How to Guide Your Employee During
the Clearance Process
Brian Kaveney
bkaveney@armstrongteasdale.com
Phone: 1-800-243-5070 x7685
“But the SF 86 is just a form, right? I can
provide more information later...” Bad Idea!
 It all starts with a form
 What is the cost of a mistake?
• Damage to your reputation with your customers
• Indelible mark to your reputation
• One person, one comment on a form…
• Lost profits
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An Effective FSO saves time, money, and
frustration
 Anticipate issues to be more efficient in your job
 Prevent Problems
 Best Practice:
− Have employee draft and revise complete and accurate
information tied to mitigating conditions and whole
person concept to explain or mitigate
− Consider most efficient way to navigate the DoD CAF
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Effective FSO’s Tools to Preempt Personnel
Clearance Issues
 Provide SF 86 worksheet to employee as early as possible
 Encourage the use of the SF 86 Additional Comments
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Section
Provide a sample Statement of Reasons
Provide a sample Interrogatory
Identify and apply relevant mitigating conditions
Show Applicant link to DOHA cases
Sequestration and Security - Industry
 Downturn and reduction in funding for future and existing
contracts:
• Result: Reduced personnel
• Remaining employees receive more responsibility
• Increased Security Violations and Classified Spills
• Security will become more active:
− More investigations and more computer sanitizations
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Sequestration and Security – Government
 DSS changed the PR process from 90 days to 30 days prior
to the expiration date of the investigation
• More changes in the coming months
 Salary Creep – affects company profits
• Downgrades and reductions
 Furloughs
 Reduced Funding:
• Example: More Hearings by VTC rather than in person
• Consequence: Less persuasive by VTC rather than in
person?
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Top Reasons for Rejection by DSS and OPM
 Lack of correct employment information
 No SSN for spouse or co-habitant
 Lack of complete and accurate information for relatives
 Missing Selective Service registration info.
 Lack of complete information concerning debts or
bankruptcy
 Discrepancy with applicant’s place of birth and DoB
 Missing or Discrepancy in Reference Information
 Missing or Discrepancy in Employment Information
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Better to disclose
 Failure to disclose will trigger additional adjudicative
guidelines
• Example: Even though the employee thinks he will resolve
the potential lien on his house, it is better to disclose
• Avoids triggering additional adjudicative guidelines
• The Truth is ALWAYS Best
• If RESOLVED, inform the government, and it can be a nonissue.
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Who are we protecting?
 Everyone associated with NCMS has a responsibility to the
warfighter
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Transition of DISCO to the Department of
Defense Central Adjudicative Facility (DoD
CAF)
• Complete consolidation into a single organization:
− The Defense Industrial Security Clearance Office (DISCO),
− Army Central Clearance Facility,
− Department of the Navy CAF,
− Air Force CAF,
− Joint Staff CAF, Washington Headquarters (WHS) CAF, and
DOHA
• Initial operational capability by the beginning of FY13
• Full operational capability by the start of FY14
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DoD CAF Status
 Total Pending Cases as of Spring of 2013
• 15,000 industry backlog
• Personnel Security Adjudicative Function Consolidation for
Greater Efficiency
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What is the $ of a mistake?
 Rework to an SF 86 from a missing SSN to a key security
concern that could have been mitigated or explained:
• Based on a blended avg. salary for an FSO and executive or
key employee:
− 4-8 man hours or $140.00 - $160.00 = $560.00 - $1,280.00
− Extra costs for the FSO, employee, and admin. costs
− Employee must “redo” the questions section and the relative
section and print out the new signature forms
− FSO will then have to review the submission, load forms,
and spend additional time in JPAS, etc.
 Can pull individuals away from direct charge time (profit)
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What is the $ of a mistake?
 Waste of government resources
 Increases government costs
 Create backlog in the process to the detriment of others
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Given the current environment, how can an
FSO be effective during the Adjudication
Process
 Government’s Examination of the Applicant’s Life
 Weighs a Number of Variables Known as the “Whole
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Person Concept”
Evaluates the Relevance of the Individual’s Conduct
Considers the Nature, Extent and Seriousness of the
Conduct
Considers the Frequency and Recency of the Conduct
Considers the Age and Maturity of the Individual at the
Time
Consider Adjudicative Guidelines
 DoD CAF Relies on 13 Adjudicative Guidelines when
Determining Eligibility
• Allegiance To The U.S.
• Foreign Influence
• Foreign Preference
• Sexual Behavior
• Personal Conduct
• Financial Considerations
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Adjudicative Guidelines cont.
• Alcohol Consumption
• Drug Involvement
• Emotional, Mental, and Personality Disorders
• Criminal Conduct
• Handling Protected Information
• Outside Activities
• Misuse of Information Technology Systems
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Reporting Requirements
 Change in Personal Status
• Marital status – married, divorced, separated
• Cohabitation – living in a spouse-like relationship; intimate
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relationship, or engaged
Foreign Travel
Foreign Contacts
Security Violations
Suspicious Contacts
Reporting Requirements
 Adverse Information
 Arrests regardless of whether you were convicted or
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charges were dropped
Financial difficulties including bankruptcy, garnishment or
judgment against wages, foreclosures, short sales, voluntary
repossessions
Emotional or psychological problems
Alcoholism or abuse of other legal drugs; use of illegal
drugs
Other involvement with the legal system; target of legal
action such as being sued
Reporting Logistics
 What do you Report?
• Arrests
• Financial Issues
• Foreign Contacts
• Foreign Military
• Change in Marital Status
• Foreign Travel
• Cohabitation
• Drug Involvement
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Problems do not get better with age . . .
 Many individuals face problems with inter-personal
relationships, depression, alcohol, family issues, or similar
difficulties at some point in their lives
 The vast majority of those seeking professional help for
their problems do not suffer damage to their career
 Rather, professional help often allows individuals to
recognize problems and take an active step in resolving
those problems
 EARLY INTERVENTION and thorough reporting are
often the keys to early resolution
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FSO Challenges
 Implementing proper and effective procedures
 Working in a FOCI environment
 Developing a robust and effective security program
 Ensuring key employees receive required/critical
clearances to support the company
 Dealing with competing priorities
 Spearheading deadlines for clearances
 Serving as the link between employees and the clearancegranting authority
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FSO’s Tools to Preempt Personnel Clearance
Issues
 Provide SF 86 worksheet to employee as early as possible
 Encourage the use of the SF 86 Additional Comments
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Section
Provide a sample Statement of Reasons
Provide a sample Interrogatory
Identify and apply relevant mitigating conditions
Show Applicant link to DOHA cases
FSO: Saving Government Resources by
making the government’s life easier
 Tools to Assist the Government:
• Provide ALL requested information to adjudicators
• Use Additional Comments Section to assist OPM
investigator, particularly where mitigation is compelling
• Utilize attachments to provide a complete picture for the
government
= DoD CAF . . . DISCO, OPM, & DOHA
 Example: Detailed information about Escaping through
Iraq
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SF 86
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SF 86
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SF 86
Additional comments
Prevention
opportunity
OR
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TROUBLE
Additional Reasons for e-QIP Rejection
 Start date or current employer information incorrect
 Selective service number missing
 Status of debts—incomplete information on financial
questions (e.g., names, addresses of creditors) missing
 Missing entries (or gaps) in employment, education, and/or
residence
 Missing citizenship information for foreign-born family
members
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Additional Reasons for e-QIP Rejection
 Applicant verifying self-employment and/or employment
periods
 Missing fingerprint cards and/or signed releases
 Discrepant information between e-QIP and fingerprint
cards (e.g., date or place of birth) and
 Not providing SSN and/or POB information for adults
currently residing with applicant (co-habitant)
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Loss of Clearance: Main Causes
 The Busy Executive = Inadvertent failure to disclose
 The young, key Engineer = Non-Disclosure due to lack of
attention to detail
• Example: Financial Issue
 Overseas Property = Foreign Influence issues
• Could be dealt with before submission of SF 86
− Example: Close the bank account to prevent a specific
allegation in a Statement of Reasons
− Demonstrate the U.S. Citizen is firmly rooted in the U.S.
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NISPOM
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Complete and Accurate
“The FSO or designee shall … review the application
solely to determine its adequacy and to ensure that necessary
information has not been omitted. The FSO or designee shall
provide the employee with written notification that review of
the information is for adequacy and completeness,
information will be used for no other purpose within the
company, and that the information provided by the employee
is protected by [the Privacy Act]. The FSO or designee shall
not share information from the employee’s SF 86 within the
company and shall not use the information for any purpose
other than determining the adequacy and completeness of the
SF 86.”
NISPOM
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ISL 2006-01 #5. (2-202)
Completing the Electronic
Version of the SF 86
“The electronic version of the SF 86 shall be completed
jointly by the employee and the FSO or an equivalent
contractor employee(s) who has (have) been specifically
designated by the contractor to review an employee’s SF
86. ” Section 2-202.
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Proactive Measures for the FSO
 Explain the adjudicative guidelines to identify concerns
 Conduct a Prescreen interview
 Explain the investigation and adjudication process
 Use security education and awareness training program
 Encourage honesty and full disclosure
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Proactive Measures for the FSO
 Provide:
• (1) Sample Statement of Reasons,
• (2) Sample Interrogatories
• (3) Opinion from an Administrative Judge denying a
clearance,
• (4) Opinion from an Administrative Judge denying a
clearance, and
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STATEMENT OF REASONS
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STATEMENT OF REASONS
Allegation A
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STATEMENT OF REASONS
Allegation B
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STATEMENT OF REASONS
Result of the failure to disclose by the employee
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How will the DOHA Judge view this?
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DECISION OF JUDGE
“Applicant has worked for government contractors
and held a clearance for about 22 years. Her
misconduct was not the product of immaturity or
inexperience.”
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DECISION OF JUDGE
“She is very dedicated to her job and she performs it
with dedication and skill. Unfortunately, she has
demonstrated that she will engage in deception to
protect her job.”
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DECISION OF JUDGE
“Applicant claimed that she omitted mention
of her departure from XTON Systems in April
of 2010 because she forgot about it. I find this
explanation implausible and unconvincing.”
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How DOHA Judges View
“Failure-to-Disclose” Cases
 The only people who can prevent the failure to disclose are
the FSO and the employee.
 Someone who has lied on his or her SF 86 should not hold a
clearance.
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USA TODAY
Continued from Page 1B
years in prison.
Today, at 42, he is out of prison
and working in a white-collar job
in the defense industry. He
remains on parole until 2006. As
a convicted felon, he can’t vote in
many states. But under federal
law, he can and does hold a
government-issued security
clearance, a privilege that allows
access to sensitive classified
information off-limits to most
Americans.
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Where are we today?
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COMMON PROBLEM: Inadvertent Failure
to Disclose by Busy Executive
 Raises Guideline E – Personal Conduct
• A.
In 2005, you failed to properly inform your
Chairman & CEO that you had worked with a non-profit
entity which created a potential conflict of interest for you
and your work with your current employer at the time
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Could This Have Been Avoided?…YES!!
 FSO - Get the SF 86 (and worksheet) to the key employee,
including executives, as early as possible
 FSO - Advise the key employee to allow sufficient time to
gather information and complete the SF 86
 FSO - Advise the key employee to use the Additional
Comments section of the SF 86
 FSO - Show example Statement of Reasons to the key
employee
 Here is where we can help the FSO . . . to reinforce the
message
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Could This Have Been Avoided?
 Our Clients and companies that use this approach . . .
• Never have received Interrogatories
• Never have received a Statement of Reasons
• Never gone to a hearing
 Save their company time, money and frustration
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Conflicting Facts: Conditions that May
Mitigate Security Concerns
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FSOs Advising Executives
 Encounter multiple attempts to receive a “complete” SF 86
 RECOGNIZE CLUES:
• Having to initiate the investigation multiple times
• May show that the executive does not want to deal with a
situation
• Could be a difficult situation for the executive to reveal
− “ABC Company’s CEO Heard the Clock Tick.”
− “XYZ Company’s CFO Pushed Out after acquisition.”
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FSO SOLUTIONS
 Be diplomatic
 Have an early dialogue
 Ask for supporting documents
 Convey that more information is often better
 Reference the mitigating conditions
• Example: Foreign Influence
• Explain how mitigating conditions apply
 Recommend outside counsel
• Attorney Client Privileged Communications
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INTERROGATORIES – What to do
“Additional information is needed from you to assist
this office to determine whether granting or continuing a
security clearance eligibility is in the national interest. You
must respond and answer the interrogatories within twenty
(20) calendar days from your receipt of this letter. ”
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INTERROGATORIES
 Use this Opportunity to Address all Security Concerns
• Provide all requested documentation;
• Explain any disqualifying conditions including
inconsistencies in the record; and
• Prove that Applicant has mitigated security concerns and
should receive clearance.
“Prompted by information from employee
given during the interview with the Authorized
Investigator for the Department of Defense.”
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Why wait?
There is no reason to wait: Explain &
Mitigate
 Spot Recurring Problems:
• Example: Young engineers in college
 New Hires and Executives:
• Provide SF 86 well before clearance
is needed
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Pre-employment Clearance Action
“If access to classified information is required by a
potential employee immediately upon commencement of their
employment, a PCL application may be submitted to the CSA
by the contractor prior to the date of employment provided a
written commitment for employment has been made by the
contractor, and the candidate has accepted the offer in
writing. The commitment for employment will indicate that
employment shall commence within 30 days of the granting of
eligibility for a PCL.”
NISPOM
2-205
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Timing the SF 86 Submission
 As soon as the offer letter is signed, send the SF 86
 See NISPOM 2-205 Pre-employment Clearance Action
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Employment Issues:
Offer Letter Language
John Doe
123 Any Street
St. Louis, MO 63102
Dear Mr. Doe:
This position requires that your Top Secret clearance transfer to (Company)
within a reasonable period of time (approximately two weeks) and that you
maintain your Top Secret clearance. If your clearance is denied, suspended or
revoked for any reason or does not transfer, you will not be able to work in
this position. Your continued employment with (Company) in a position not
requiring a security clearance would depend on the availability of such a
position for which (Company) will determine if you are qualified.
Very truly yours,
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Offer Letter Language:
Start Date and Background Investigation
We would like your employment to begin within 30 days of
you being issued the appropriate personnel clearance. This offer is
contingent upon a favorable completed Single Scope Background
Investigation (SSBI) and Top Secret clearance (or favorable
completed National Agency Check (NAC) and Secret clearance)
granted through Defense Security Services (DSS). Before
(Company) can conduct a background investigation, we must
receive your signed offer of employment and your signed Consent
Form. For that reason, please carefully read, “A Summary of Your
Rights Under the Fair Credit Reporting Act” and carefully read,
sign, and return the “Disclosure and Consent Concerning
Consumer and Investigative Consumer Reports” to Human
Resources at (Address).
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Offer Letter Language
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FSO’s Proactive Steps
 As soon as the offer letter is signed, send the SF 86; and
• See NISPOM 2-205
• Include this in the offer letter
 Send the link and a worksheet as soon as the offer letter is
sent
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Representative Case:
Foreign Influence and Foreign Preference Allegations
 Mother diagnosed with cancer in Taiwan
• Renewed Taiwan ID Card & Passport to access accounts in
Taiwan for parents
− Purpose: to provide medical care for mother
• Applicant did not have a clearance at the time
 Mitigation:
• Closed the accounts opened by his father
• FSO maintains passport
• Traveled on his US passport
 Key: FSO and managers were proactive from the beginning
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Representative Case:
Effective Chief Security Officers & FSOs
 Government issued a favorable security clearance ruling for
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a key engineer employed by an engineering client
A naturalized U.S. citizen originally from Middle East
Ties to foreign nations, including real estate holdings
Demonstrated deep loyalty to the United States in various
ways
Demonstrated strong compliance program at company and
history of strong industrial security program
What are the benefits for the company and
the country?
 Effective engineer to continue to work on key programs
 FSO demonstrated strength of security program to the
government
 Knowledge preserved for certain key programs
 Saved time and resources with the existing and future
contracts
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Representative Case:
Providing Clear Evidence in a Complex Situation
 A field service engineer, who had been deployed to combat zones
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in Iraq and Afghanistan
Won reinstatement of her revoked security clearance within 72
hours of submitting evidence to the government
Shocked to learn about the revocation because neither she nor
her company had received notice
In less than six weeks, gathered dozens of sworn statements from
personnel all over the world and prepare a detailed, 20-page
response
Convinced government of the young engineer’s integrity and
suitability to handle classified information
The government quickly restored the clearance in August 2011
without requiring a hearing or any further documentation to
obtain the right result
Return on Investment (ROI)
 Complex Situation streamlined
 Saved the reputation of the company with the government
and the prime
 Saved costs by avoiding further adjudication (hearing)
 Demonstrated to the company employees that the company
will stand by those who deserve assistance in the right
situations
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Proactive Approach during Sequestration
 Saves your company money and resource
 Reinforces you as a leader to your leadership that you are
cost-effective and forward thinking
 Saves the company time, money and frustration
 The consequences of a delay and damage to a reputation are
costly
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It all starts with a form…
 Image Management
 Relationships with your customers
 One form can get you in trouble
 Cost of re-submitting
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What must you have in the current
environment?
 Preventative mindset
 Investigation Capabilities
 Resolve issues quickly and efficiently
 Advisors who understand of FCL issues, including FOCI
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An effective FSO strives to
save time, money, and
frustration
Brian E. Kaveney, Partner
Armstrong Teasdale LLP
7700 Forsyth Blvd., Suite 1800
St. Louis, MO 63105
Direct: 314.259.4757 | Fax: 314.552.4830
Main Office: 314.621.5070
1-800-243-5070
bkaveney@armstrongteasdale.com
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