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In the BLOG

Criminal activity and security clearances

A criminal record, or even allegations that you committed a crime, may prevent you from getting a security clearance.  The federal government takes the position that a history or pattern of criminal activity indicates that a person has poor judgment and is unreliable and untrustworthy.  However, federal agencies may grant a clearance application if there are mitigating factors – such as acquittal or evidence that you are unlikely to participate in criminal activity in the future.

Can I get a security clearance if I have a criminal record?

Under the adjudicative guidelines for security clearances, the government may deny or suspend your clearance if:

  • There are allegations that you committed a crime, even if you weren’t formally charged.
  • You admitted to committing a crime, even if you weren’t formally charged.
  • You committed a single serious crime or multiple lesser crimes.

What are mitigating factors?

However, depending on the circumstances, the following factors may mitigate concerns about your criminal history:

  • The crime was an isolated incident.
  • You were pressured or coerced into committing the crime and those pressures are no longer present in your life.
  • The criminal conduct was involuntary.
  • You were acquitted.
  • There is clear evidence of successful rehabilitation.

What is evidence of successful rehabilitation?

Evidence of successful rehabilitation may include:

  • Passage of time without additional criminal activity
  • Restitution
  • Compliance with parole or probation
  • Job training
  • Higher education
  • Good employment record
  • Positive community involvement

Presenting mitigating evidence of rehabilitation can make all the difference.

In a 2020 case, the Department of Defense (DOD) Defense Office of Hearings and Appeals (DOHA) denied a security clearance based on criminal conduct.  The applicant was under court supervision for an alcohol-related criminal incident that occurred in September 2018, and he had not completed any of the terms of his sentence.  There was also an outstanding bench warrant for his arrest for failure to attend a required court appearance.

However, an applicant in another 2020 case received his clearance even though he had more criminal incidents.  Between 2001 and 2012, the applicant was cited, charged, or arrested for 11 separate incidents involving moving violations, failure to appear, and driving with a suspended license.  He had six driving while intoxicated (“DWI”) arrests between 2006 and 2013.  The applicant also pleaded nolo contendere for speeding in March 2018.

Nonetheless, the DOHA administrative judge decided to grant the applicant’s clearance based on evidence of rehabilitation.  At the hearing, the applicant testified that he made major life changes after the deaths of his cousin and grandmother in 2013.  Since that time, the applicant moved to accept a new job, obtained two academic degrees, and became actively engaged in volunteering and other community service.

How can an attorney help me appeal a security clearance determination?

If you’re concerned that your criminal will impact your security clearance, it may be helpful to consult an employment attorney.  An experienced employment attorney can advise you about whether you need to disclose an arrest, charge, or conviction to your agency, and how to mitigate security concerns.

If you received a Letter of Intent to deny, suspend, or revoke your clearance, Alan Lescht and Associates, P.C., can help.  Our attorneys will work with you to respond to the charges against you and gather evidence of mitigating conditions.  We represent federal government employees and contractors.

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