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How to appeal denial of a security clearance

I was at Kirtland Air Force Base in Albuquerque, N.M., recently when a young airman recognized me at the base exchange and asked a great question about how to handle a security clearance denial.

Let me share with you what I told him about the security clearance process.

In 1988, the Supreme Court ruled that no one has a right to a security clearance. The burden is on you to prove you are a person whose history, both professional and personal, affirms loyalty to the U.S. Factors evaluated include strength of character, honesty, reliability, discretion, sound judgment, potential for coercion, and willingness and ability to abide by regulations governing the use, handling and protection of classified information.

Security clearances are denied and revoked all the time, and not having one can seriously impact your military duties.

You do have options if you are denied a clearance or have one revoked. In working with clients who are preparing for their investigation or have security clearance problems, I came up with the HAM (honesty, accuracy and mitigation) sandwich view of security clearance life.

First, be honest. If you are not honest in the security clearance process, you simply will not receive a clearance. Second, if there are inaccuracies in your application or interview, you’ll have to explain why they are good faith errors and not deliberate evasions or lies. Finally, if you have problems in your background, you often can mitigate the problems.

An adjudicator makes the initial determination on whether to grant or revoke a security clearance. The applicant is evaluated using the “whole person” concept. A host of security concerns or disqualifying conditions can cause adjudicators to recommend denial or revocation. Some of the most common relate to alcohol or drug abuse, financial irresponsibility and criminal conduct.

Concerns about the misuse of government information technology systems also are starting to become prevalent. Anything from downloading pornography to viewing a video on YouTube on your lunch break could be a cause for revocation of a clearance, not to mention disciplinary action.

The good news is that most people who get a security clearance keep it. But even if you receive word that your clearance has been denied or revoked, you have the right to appeal.

A statement detailing the reason for denial or revocation should be supplied to you, with procedures for filing an appeal. If you believe the information gathered about you during the investigation was misleading or inaccurate, appealing gives you the opportunity to correct or clarify the situation.

Here is where mitigation makes its way into our sandwich. Your goal in the appeals process is to persuade the decision maker that the disqualifying condition has been mitigated or alleviated.

Perhaps the financial problems that caused your denial occurred years ago and you’ve had stable finances since. Or maybe your financial problems came about because of a sudden and very expensive illness. Bankruptcy is not by itself a reason to deny a clearance; it’s what led you to bankruptcy and what you’ve done with your finances since that matters.

If you think there may be a situation in your past that could cause a problem during the investigation process, a lawyer experienced in security clearance cases can prescreen your application. This will also allow you to be protected by attorney-client privilege if you reveal information that could hurt you.

If you received a letter of intent to deny or revoke a clearance from your agency, you have various routes to appeal. The process differs from case to case and agency to agency, but the deadlines are always strict and unforgiving.

If you find yourself having problems with your security clearance, remember the HAM sandwich — honesty, accuracy and mitigation. Following these pointers should help you get and keep one of the most valuable assets achieved through your military service: a security clearance.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com/), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.