Security Clearance Appeals

Getting Careers Back on Track

Security clearances are foundational to any successful career in the Department of Defense. They’re a key requirement in many senior-level positions, and specific projects require unique clearance levels. Fulfilling your dream of service at the highest level hinges on your ability to receive security clearances.

That’s why having that clearance revoked or denied can become a severe career impediment. It may even be a shock—you’ve never committed a crime, filled out all the paperwork, and never lied. The denial has you scrambling. You’re wondering if you can keep your job or ever be promoted. With so much now at stake, you need answers and a plan to regain your career.

Now’s the time for experienced assistance. A failed appeal can postpone employment or promotion for at least a year. Your next steps should be calculated. Contacting an experienced security clearance lawyer can be the difference maker you’ve been looking for.

In this moment of immense need, trust Daniel Conway & Associates. We have over 80 years experience in military and Department of Defense law. Through our decades of service, we’ve built a successful track record in handling security clearance appeals for all branches and civilian contractors.

Security clearance cases are part of our firm’s DNA. Our Managing Partner, Mr. Daniel Conway, was previously an intelligence analyst on active duty and has experience in all stages of security clearance denials and revocations. Our team of security clearance lawyers has practiced before all of the security clearance appeals boards and the Department of Hearings and Appeals (DOHA).

When clients turn to Daniel Conway & Associates, we explore every option to ensure they have the freedom to advance their careers. Call us today for a free consultation with a security clearance adjudication lawyer.

Advancing Careers Case by Case

This firm has a long successful track record in handling security clearance appeals for all branches and civilian contractors. Mr. Conway was previously an intelligence analyst on active duty and has experience in all stages of security clearance denials and revocations. We have practiced before all of the security clearance appeals boards and DOHA.

Getting Careers Back on Track

Security clearances are foundational to any successful career in the Department of Defense. They’re a key requirement in many senior-level positions, and specific projects require unique clearance levels. Fulfilling your dream of service at the highest level hinges on your ability to receive security clearances.

That’s why having that clearance revoked or denied can become a severe career impediment. It may even be a shock—you’ve never committed a crime, filled out all the paperwork, and never lied. The denial has you scrambling. You’re wondering if you can keep your job or ever be promoted. With so much now at stake, you need answers and a plan to regain your career.

Now’s the time for experienced assistance. A failed appeal can postpone employment or promotion for at least a year. Your next steps should be calculated. Contacting an experienced security clearance lawyer can be the difference maker you’ve been looking for.

In this moment of immense need, trust Daniel Conway & Associates. We have over 80 years experience in military and Department of Defense law. Through our decades of service, we’ve built a successful track record in handling security clearance appeals for all branches and civilian contractors.

Security clearance cases are part of our firm’s DNA. Our Managing Partner, Mr. Daniel Conway, was previously an intelligence analyst on active duty and has experience in all stages of security clearance denials and revocations. Our team of security clearance lawyers has practiced before all of the security clearance appeals boards and the Department of Hearings and Appeals (DOHA).

When clients turn to Daniel Conway & Associates, we explore every option to ensure they have the freedom to advance their careers. Call us today for a free consultation with a security clearance adjudication lawyer.

Advancing Careers Case by Case

Special Access Program Clearance

Having TOP SECRET clearance does not grant a person access to all national security information. Often, information falls into the category of “need-to-know.” This means that only very specific people have access to and knowledge of certain information, projects, and materials.

Sometimes, this can be informally determined. Information on a formal need-to-know basis falls under a Special Access Program (SAP) clearance. In short, employees with SAP clearance have additional access beyond typical SECRET or TOP SECRET clearance.

Once employees have SECRET or TOP SECRET clearance, they become eligible for SAP clearance. However, they cannot apply for this designation. Instead, a supervisor with SAP clearance must determine that they need to know certain information and request that they receive clearance.

For this level of clearance, candidates must be United States citizens with SECRET or TOP SECRET clearance, a current background investigation, and they must take a Counterintelligence Scope (CI) Polygraph exam. The CI polygraph assesses whether a candidate has ever been aware of or participated in foreign espionage, sabotage, or terrorism (including domestic).

Sensitive Compartmented Information

Another high-level clearance is for Sensitive Compartmented Information (SCI). Typically, this information is related to intelligence information, though other programs use SCI clearance. It is only open to individuals with TOP SECRET clearance.

Like SAP clearance generally, individuals cannot request SCI clearance for themselves. These requests must come from the specific component with SCI responsibility. In addition to questionnaires, polygraphs, and additional background checks, there are usually specific requirements for TOP SECRET individuals.

These additional requirements can vary based on who holds the sensitive information, as they ultimately determine what those requirements are. For example, they may require that a candidate have no foreign-born relatives.

Tier Five Investigation

As mentioned, there are more thorough background checks and investigations at higher security clearance levels. At the highest level are Tier Five and Five plus investigations. Tier Five investigations are used for candidates seeking TOP SECRET clearance.

A position that requires TOP SECRET clearance is considered high-risk and critically sensitive, meaning that the information the candidate has access to can threaten their service and cause disastrous damage to national security.

Applicants undergoing Tier Five investigations for security clearance revocation can expect the following:

• Polygraph Examination: This may be a counterintelligence polygraph to determine foreign interference or a lifestyle polygraph to determine if there are any potential issues in an applicant’s personal life. In some instances, both may be conducted.
• Single Scope Background Investigation: This background check goes back 10 years into a candidate’s life and is one of the most thorough background checks in the federal service.
• Interviews w/ employers, neighbors, and co-workers.

There are also periodic reinvestigations at this level that take place every 7 years. These periodic reinvestigations could be a source of security clearance revocation. If that should happen, contact Daniel Conway & Associates so our security clearance lawyers can review your revocation and advise on the next steps in a free consultation.

What are the Security Clearance Levels?

Depending on your specific employment in the federal service, you may need to have one of three main security clearances. They are as follows:

• CONFIDENTIAL
• SECRET
• TOP SECRET

These levels are standard across all Department of Defense (DoD) agencies and roughly match up to other federal departments like the Department of Energy. Someone with Confidential clearance has access to information and materials that could cause measurable damage to the United States. At a SECRET clearance, that is raised to severe damage. At TOP SECRET, the cleared employee can access information and materials that could cause disastrous damage to the US.

Hundreds of thousands of security clearance applications are processed every year, and standardized forms are used throughout the process. Candidates are required to fill these forms out thoroughly and truthfully. At each level, applicants can expect more rigorous and far-reaching investigations into their background because the information they access is more sensitive.

These clearance levels are familiar to anyone involved in federal government work. That applies to civilian federal employees, contractors, and military members who work on projects that require access to sensitive national security information.

Confidential, SECRET, and TOP SECRET are not the only security clearance levels, though. Two other special designations—Special Access Programs and Sensitive Compartmented Information—are beyond the familiar clearance levels.

Of course, if you’re reading this page, you know this information. However, you may not know what steps to take to save your career and everything you’ve worked so hard to build. Don’t shoulder the burden alone, you deserve a battle-hardened military defense lawyer like Daniel Conway in your corner. Call for free consultation.

Why Was My Clearance Denied?

Security clearance procedures aim to carefully vet a candidate’s suitability and fitness for the clearance level. A candidate’s suitability is a prediction of their conduct in the role based on their character. Fitness is similar to suitability but determined more granularly by the agency or entity deciding for clearance.

Although it is relatively uncommon, candidates might have their clearance denied or revoked for various reasons. In a given year, the security clearance denial rate is typically less than 1%. The denial rate is so low because most candidates are screened out before security clearance adjudication. Based on their suitability review, these candidates are said to have been “automatically” disqualified.

The top five automatic disqualifiers for security clearance include finances, drug and alcohol use, foreign influence, criminal convictions, and security violations/personal conduct.

Finances

Financial considerations are usually one of the most common reasons a security clearance application is denied before adjudication. These considerations can include high levels of debt, financial crimes or other illegal financial activity, or gambling.

High levels of debt are fairly common, but for security clearance purposes, they’re seen as leverage that a threat might have over the candidate. For example, a foreign spy may try to acquire TOP SECRET information by offering to pay off a cleared employee’s student loan debt.

Similarly, a gambling habit could be a source of debt, or it might show a candidate’s unsuitability. The background investigators may determine that gambling indicates a dangerous willingness to take risks that could lead to information leaking.

Drug Use and Alcohol

Another common cause for automatic disqualification is drug use and alcohol abuse. The law explicitly prohibits drug users from having or maintaining a security clearance. It’s easy to understand why. Drug use can lead to intoxication, which in turn leads to poor decision-making. Additionally, an addiction may be another source of leverage for a foreign agent.

A high level of alcohol consumption is likewise flagged for automatic disqualification as it again shows that a candidate may divulge information when under the influence.

Since drug testing is a routine part of service, a positive urinalysis test may throw a career in jeopardy when it results in security clearance revocation. A military security clearance lawyer ready to defend your rights and career can prevent innocent ingestion from ruining a career.

Allegiance to US

Any security clearance level requires unwavering and unquestionable loyalty to the United States. Federal employment positions are rarely available to non-citizens, and even dual citizens may have difficulty meeting this requirement.

Investigators consider personal or professional relationships with foreign agents suspect. Residing outside the United States for two or more years out of the last five can also lead to an automatic disqualification.

Investigators may flag anything in a candidate’s background suggesting foreign influence or dual loyalty. An appeal may be the only opportunity to counter those claims, so having a security clearance lawyer in your corner can make the difference.

Criminal Convictions

Prior criminal convictions are automatic disqualification for security clearances, regardless of the severity or relevance of the crime. Investigators believe that being involved in criminal activity stains a candidate’s character, making them unsuitable for security clearance. Investigators consider when, where, or what the crime was irrelevant to disqualification.

Security Violations and Personal Conduct

Previous security violations where a candidate improperly handled secure information will severely hamper their ability to maintain or acquire security clearance. There are rarely second chances when it comes to secure information and the federal government.

Personal conduct, meanwhile, is much broader in scope. The investigators will look for behavior that shows “questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations.” Lying on the required forms is a surefire way for investigators to disqualify candidates automatically.

Also, during the background investigation, interviews with past co-workers, friends, colleagues, etc., may be conducted to get a sense of a candidate’s conduct. If their outlook on a candidate is negative and verifiable, that can lead to an automatic disqualification.

When these automatic disqualifications occur, contacting a security clearance lawyer to understand the denial and prepare an appeal is one of the best ways to overcome this setback.

Security Clearance Appeals Process

There are still options to obtain a security clearance, whether the reason for denial was one of the reasons above or something else. In these instances, the denial decision can be appealed. One of the first things to look for is the adjudicator’s Letter of Intent (LOI) to deny the clearance.

The LOI is a preliminary, tentative decision. It will contain a “Statement of Reasons” (SOR) detailing the issues underlying the decision. The LOI also contains instructions on how to request a copy of the investigative report on which the decision to issue the LOI was based.

From here, security clearance appeals diverge based on whether the applicant was a federal contractor or a civilian or military employee.

Federal Contractor Appeals

Industrial applicants (federal contractor personnel) can submit a written rebuttal to the SOR and request a hearing. If the applicant does not dispute the SOR, the Defense Counterintelligence and Security Agency Adjudicating and Vetting Services (DCSA AVS) will deny the clearance.

If the applicant rebuts the SOR without requesting a hearing, DCSA AVS sends a File of Relevant Material (FORM) that will be presented to an Administrative Judge (AJ) for a clearance decision based on the written record. The applicant can submit a written response to the FORM, which will also be presented to the AJ.

If the applicant requests a hearing, the applicant (with or without an attorney or personal representative) may present witnesses and other evidence at the hearing. The applicant may also cross-examine witnesses and challenge evidence from the DCSA AVS Department Counsel (an attorney representing DoD).

The AJ makes a written decision and sends a copy to the applicant. DCSA AVS is then directed to grant or deny the clearance following the AJ’s decision. If the clearance is denied, the applicant is notified in writing and advised of their right to appeal the decision. It is possible that an adjudicator could grant the clearance after reviewing the applicant’s response to the SOR, thus preventing the need to present the case to an AJ.

Civilian and Military Process

DoD civilian employees and military personnel can submit a written rebuttal to the SOR but are not entitled to a hearing. AVS will deny the clearance if the applicant does not refute the SOR. If they submit a written rebuttal to the SOR, the adjudicator will decide to grant or deny the clearance in light of the information submitted in the rebuttal. If a decision is made to deny a clearance, the applicant is notified in writing and advised of their right to appeal.

Personnel Security Appeals Board Process

Any applicant may appeal a clearance denial or revocation to the federal agency’s three-member Personnel Security Appeals Board (PSAB). PSAB makes decisions by a majority vote.

Industrial applicants are limited to submitting a written appeal, but the PSAB will not consider any new evidence. The appeal must be based on procedural errors by the Administrative Judge. A security clearance lawyer with deep knowledge of the procedures involved can best make that determination in an appeal.

In industrial cases, the DoD Department Counsel can appeal the favorable decision of an AJ. The PSAB writes a decision addressing the material issues raised on appeal and sends a copy to both parties. At that point, the PSAB can affirm, reverse, or remand a case to the original Administrative Judge with instructions for further review. The PSAB decision is final whether the original decision is affirmed or overturned.

On the other hand, DoD civilian employees and military personnel can submit a written appeal with supporting documents directly to their PSAB or request a personal appearance before an AJ. In either case, new evidence can be submitted. Contacting a skilled security clearance lawyer is essential at this step in finding that new evidence and submitting it properly.

Those who appear before an AJ can explain their case (with or without an attorney or personal representative), submit supporting documents, and present witnesses. However, it is not a hearing; there is usually no opposing counsel.

After this appearance, the AJ evaluates all the information and makes a written clearance recommendation to the applicant’s PSAB. The PSAB is not required to follow the AJ’s recommendation. The PSAB notifies the applicant of their final decision and includes reasons for it.

Applicants who are denied a clearance, with or without an appeal, are barred from applying for a security clearance for one year. Their employers can apply for reconsideration a year after the final decision.

Fighting for You, Fighting for Your Career

Staring down a security clearance denial or revocation can put your career on hold or threaten it entirely. With almost one million security clearance applications processed annually, the careful consideration of your case is something most agencies are unwilling to offer. Whether it was an automatic disqualification or an unfounded concern of the adjudicator, your livelihood is now on the line. How can you ensure your case is fully heard?

A reliable, steadfast security clearance attorney from Daniel Conway & Associates can help you receive fair treatment in your security clearance appeal. They can inform you of your rights in an appeal, track down evidence to refute claims, and question whether proper procedures were followed.

The complex decision-making process involved in security clearance appeals can be beyond the knowledge of civilians or service members. The stress that comes with security clearance denial taxes an individual as well. Pursuing your appeal with an experienced security clearance attorney is preferred. Not having to dig into administrative procedures, track down evidence, or strongly write rebuttals, is a weight of our client’s shoulders.

With worldwide reach and reputation, see how we can help you in a free consultation.