Top Issues in 2017 for Security Clearance Denials


#1

Originally published at: https://www.clearancejobsblog.com/top-issues-in-2017-for-security-clearance-denials/

Through the end of November 2017 the Defense Office of Hearing and Appeals (DOHA) Board heard 2,054 clearance denial appeals. As you can see, financial issues continue to outpace all other issues combined. Below is a breakdown by adjudicative category of the types of issues involved (Note – many cases had multiple issues): Adjudicative Guideline …


#2

Interesting statistics . . . It’s not surprising that financial issues are by far at the top of the list. The economy has been bad for the last 16 years and many people are still digging out from problems. It does surprise me how low some of the other numbers are. Of course these are only the appealed denials. I suspect that many who were denied for things like Guidelines A, B and C, may not be inclined to bother with an appeal.


#3

This is interesting to me as well because my main issues were Financial and I still got the clearance. I had a large amount of debt that was not from student loans or anything simple. It is strange to me because why do all these people get denied because of financial, it isn’t the fact that they have debt, it’s the fact that they aren’t doing anything to correct it? Are there situations where people have a lot of debt, are making payments, but still get denied?


#4

I suspect that most people with debt can explain/mitigate the concerns but they get denied, initially either because they do not do a good enough job explaining it on their SF86 or the SF86 just doesn’t give you the chance.

At lot of this could be addressed with the investigator and that’s what I tried to do. I provided a pile of documentation to the investigator and the same information in the reply to my SOR. I was denied but the same information, pretty much, allowed me to prevail on appeal.

I feel like the adjudicators need better instruction on interpreting mitigating factors.


#5

The majority of appeal denials were because the applicant did not start mitigation steps until after being confronted with the debts or took no steps at all and just had the debt unresolved. Or, they mitigated the debt issue but not the other issues like lack of candor or the failure to file taxes, both which fall under personal conduct.


#7

Marko . . . Do you have stats on denial appeals that were overturned? Maybe those applicant appeals that were overturned as opposed to government appeals of approvals that were overturned?

It seems like the number the interesting, useful, statistics would allow us to look at the number of denials that are overturned by judges after hearings and the number of appeals, both denials and approvals, that are overturned by the appeals board.

This would help to show that adjudicators and judges are doing a good, mediocre or poor job of making decisions. For example, if many denials are being overturned at hearings, it would help to show that adjudicators are being either overzealous or lazy. Either denying applicants that they should know are going to win at a hearing OR just issuing denials so that someone else makes the final decision.


#8

Just a thought… you mentioned that you provided “a pile of documentation”, but did the investigator accept those documentation and enter those documentation into “case file”? I am really curious as to how the investigator determines which documentation to accept. This acceptance could possible factor into why adjudicators might not have sufficient information on hand to make a better determination.


#9

The majority of appeals were upheld by the DOHA judge. Many applicants attempted to introduce new evidence not previously submitted in the initial SOR response (e.g., showing payments made). That information cannot be considered by the judge since it was not used to make the initial denial decision.


#10

Some clarification is needed regarding the use of the word “appeal.” The DOHA hearing is not an “appeal.” At DOHA an appeal can occur after the Administrative Judge (AJ) grants or denies a clearance based on a hearing or based on the written record (File of Relevant Material—FORM). Appeals at DOHA are submitted in writing (Appeal Brief) by either the applicant or the Department Counsel (DC) to a three-member DOHA Appeal Board. It is not permissible to introduce new evidence or new arguments with an appeal. It is permissible to introduce new evidence at a hearing or in response to a “File of Relevant Material—FORM” that was not submitted with the SOR response.

For EdFarmerIII: Here’s an excerpt from an article I wrote in 2012. The win/loss percentages are probably about the same today:

“I reviewed 500 cases decided by Administrative Judges (AJs) at the Defense Office of Hearings and Appeals (DOHA) between March and October 2012. These cases showed that at the final stage of clearance adjudication, applicants with attorneys or personal representatives were granted clearances 60% more often than those who represented themselves (pro se). Yet only 20% of applicants chose to be represented by an attorney. Of the 400 pro se applicants only 32% were granted security clearances. Of the 98 applicants who were represented by attorneys 51% received security clearances. There were 2 applicants who were assisted by “personal representatives,” and both were granted security clearances.”

The success rate of those who pay for professional help is somewhat skewed because they are usually applicants with the poorest likelihood of success and because a significant number of these applicants are able to have their SOR withdrawn by DOHA based solely on the SOR response and obviate the need for a hearing.

Only about 5 percent of applicants (appellants) who appeal to the DOHA Appeal Board to have a clearance denial/revocation by a DOHA AJ overturned are successful. DOHA DCs are much more successful when they appeal a decision favorable to the applicant.


#11

Thanks! That’s a lot of the information that I was looking for. I guess that I bucked the trend. I went pro se in a hearing on the written record and came out on top. To be fair, I had been involved, as a witness in a previous hearing where the applicant was represented by an attorney. I learned a lot by observing the work of the attorney and their mistakes. So, I had a very good idea of what that judge was looking for an built my response to the FORM on that base. It also helped that I am a pretty good writer and took my time organizing my brief.

The DC initially filed for an appeal and I was prepared to have an attorney review or file that brief but they decided, at the very last minute, not to file the appeal.

So, I came out on top! Of course, now I’m waiting for a start date for my new job . . . Hopefully, early in the new year.


#12

About 30% of cases decided by DOHA AJs are based solely on the written record (FORM response) and only about 12% of those cases are favorably adjudicated. Of the cases that go to a DOHA hearing about 40% are favorably adjudicated. I believe in most cases it’s better to request a hearing. The benefit of a hearing for “Financial Considerations” may pretty small, because it is a relatively objective issue for most applicants, as compared to “Psychological Conditions” which is a very subjective issue. My gut tells me that applicants who benefit the most from a hearing are those with multiple issues and those with very subjective issues like Guidelines B, C, D, E, and I. Applicants have to weigh the additional cost/benefit of a hearing versus a FORM response.


#13

BTW to an earlier question - yes, you can submit documents to the investigator to be included with the ROI. No, the investigator is not allowed to decide what documents are included - everything you give me is submitted.

I’ve seen people submit strong documents that support their story and I’ve seen otherwise. I am not allowed to filter or advise you on what to submit.


#14

So my investigator said in about two more weeks he will submit my paperwork. Once it gets submitted does it automatically go to adjudication?


#15

To me this is the great mystery of the ages. I believe there is some kind of quality control/review that has to take place with the contractor (if applicable) and then again with OPM before it gets sent to adjudication.

As to when it actually gets into the adjudication phase and the clock starts ticking, I have no idea. Practically no insight into this part of the process unless the adjudicator contacts you looking for more info.


#16

Realistically what are the timetables for adjudication looking like?


#17

1,000 days. Minimum .


#18

I believe that @lmikelowrey is exaggerating. But only slightly :no_mouth:

Seriously, we are starting to see initial final secret clearances being granted in six months or less… in some cases. Note that these are the ones that were submitted 6-9 months ago so I wonder if they are focusing on getting new cases done quickly. Which would make some people happy but would not really not really clear the backlog.


#19

Yes, I was kidding. But realistically, no one can say for sure because any type of guideline set is not being consistently followed. I think averages for Adjudication are 30-90 days. Unless your FSO tells you that you are in adjudication there is no way of really knowing. My investigator told me he was submitting my file, and my case is done, 3 separate times. Each time he contacted me again weeks later with another question.


#20

Here’s my timeline for a recent periodic update for TS/SCI with a contractor for an IC agency:

Sometime Fall 2013: Submitted eQIP
Sometime late 2013: Met with investigator (OPM FIS guy, not a contractor)
Investigation Complete: January 2014

tick… tick… tick…

Final clearance (update) granted: APRIL 2017

Now there’s a bit more to the story but I heard NOTHING from Jan 14 til about Sep 16 (had to provide some more info) and then crickets again til beginning of Mar 17, then finally granted. The stuff they asked about in Sep 16 and Mar 17, they knew about from the investigation! Took them 3 years just to ask me a question!


#21

Just because your investigator says h is turning in his portion does not mean it is done. All required items must be completed before it is reviewed by OPM and delivered to the requesting agency.