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| Rebutting and Appealing Security Clearance Denials |
by William Henderson for ClearanceJobs.com - November 14, 2008
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The Defense Industrial Security Clearance Office (DISCO) is a Central Adjudication Facility (CAF) that is part of the Defense Security Service. DISCO processes about 150,000 personnel security clearances each year for DoD contractors and contractors of 23 other federal agencies. These are referred to as industrial cases. DISCO favorably adjudicates about 75% of these cases after the investigations are conducted by the Office of Personnel Management. If DISCO cannot affirmatively find that it is clearly consistent with the national interest to grant or continue a personnel security clearance, the case is referred to the Defense Office of Hearings and Appeals (DOHA) for further review. DOHA has the option to request further investigation, send out written interrogatories, interview the applicant, and/or require the applicant to undergo a psychological evaluation. Of the approximately 35,000 to 40,000 cases received each year, DOHA favorably adjudicates about 96% and directs DISCO to grant or continue the clearances. DOHA makes preliminary decisions to deny or revoke clearances on the remaining 4%. When this occurs, DOHA sends the applicant a “Statement of Reasons” detailing the specific reasons why it intends to deny or revoke the clearance and advises the applicant of their right to submit a written rebuttal and their right to a hearing.
The Department of Energy (DOE) has its own Office of Hearing and Appeals that makes initial decisions and handles appeals on industrial and non-industrial security clearances. DOE’s procedures are similar to DOHA’s.
THE STATEMENT OF REASONS (SOR)
About 10% of applicants who receive an SOR drop out of the process by not responding to the SOR; their clearances are denied or revoked without further action. For an applicant who chooses to rebut the SOR, the written rebuttal must be received at DOHA within 20 days from the date the applicant receives the SOR. This rebuttal can be made with or without a request for a hearing. Applicants may request an extension of time to file a rebuttal to the SOR, but they must have a good reason. The rebuttal must include a detailed written answer that admits or denies each allegation in the SOR and provides information that rebuts, explains, or mitigates each allegation.
Upon receipt of the SOR rebuttal, DOHA sends the applicant a File Of Relevant Materials (FORM). The applicant has 30 days from receipt of the FORM to submit a written response to the FORM, setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate. If a review of the rebuttal to the SOR and/or response to the FORM determines that allegations are unfounded, or evidence is insufficient for further processing, DOHA withdraws the SOR and DISCO grants or continues the clearance. Otherwise, the case is assigned to a DOHA Administrative Judge (AJ) who will consider the case with or without a hearing.
About 88% of case decisions based only on a review of the written record by a DOHA AJ result in clearance denial or revocation. About 60% of case decisions based on a hearing result in clearance denial or revocation. About 70% of applicants who respond to an SOR request hearings.
THE HEARING
Either the applicant or a DOHA attorney can request a hearing. If a hearing is requested, the applicant will be notified at least 15 days in advance of the time and place of the hearing. The hearing will be held at a location within a major city near the applicant’s place of employment or residence. The AJ may require a pre-hearing conference. The applicant must appear at the hearing in person with or without an attorney or a personal representative. Hearings are generally open, except when the applicant requests that it be closed, or when the AJ determines that there is good cause for keeping the proceedings closed.
As far in advance as practical, the DOHA attorney and the applicant may request information from the opposing party regarding witnesses or other evidence to support or rebut, explain, extenuate or mitigate information contained in the SOR that may be presented at the hearing. At the hearing witnesses and other evidence are subject to cross examination, and a verbatim transcript is made of the hearing.
After the hearing, the AJ makes a written decision that includes not only the clearance decision but also all findings of fact, policies, and conclusions regarding the allegations in the SOR. This written decision is sent to both the applicant and the DOHA attorney. DOHA then directs DISCO to make appropriate notification to the applicant’s employer. If the clearance is denied or revoked, the applicant is notified of appeal procedures.
THE APPEAL
Either the applicant or the DOHA attorney can appeal the DOHA AJ’s decision. About 20% to 30% of these decisions are appealed. This must be done in writing within 15 days of the AJ’s decision. Appeals go before a DOHA Appeal Board of three AJs. A written appeal brief must be received by the Appeal Board within 45 days from the date of the AJ’s original decision. If the DOHA attorney appeals, a copy of the brief is sent to the applicant, and the applicant has 20 days to submit a written reply brief, if any. No new evidence is received or considered by the Appeal Board; therefore, most appeals claim that the evidence did not support the decision and/or insufficient weight was given to applicant’s mitigating evidence. Except for rare circumstances where there were procedural errors, an Appeal Board’s decision is final. The Appeal Board issues a written decision addressing the material issues raised on appeal, and a copy is sent to both parties. The Appeal Board can affirm, reverse, or remand a case to the original AJ with instructions for further review.
In the vast majority of appeals, the DOHA Appeal Board affirms clearance denials. An applicant whose clearance has been finally denied or revoked is barred from reapplying for a clearance for a period of one year from the date of the initial adverse clearance decision. Industrial and non-industrial applicants do not have a right to contest security clearance denials or revocations in the courts. Documents entitled, “Prehearing Guidance” and “Appeal Instructions” are posted at the DOHA website.
INDUSTRIAL VS. NON-INDUSTRIAL CLEARANCES
There are differences between the adjudication of most industrial cases and the adjudication of cases involving military/federal civilian applicants and cases involving Special Access Programs. In such non-industrial cases, applicants who receive an SOR (also known as a Letter of Intent or a Letter of Instructions—LOI) do not have a right to a hearing. The applicant’s written rebuttal to the SOR is reviewed by a supervisory adjudicator who makes the clearance decision. If the applicant’s clearance is denied or revoked, the applicant then has a right to appeal. In making the appeal, the applicant has the choice of submitting a written appeal with supporting documents directly to their Personnel Security Appeal Board (PSAB) or requesting a personal appearance before a DOHA AJ. Procedures and timelines for SOR rebuttals and appeals differ slightly for each CAF/PSAB. Applicants who choose to appear before a DOHA AJ to present their appeal are permitted to explain their case (with or without an attorney or personal representative) and submit supporting documents, but it is not a hearing. There are no witnesses, other than the applicant, and there is no cross examination. The DOHA AJ evaluates all the information presented and makes a written clearance recommendation to the applicant’s PSAB. PSABs are composed of three members and decisions are made by a majority vote. PSABs notify applicants of their final decision and include reasons for their decision.
At first glance it may seem that applicants in industrial cases have greater procedural protections and administrative remedies than in non-industrial cases, because of their right to a hearing. But that hearing is an adversarial process in which the government is represented by an attorney experienced in security clearance matters, and the applicant may not be able to afford equal representation. When industrial applicants appeal their cases, they can not introduce new evidence; whereas, applicants in non-industrial cases can submit new evidence, and the PSAB can take an entirely fresh look at the case and make what they believe to be the appropriate decision without regard for the lower-level decision. Lastly, in industrial cases, either party (the applicant or the DOHA attorney) can appeal the decision of a DOHA AJ, but in non-industrial cases only the applicant has the right to appeal to a PSAB.
William H. Henderson is a retired security investigator, author of Security Clearance Manual, and regular contributor to ClearanceJobsBlog.com and ClearanceJobs.com.
Copyright © 2008 Last Post Publishing. All rights reserved.
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| Bill L. (Annapolis, MD) |
on 02 Nov 2009 at 11:29 am |
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Stephen (Illinois)
Your letter of Intent (LOI) should have had a POC, telephone and email. I urge you to contact the POC ASAP to relate your situation and ask for an extension. You can even send the POC a copy of your packet with a note that your S-2 would not accept it. Although you might not get a command recommendation, the record will show your efforts. Good luck. |
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| Stephen (Illinois) |
on 23 Oct 2009 at 8:59 am |
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| I missed the suspense to reply to an SOR, and did not know I was allowed to apply for an extension. I wasn't ignoring ther suspense, but had a difficult time putting my pakcet together because I am currently deployed. My SOR response was due 19 Sep. Am I allowed to appeal with DOHA, or did I miss my chance as I didn't meet the SOR response date? My SOR was due to financial delinquincies, disclosed on my e-QIP, and they are all 100% paid off. I had the packet prepared, but my S-2 won't accept it. |
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| Karla (Columbus) |
on 17 Oct 2009 at 3:39 pm |
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| I was reviewed for a security clearance and blindsided. I am a veteran, 19 years of federal service, not a blemish on my record in 19 years, and the government fired me. I make $50.000.00 less and will soon lose my house and car. This is unfair. The government should be going after those who don't do their jobs. No one will listen, I been scammed of my job. It's like everyone is afraid to go head to head with the government. And who is this review board that is so anoymous. maybe they should be because they toy the livilihood of good people. Even the lawyers are making a gain in this market, promising to represent me, and nothing...The is how America treats Americans! |
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| Aaron (Denver, Colorado) |
on 23 Sep 2009 at 11:20 pm |
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| I have been sent a letter saying that i have been found unsuitable to perform on a government contract in support of DHS. They told me that i could request a reconsideration, which I did. I sent them the request within thier time frame. They stated that they will send me a response within 10 days of thier receipt of my written request. It has now been over 3 weeks and i have not received any documents from them. They gave no phone number on the paperwork to call. How, or who can i contact in order to find out what happened? |
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| willdowningjr (Fort Drum, New York) |
on 07 Sep 2009 at 11:17 am |
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| I had my clearance suspended or revoked when I was on active duty for a PSTD incident My commander had it suspended, well I end active duty on 4 Oct 09. I was presently offered a job making 20,000 for an IT contracting company. But I need to know, “How do I go about getting my clearance cleared up?” I was never issued an SOR, I didn't even know anything about a rebuttal. So who do I contact on this issue? Should I contact my state, local or federal government? What should I do? |
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| jd (texas) |
on 27 Aug 2009 at 6:42 pm |
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| I just went through my DOHA hearing today with the administrative judge. I felt it was really rough and I felt as though I was being interrrogated like a criminal by the DOHA representative. I know he may have been doing his job but he really went the extra mile to break me down. I just wish the process was easier. I guess if my clearance gets revoked I'll be jobless and will have to see where me and my child end up. Most likely homeless or part of the system of welfare and whatever else........ |
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| ppitts (rafb, ga) |
on 27 Aug 2009 at 10:24 am |
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| I agree with all of you. I have worked for the DOD since 1986--I have been investigated for 10 years..every two years--I have NO foreign friends etc which I was accused of having--I filed a bankruptcy in 2003--it was paid out totally in 2005--my credit report from Equifax is a joke..it shows 15 Negative Accounts. I have talked to Equifax on the phone several times--to no avail. My security manager told me that if I had that many negative accounts I would never get my clearance back. I have missed like one payment to these companies and whamo!! Its bad...they need to stop doing this... |
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| William Henderson (Pacific Grove, CA) |
on 07 Aug 2009 at 2:02 am |
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| Frank: Public Trust "clearances" can not be converted to national security clearances because of differences in the investigations and the application forms. For a collateral secret clearance, I don't think your in-laws in the Philippines are any reason for concern, as long as they are not affiliated with any intelligence or security organizations. |
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| Frank (Colorado) |
on 06 Aug 2009 at 10:22 am |
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| Pending a Secret Clearance. Have had a Position of Trust since 2006 which wouldn't transfer over. Wife is a naturlized U.S citizen, however my mother, father and sister in-laws live in the Philippines and are Phillipine citizens. Investigation was completed on July 8th, still nervously awaiting ajudication. Should I be concerned? |
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| Retired ARMY (Ft Monmouth) |
on 06 Aug 2009 at 8:30 am |
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| I also held a TS SCI security clearance for over twenty years and never had a violation against me and always performed my job to the utmost brilliant and exceeded everyone's expectations. I went for a ten year update and answer the questions as always, and to my surprise my clearance was denied because of credit issues I failed to disclose. I fought the issue since it resulted in two signature loans I provided to my daughters and I was never notified about their failure to notify me. I was told to wait one year and re-apply, I am reapplying to see if I will get considered and re-gain my clearance. I spent thousand of dollars in Lawyer fees and I am spending a another few thousand in attorney fees again, it is horrible and the system is broke since they only look at paper and not your history as a person or services I provided to my country. |
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| William Henderson (Pacific Grove, CA) |
on 03 Aug 2009 at 4:07 pm |
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| Buck: A base pass is not a security clearance and there are no government-wide procedures for rebutting or appealing a denial. Some agencies may have an appeal process but there is no government regulation that I know of that requires them to have one. You will have to contact the government agency that denied your application for the pass and ask them how to appeal their decision. |
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| BUCK (VA Beach, VA) |
on 31 Jul 2009 at 4:50 pm |
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| Today I was denied a regional base pass and I'm surprised by the decision. I worked for another contractor last year and was able to obtain one. I learned a life lesson 10 years ago when I got convicted of a felony. I haven't been in any trouble since. The company I presently work for had a question on the application asking if I'd been convicted of any felonies in the past seven years and I answered no because it was the truth. Now it seems as if all of my years of being a productive member in society is being overlooked. I have three children who depend on me and I cannot support them on a meager salary. How do I go about appealing this decision? I desperately need direction. |
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| Derek Casanares (Texas / Virginia) |
on 25 Jul 2009 at 1:14 pm |
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I recently had my MRPT revoked about a month ago and still do not know why.
I talked with the Security Officer at the Interim employer and her recommend that I wait for their final decision instead of looking into it in advance. |
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| William Henderson (Pacific Grove, CA) |
on 15 Jul 2009 at 1:27 am |
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| john: Absent any aggravating or ccomplicating circumstances, a single misdemeanor offense is not serious enough to be considered a potentially disqualifying condition for a security clearance. For more information check out the 2-part article on "Criminal Conduct and Security Clearances." Use the "Recommend Articles" link next to the red stars above. |
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| john (colorado) |
on 14 Jul 2009 at 2:39 pm |
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| I had an assault charge in 2002, I had a deferred sentence and completed all requirements by the court. I am active duty army, will I be able to recieve a clearance? |
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| morocho6 further 9 (virginia beach) |
on 23 Jun 2009 at 7:35 am |
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| On the June, 2009 my Department head took me to meet the Fleet Industrial Supply Center Norfolk's Security Manager. Tthe Security Manager provided the final denial of clearancefor a sentitive position. It was shocking to find out after almost 4 months and to add insult to your injuries they slap me with administratively leave without pay until the appeal date. The so called Employee Union agreed with the decission to send you home without pay and not able to collect unemployment benefits, feed your family and be further behind on your bills. And to think that serving your, as a Veteran, country mereant something ..... |
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| TD (Boston) |
on 08 Jun 2009 at 1:05 pm |
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| Those that get their clearances revoke are usually victims of being unemployed and not being able to pay their bills. They are not criminals except to the idiots making the revoking decisions. Many victims of the 2002-2003 "phony recession" where defense companies had lay offs but the CEOs and cronies lined their pockets have had their clearances revoked and are now victims of the current recession due to these government idiots who wouldn't know an honest man from a crooked CEO if they were given clairvoyence glasses. These idiots are just looking stuff up in DOD funny books and quoting from them rather than making a thoughtful decision. Look at the language " The person with even a small amount of debt "MAY" want to contact his favorite gangster and go into crime with him. Give me a break. Put these DOD idiots in padded cells with their comic books. |
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| adam.torres1 (ft hood) |
on 08 Jun 2009 at 9:13 am |
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| i had my clearance suspended when i was on active duty for a dui. my commander had it suspended, well i got out of active duty i joined the national guard and my clearance transferred over. Now i have a clearance with the guard but with active duty i don't. i was never issued a SOR, i didn't even know anything about a rebuttal, i did take the g-2 on ft hood my paper work showing that i paid my fines and all is well now. but for some reason that red flag is still there on my clearance. and my old unit well lets just say they have had on a wild goose chase for a while. what do i do? |
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| seniorclimber (Dayton Ohio) |
on 04 May 2009 at 9:41 pm |
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| Any one who want to reduce government waste should contact their senators and congressmen about this process. DOHA and the administration law judges are out of control. DOHA sent my SOR to the wrong company. I was denied on my first appeal and now have to go before the board. Lost of hearing summary are online. Goggle ISCR Case No. and be prepared to see government out of touch with the real world. |
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| AM_I_HOSED (DC) |
on 10 Apr 2009 at 8:18 am |
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If I was deemed "unsuitable" for a CBP clearance, is this the same thing as being denied? I filled out a SF85P and signed a BIPI.
I ask for 2 reasons:
1.) If I were to apply for a clearance again, do I need to mark "Yes", if asked if I've ever been denied a clearance?
2.) Do I need to wait a full year before applying for a Top Secret or Secret clearance? |
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| CuriousJK (DC) |
on 09 Apr 2009 at 8:40 am |
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Please help, need your advice.
I just got a new job w/ a large gov’t contractor in support of a software development effort for Customs and Border Protection. I completed an SF85P back in early February ‘09.
Yesterday, I received a letter of intent for denial. The letter indicates that during my personal interview when asked, “have you ever been arrested”, I only stated 2 misdemeanors when I also had a Possession of Marijuana arrest from 6/1996.
Now, I specifically recall that the interviewer asked “have you ever been arrested in the last 7 years” and therefore I only stated the 2 misdemeanors and did not disclose the Possession of Marijuana arrest since it fell outside the 7 year mark.
I mailed my rebuttal this morning indicating why I did not disclose the 6/96 arrest (since it did not fall within the last 7 years). If the interviewer asked the question w/o specifying a time period, I certainly would have disclosed the 6/96 arrest. Furthermore, back in 1997, I disclosed the 6/96 arrest when I applied and was granted a Top Secret clearance, so its not like I was trying to conceal any information.
Please provide your thoughts as to whether my case has any weight for being granted the Public Trust status as I am *hoping* the Intent to Deny will be overturned. Should I have included any additional information in my rebuttal other than what I stated above? Is there anything else I can do to resolve this misunderstanding?
Thank you in advance. |
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| Fighting Back (South East Louisiana) |
on 02 Mar 2009 at 4:36 pm |
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I too have been exposed the the horror of being denied a security clearance. I have held a Secret DOD clearance from the military and extending into my contracting career. I also recently picked up a Public trust from DOI. I recently was put in for a position with another angency that required a Public Trust. after about 2 weeks of working I am asked to leave the work area with no explanination, other than your clearance was rejected.
I tried to get answers from my Contracting Officer or Contractor and nothing, no answers. So I drafted an email to the security officer who had preformed my investigation, to get some closure. After sending the email, my company pulls me into a meeting with a letter in hand stating why my clearance has been denied. This is 5 days after I was asked to leave the clients site. The only reason the letter was sent was because I sent an email to the office, requesting an answer.
The letter stated I was delinquent on a number of accounts listed in my credit report. This information fortunatly for me is outdated. I then asked my Contractor who I could refute the decision too and they encouraged me to just leave it alone. A day or so later they provided me with a letter saying my employment with them will be termninated within 2 weeks.
I went home and found all my documentation to support my dispute, I drafted a letter to the dept. who preformed my investigation and gave a copy to my HR officer. I have worked too long and too hard to have this on my perminate record. Those of you hear know how fursturating this can be.
I also ordered a copy of my BG investigation from OPM to corrected and updated the outdated information. I will let you all know how this turns out. The postion I had, I'm sure is no longer available to me, however, going forward I need to have this issue address... |
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| Jon (Northern VA) |
on 16 Feb 2009 at 10:57 am |
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| I had a dream job which I was just terminated from because the contract my company was on required a clearance. I was granted my interim secret and have been working there for 7 months while waiting for my final secret. My company loved me but said they had no choice since I needed a clearance. The only reason I could have been denied is because of credit (past foreclosure, now paid off, credit debt, collections) all of which I was upfront about when I got the job. I was fired, with never receiving a letter of intent or statement of reasons for my denial of the clearance. I never got a chance to appeal before I was fired. I have a wife and 3 kids, 4th to be born next month and now no job. I am a veteran of the country and all I want to do is provide. Weren't my rights violated? Shouldn't I have had the chance to appeal before they denied my clearance and fired me? |
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| Jane Smith (Colorado ) |
on 31 Jan 2009 at 9:35 pm |
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| Anyone know if having a restraining order against one is grounds for having clearance denied? |
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| lonnie (Georgia) |
on 22 Jan 2009 at 10:42 am |
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| Until recently I had held an active clearance. I was laid off in the midst of my periodic investigation while my clearance was still active in June 2007. I have applied for jobs and was accepted for a position which required a clearance but to my suprise was utimately rejected because unbeknowest to me there is some type of problem with my clearance information which I was never made aware of. How do I find out the true status in JPAS and if detrimental what if anything are the grounds for negative info so that I can respond to them. |
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| Jerry B. Slack (Thousand Oak) |
on 14 Jan 2009 at 2:16 am |
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| I have had jobs that made me sign proprietary information was not to be reveled? I will look into the Lawyer mentioned and see what it5 would take for clearance I should have no problems, Clean record etc. |
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| Scott (Indianapolis) |
on 07 Dec 2008 at 8:50 am |
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| Bottom line - I filed bankruptcy in 2007, what chance do I have to get a Secret clearance. I am considering applying for an Active Duty position with the National Guard. Funny to me WHY they are requiring a Secret clearance for CONUS assignment (handling records, supply transactions) yet no clearance is required for overseas deployment to a combat zone...? Anyhow - anyone care to share the light on my first question - do I have a chance? |
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| RandomSleeper |
on 26 Nov 2008 at 11:59 pm |
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| What's all the hostility for and the posturing about how someone loves the USA? Jeezus, that really comes across as pathetic. 100% employment, everybody gets paid - not gonna happen? First off getting a clearance through a bunch of stooges should never be considered a make it or break it in the game of life. Think of the alternatives. |
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| Michael Ver Mulm (Kansas City Missouri) |
on 26 Nov 2008 at 10:34 am |
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| I will be appealing a negative result in a request for an MRPT from the Dos. I have a DoD secret, so I am not quite sure what happened. Thanks for this article, it will help me prepare for the appeals process better! |
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| lawrence Swindell (pooler Ga. 31322) |
on 25 Nov 2008 at 5:55 pm |
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| Until recently I had held an active clearance. I was laid off in the midst of my periodic investigation while my clearance was still active in 2007. I have applied for jobs and was accepted for a position which required a clearance but to my suprise was utimately rejected because unbeknowest to me there is some type of problem with my clearance information which I was never made aware of. How do I find out the true status in JPAS and if detrimental what if anything are the grounds for negative info so that I can respond to them |
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| Kenny |
on 25 Nov 2008 at 12:31 pm |
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| MKAT - you are absolutely correct, these government agencies, my experience has been with the dolts at DSS, are not only harmful to us individually but harm the country as a whole. Maybe the Obama administration will insist on competent people to staff these agencies. Perhaps a civil service exam will weed out these do nothings who are preventing the rest of us from serving our country and earning a living. |
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| MKAT |
on 21 Nov 2008 at 2:20 am |
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I was turned down for an internship in a DOD entity because of a security flag. I wanted to ask for further information but was at frist intimidated. With the encouragement of friends I put through a FOIA and after the agency did what was the poorest job in complying I heard nothing from them for about 5 months. When I finally recontacted them, the swore they had sent it(though no one received it) and resent another package which I subsequently got. The reasons stated for the security flag was so ridiculous I know I would win on appeal. But I have fence sat and worried that raising the issue would make me seem like a troublemaker.
These agencies are in place to protect us not to provide mediocre people with the means of crippling the lives of people they feel enmity for. I love my country and I would gladly lay down my life for it. I and others like me in turn deserve the protection of the DOD and an Ombudsman's office to ensure we are not victimized. |
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