrity, and ethics if they are willing to reveal potentially embarrassing information. I would never recommend trying to defend an event on a technicality. Anyone acting legalistic may be in violation of spirit and intent and that shapes and forms opinion in an adjudicator’s mind. I honestly believe it can make or break a case of a person being granted a clearance or not.


#18

Cracked under the pressure during the poly… that’s rough, foolish of him to try and beat it.


#19

The SF86 specifically ask to report if a charge was sealed, expunged or otherwise stricken from the court record. Whether it is a charge of falsification of docs or a lack of candor is the issue. Although, legally, the subject is told he need not report it, he/she are still following the instructions of the SF86. In the end, it comes down to the adjudicator. The best course is to report it and mitigate it at the end. It speeds up the process and doesn’t leave reason for doubt.


#20

I agree with Northstar. Being legalistic rarely ends well. In my case, the senior manager should have spoke to the arrest and told them he was informed it didn’t happen. If there is zero court action on the arrest that lends credence to what he was saying. I think our guy tried sticking to “it never happened,” but showed obvious tension and discomfort regarding the probing questions. And they likely already had the data for the arrest and circled the topic numerous times…he didn’t roger up to it and say “Well, there was a situation…but…” Then they could write a poly question for it and it could have self mitigated.


#21

http://ogc.osd.mil/doha/industrial/09-03425.h1.pdf

I’ve read several like the case linked above. My point, and why I say what I do regarding this topic is that often times folks who have an expunged record believe they are answering the question accurately. They likely aren’t plotting to “get one over” the government…

And @amberbunny , as for being “legalistic” - the judges like the one in the case linked above are licensed attorneys… That very legalistic lense you condemn is what gives people their clearances back