Understanding Adjudicative Guideline J

A security clearance attorney explains Guideline J of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.

SAN DIEGO, CALIFORNIA – Keeping your nose clean by steering clear of criminal activity is a requirement in many lines of work, and that’s certainly the case when your job requires security clearance.

As part of our ongoing blog series where we explain the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, today we focus on Guideline J- Criminal Conduct.

The reasoning behind denying an applicant clearance or revoking someone’s clearance under Guideline J is that criminal activity creates doubt about a person’s judgment, reliability and trustworthiness, according to the U.S. Department of State. It calls into question a person’s ability or willingness to comply with laws, rules and regulations.

Clearance can be denied or revoked if a serious crime is committed or the person has committed a number of lesser offenses. Even an allegation or admission of criminal conduct – regardless of whether formal charges ever were brought – can be grounds for having clearance denied or revoked.

You might be surprised to know having a criminal history doesn’t always automatically render you ineligible for security clearance, attorney John Griffith says. There are mitigating circumstances that can be considered, including:

  • Enough time has elapsed since the criminal behavior happened; it happened under such isolated conditions that recurrence is doubtful; or it casts no doubt on the individual’s reliability, trustworthiness or judgment.
  • The person was pressured or forced into committing the act, and those pressures no longer are present.
  • Evidence exists that the person didn’t commit the offense.
  • Evidence exists of successful rehabilitation, such as a track record of not being involved in criminal activity; remorse or restitution; job training; higher education; a favorable employment history; or constructive community involvement.

A review of numerous security clearance denial cases in 2013 revealed criminal conduct seldom is the only reason a person has clearance denied or revoked. Frequently, the reasons for denial also include alcohol, drugs or sexual behavior.

Such is the case with the October 2013 decision to deny an applicant’s security clearance application based on his sexual behavior, criminal conduct and personal conduct. The applicant admitted to having an alcohol problem and a prostitution-related sexual addiction. He claimed to have hired prostitutes more than 100 times during a six-year period that ended in April 2013.

The applicant, while never convicted of soliciting prostitution, admitted to committing these criminal offenses.

Ultimately, Administrative Judge Mark Harvey denied the applicant’s application because although some mitigating circumstances existed, evidence in favor of denying approval was stronger at the time.

The applicant admitted to committing “about 100 misdemeanor-level criminal offenses when he hired prostitutes on at least a monthly basis from February 2007 until April 2013,” Harvey’s decision stated. “His criminal conduct is recent and continued after he began therapy in February 2012. In August 2011, he told the (Office of Personnel Management) investigator that he did not intend to engage in future sexual activity with prostitutes. Nevertheless, he did so. There are unresolved questions about applicant’s reliability, trustworthiness and ability to protect classified information because of his pattern of criminal conduct over a six-year period. More time without criminal conduct is necessary to fully mitigate security concerns.”

When you apply for security clearance and the government identifies a reason or reasons to deny the application, you will receive a Statement of Reasons. If you already hold a clearance and the government intends to revoke it, you will be sent a Letter of Intent. Each of these documents outlines the reasoning behind the government’s actions, and each affords you the opportunity to respond.

“How you respond to these documents can mean the difference between gaining or keeping your clearance, and having to find another line of work,” Griffith says. “We recommend consulting an attorney who has experience in security clearance law to help you formulate a response that gives you the greatest chance of continuing your livelihood.”

Call us if you need assistance with your security clearance situation. We can help.