The Security Clearance Process For Defense Contractor Employees

This article is designed to give individuals an overview of the security clearance process, from beginning to end, which will leave the reader with a clear understanding of what to expect should he or she decide to seek a security clearance. This article only deals with defense contractor employees and collateral security clearances, (i.e., security clearances at the Confidential, Secret and Top Secret levels.)

Who is eligible to apply for a clearance?

An individual cannot apply for a clearance on his or her own. He or she must be “sponsored” for the clearance by their defense contractor employer. They can only be “sponsored” if the work they will perform requires access to classified information.

Only U.S. citizens, native born and naturalized, can be granted a clearance. In very rare circumstances, a non-U.S. citizen may be issued a Limited Access Authorization for access to classified information. For the average individual not possessing some unique skills, this exception is not available.

The Process

If your employer decides you need access to classified information to perform your job, they submit a request for an investigation through JPAS, an automated system that keeps track of all individuals possessing or seeking a security clearance. Your employer will also ask you to complete a security questionnaire (SF-86). This form is now electronic so in most cases you will have to complete an online version known as an e-QIP. Once you complete the e-QIP and it is sent to the Defense Industrial Security Clearance Office (DISCO), the information you provided on the e-QIP is part of your permanent record. In plain language, you are stuck with your answers to the questions on the e-QIP. It is for this reason you should read each question very carefully and provide truthful answers.

The e-QIP and request for investigation ends up at the Office of Personnel Management (OPM), a government agency which conducts most of the background investigations for DoD contractor employees seeking a security clearance. Depending on the level of security clearance you are seeking, and other variables, the investigation may include an OPM investigator interviewing you.

When the investigation is complete, OPM sends your investigative file to DISCO. In the vast majority of cases, DISCO grants the clearance request, and notifies your employer of its decision. If DISCO is unable to make the affirmative finding that it is clearly consistent with the national interest to grant you a clearance, they refer your case to the Defense Office of Hearings and Appeals (DOHA). Once at DOHA, your file is further reviewed. DOHA may send you interrogatories (i.e., written questions) seeking further information. In some cases, DOHA will grant your security clearance request with no further action. However, if DOHA decides it too cannot make the affirmative finding that granting your security clearance request is clearly consistent with the national interest, they will issue you a Statement of Reasons (SOR) detailing their concerns.

In order to continue the processing of your security clearance request, and have your case assigned to a DOHA Administrative Judge to make the final decision, you must file a notarized answer to the SOR within the time limit set by DOHA. The answer must admit or deny each allegation in the SOR. Also, as part of your answer, you are required to inform DOHA whether you want your case decided on a written record, or after a Hearing before the DOHA Administrative Judge. If you decide to go with the first option, the Administrative Judge will decide your case based on written submissions by you and the DoD attorney, known as a Department Counsel (DC). With this option, you never get to meet the DOHA judge face-to-face to plead your case. If you request a Hearing, the Administrative Judge will send you a Notice of Hearing, informing you of the date, time and place of the Hearing, at least 15 days before the Hearing date. At the Hearing, the DC will present the Government’s evidence supporting the allegations in the SOR, and you will have the opportunity to testify, offer written evidence that supports your case, elicit testimony from witnesses you choose to bring to the hearing, cross examine any Government witnesses, and finally, to give a closing argument where you try to persuade the Administrative Judge that you should be granted a security clearance. Keep in mind that the DC is allowed to cross examine you and any of your witnesses.

It should be noted that in the vast majority of cases, the final decision to grant or deny a security clearance is a discretionary one, which will be based on the unique facts of the particular case and the DoD adjudicative guidelines. However, there is one exception. Under current law, if you are considered by the adjudicator or the Administrative Judge to be “an unlawful user of a controlled substance or… an addict,” you are automatically barred from receiving a DoD security clearance. (This bar is not limited to users of illegal drugs; it also applies to users of legal, prescription drugs if such use is abusive.) This means the adjudicator and Administrative Judge have no discretion to grant you a security clearance; your request must be denied. As a practical matter, if you immediately stop this activity when first applying for the security clearance, the chances are good that by the time the final decision is made in your case, you will no longer be subject to this automatic bar.

After the Administrative Judge issues his or her decision, either you or the DC can appeal the decision to the DOHA Appeal Board. The Appeal Board cannot accept any new evidence; it only reviews the evidence that was offered at the DOHA Hearing. It is therefore essential that all the evidence you want to be considered by DOHA be offered before or at the hearing. The Appeal Board reviews the Administrative Judge’s decision for legal error only. The end result of this is that it is very difficult to get the Appeal Board to overturn an Administrative Judge’s decision not to grant a security clearance request.

If the Administrative Judge decides you should not be granted a security clearance and you don’t appeal the decision, you must wait one year from the date of the Administrative Judge’s decision to reapply for a security clearance. If your employer initiates the process for you, DOHA will send you a letter asking you, in essence, what has changed since the Administrative Judge’s decision that would lead DOHA to conclude a different result might be reached this time. If you can convince DOHA to reopen the case, the process starts all over again.