Department of Defense
DIRECTIVE
NUMBER 5220.6
January 2, 1992
Administrative Reissuance Incorporating Through Change
4, April 20, 1999
GC, DoD
SUBJECT: Defense Industrial Personnel Security Clearance
Review Program
References: (a) DoD Directive 5220.6, subject as above,
August 12, 1985 (hereby canceled)
(b) DoD 5200.2-R, "Department of Defense Personnel
Security Program," January 1987, authorized by DoD Directive
5200.2, December 20, 1979
(c) Section 1001 of title 18, United States Code
(d) Section 101 et seq. of title 28, United States
Code
1. REISSUANCE AND PURPOSE
This Directive reissues reference (a) to update policy,
responsibilities, and procedures of the Defense Industrial
Personnel Security Clearance Review Program implementing
enclosure 1.
2. APPLICABILITY AND SCOPE
This Directive:
2.1. Applies to the Office of the Secretary of Defense,
the Military Departments, the Chairman of the Joint
Chiefs of Staff and the Joint Staff, the Inspector General
of the Department of Defense (IG, DoD), and the Defense
Agencies (hereafter referred to collectively as "the
DoD Components").
2.2. By mutual agreement, also extends to other Federal
Agencies that include:
2.2.1. Department of Agriculture.
2.2.2. Department of Commerce.
2.2.3. Department of Interior.
2.2.4. Department of Justice.
2.2.5. Department of Labor.
2.2.6. Department of State.
2.2.7. Department of Transportation.
2.2.8. Department of Treasury.
2.2.9. Environmental Protection Agency.
2.2.10. Federal Emergency Management Agency.
2.2.11. Federal Reserve System.
2.2.12. General Accounting Office.
2.2.13. General Services Administration.
2.2.14. National Aeronautics and Space Administration.
2.2.15. National Science Foundation.
2.2.16. Small Business Administration.
2.2.17. United States Arms Control and Disarmament
Agency.
2.2.18. United States Information Agency.
2.2.19. United States International Trade Commission.
2.2.20. United States Trade Representative.
2.3. Applies to cases that the Defense Industrial Security
Clearance Office (DISCO) forwards to the Defense Office
of Hearings and Appeals (DOHA), Defense Legal Services
Agency for action under this Directive to determine
whether it is clearly
consistent with the national interest to grant or continue
a security clearance for the applicant.
2.4. Provides a program that may be extended to other
security cases at the direction of the Assistant Secretary
of Defense for Command, Control, Communications, and
Intelligence (ASD(C3I)).
2.5. Does not apply to cases in which:
2.5.1. A security clearance is withdrawn because the
applicant no longer has a need for access to classified
information;
2.5.2. An interim security clearance is withdrawn by
the DISCO during an investigation; or
2.5.3. A security clearance is withdrawn for administrative
reasons that are without prejudice as to a later determination
of whether the grant or continuance of the applicant's
security clearance would be clearly consistent with
the national interest.
2.6. Does not apply to cases for access to sensitive
compartmented information or a special access program.
3. DEFINITIONS
3.1. Applicant. Any U.S. citizen who holds or requires
a security clearance or any immigrant alien who holds
or requires a limited access authorization for access
to classified information needed in connection with
his or her employment in the private sector; any U.S.
citizen who is a direct-hire employee or selectee for
a position with the North Atlantic Treaty Organization
(NATO) and who holds or requires NATO certificates of
security clearance or security assurances for access
to U.S. or foreign classified information; or any U.S.
citizen nominated by the Red Cross or United Service
Organizations for assignment with the Military Services
overseas. The term "applicant" does not apply to those
U.S. citizens who are seconded to NATO by U.S. Departments
and Agencies or to U.S. citizens recruited through such
Agencies in response to a request from NATO.
3.2. Clearance Decision. A decision made in accordance
with this Directive concerning whether it is clearly
consistent with the national interest to grant an applicant
a security clearance for access to Confidential, Secret,
or Top Secret information. A favorable clearance decision
establishes eligibility of the applicant to be granted
a security clearance for access at the level governed
by the documented need for such access, and the type
of investigation specified for that level in DoD 5200.2-R
(reference (b)). An unfavorable clearance decision
denies any application for a security clearance and
revokes any existing security clearance, thereby preventing
access to classified information at any level and the
retention of any existing security clearance.
4. POLICY
It is DoD policy that:
4.1. All proceedings provided for by this Directive
shall be conducted in a fair and impartial manner.
4.2. A clearance decision reflects the basis for an
ultimate finding as to whether it is clearly consistent
with the national interest to grant or continue a security
clearance for the applicant.
4.3. Except as otherwise provided for by E.O. 10865
(enclosure 1) or this Directive, a final unfavorable
clearance decision shall not be made without first providing
the applicant with:
4.3.1. Notice of specific reasons for the proposed
action.
4.3.2. An opportunity to respond to the reasons.
4.3.3. Notice of the right to a hearing and the opportunity
to cross-examine persons providing information adverse
to the applicant.
4.3.4. Opportunity to present evidence on his or her
own behalf, or to be represented by counsel or personal
representative.
4.3.5. Written notice of final clearance decisions.
4.3.6. Notice of appeal procedures.
4.4. Actions pursuant to this Directive shall cease
upon termination of the applicant's need for access
to classified information except in those cases in which:
4.4.1. A hearing has commenced;
4.4.2. A clearance decision has been issued; or
4.4.3. The applicant's security clearance was suspended
and the applicant provided a written request that the
case continue.
5. RESPONSIBILITIES
5.1. The Assistant Secretary of Defense for Command,
Control, Communications, and Intelligence shall:
5.1.1. Establish investigative policy and adjudicative
standards and oversee their application.
5.1.2. Coordinate with the General Counsel of the Department
of Defense (GC, DoD) on policy affecting clearance decisions.
5.1.3. Issue clarifying guidance and instructions as
needed.
5.2. The General Counsel of the Department of Defense
shall:
5.2.1. Establish guidance and provide oversight as
to legal sufficiency of procedures and standards established
by this Directive.
5.2.2. Establish the organization and composition of
the DOHA.
5.2.3. Designate a civilian attorney to be the Director,
DOHA.
5.2.4. Issue clarifying guidance and instructions as
needed.
5.2.5. Administer the program established by this Directive.
5.2.6. Issue invitational travel orders in appropriate
cases to persons to appear and testify who have provided
oral or written statements adverse to the applicant
relating to a controverted issue.
5.2.7. Designate attorneys to be Department Counsels
assigned to the DOHA to represent the Government's interest
in cases and related matters within the applicability
and scope of this Directive.
5.2.8. Designate attorneys to be Administrative Judges
assigned to the DOHA.
5.2.9. Designate attorneys to be Administrative Judge
members of the DOHA Appeal Board.
5.2.10. Provide for supervision of attorneys and other
personnel assigned or attached to the DOHA.
5.2.11. Develop and implement policy established or
coordinated with the GC, DoD, in accordance with this
Directive.
5.2.12. Establish and maintain qualitative and quantitative
standards for all work by DOHA employees arising within
the applicability and scope of this Directive.
5.2.13. Ensure that the Administrative Judges and Appeal
Board members have the requisite independence to render
fair and impartial decisions consistent with DoD policy.
5.2.14. Provide training, clarify policy, or initiate
personnel actions, as appropriate, to ensure that all
DOHA decisions are made in accordance with policy, procedures,
and standards established by this Directive.
5.2.15. Provide for maintenance and control of all
DOHA records.
5.2.16. Take actions as provided for in subsection
6.2., below, and the additional procedural guidance
in enclosure 3.
5.2.17. Establish and maintain procedures for timely
assignment and completion of cases.
5.2.18. Issue guidance and instructions, as needed,
to fulfill the foregoing responsibilities.
5.2.19. Designate the Director, DOHA to implement paragraphs
5.2.5. through 5.2.18., above, under general guidance
of the GC, DoD.
5.3. The Heads of the DoD Components shall provide
(from resources available to the designated DoD Component)
financing, personnel, personnel spaces, office facilities,
and related administrative support required by the DOHA.
5.4. The ASD(C3I) shall ensure that cases within the
scope and applicability of this Directive are referred
promptly to the DOHA, as required, and that clearance
decisions by the DOHA are acted upon without delay.
6. PROCEDURES
6.1. Applicants shall be investigated in accordance
with the standards in DoD 5200.2-R (reference (b)).
6.2. An applicant is required to give, and to authorize
others to give, full, frank, and truthful answers to
relevant and material questions needed by the DOHA to
reach a clearance decision and to otherwise comply with
the procedures authorized by this Directive. The applicant
may elect on constitutional or other grounds not to
comply; but refusal or failure to furnish or authorize
the providing of relevant and material information or
otherwise cooperate at, any stage in the investigation
or adjudicative process may prevent the DOHA from making
a clearance decision. If an applicant fails or refuses
to:
6.2.1. Provide relevant and material information or
to authorize others to provide such information; or
6.2.2. Proceed in a timely or orderly fashion in accordance
with this Directive; or
6.2.3. Follow directions of an Administrative Judge
or the Appeal Board; then the Director, DOHA, or designee,
may revoke any security clearance held by the applicant
and discontinue case processing. Requests for resumption
of case processing and reinstatement of a security clearance
may be approved by the Director, DOHA, only upon a showing
of good cause. If the request is denied, in whole
or in part, the decision is final and bars reapplication
for a security clearance for 1 year from the date of
the revocation.
6.3. Each clearance decision must be a fair and impartial
common sense determination based upon consideration
of all the relevant and material information and the
pertinent criteria and adjudication policy in enclosure
2, including as appropriate:
6.3.1. Nature and seriousness of the conduct and surrounding
circumstances.
6.3.2. Frequency and recency of the conduct.
6.3.3. Age of the applicant.
6.3.4. Motivation of the applicant, and the extent
to which the conduct was negligent, willful, voluntary,
or undertaken with knowledge of the consequences involved.
6.3.5. Absence or presence of rehabilitation.
6.3.6. Probability that the circumstances or conduct
will continue or recur in the future;
6.4. Whenever there is a reasonable basis for concluding
that an applicant's continued access to classified information
poses an imminent threat to the national interest, any
security clearance held by the applicant may be suspended
by the ASD(C3I), with the concurrence of the GC, DoD,
pending a final clearance decision. This suspension
may be rescinded by the same authorities upon presentation
of additional information that conclusively demonstrates
that an imminent threat to the national interest no
longer exists. Procedures in enclosure 3 shall be
expedited whenever an applicant's security clearance
has been suspended pursuant to this subsection.
6.5. Nothing contained in this Directive shall limit
or affect the responsibility and powers of the Secretary
of Defense or the head of another Department or Agency
to deny or revoke a security clearance when the security
of the nation so requires. Such authority may not
be delegated and may be exercised only when the Secretary
of Defense or the head of another Department or Agency
determines that the hearing procedures and other provisions
of this Directive cannot be invoked consistent with
the national security. Such a determination shall
be conclusive.
6.6. Additional procedural guidance is in enclosure
3.
7. EFFECTIVE DATE
This Directive is effective March 16, 1992, except those
cases in which a statement of reasons has been issued
shall be concluded in accordance with DoD Directive
5220.6 (reference (a)).
Enclosures - 3
E1. Executive Order 10865, "Safeguarding Classified
Information Within Industry," as amended by Executive
Order No. 10909 of January 17, 1961, Executive Order
No. 11382 of November 28, 1967, and Executive Order
No. 12829 of January 6, 1993"
E2. Paragraph 2-200 and Appendix I, DoD 5200.2-R
E3. Additional Procedural Guidance
E1. ENCLOSURE 1
EXECUTIVE ORDER 10865*
SAFEGUARDING CLASSIFIED INFORMATION WITHIN INDUSTRY
Source: The provisions of Executive Order 10865 of
Feb. 20, 1960, appear at 25 FR 1583, 3 CFR 1959-1963
Comp., p. 398, unless otherwise noted.
WHEREAS it is mandatory that the United States protect
itself against hostile or destructive activities by
preventing unauthorized disclosure of classified information
relating to the national defense; and
WHEREAS it is a fundamental principle of our Government
to protect the interests of individuals against unreasonable
or unwarranted encroachment; and
WHEREAS I find that the provisions and procedures prescribed
by this order are necessary to assure the preservation
of the integrity of classified defense information and
to protect the national interest; and
WHEREAS I find that those provisions and procedures
recognize the interests of individuals affected thereby
and provide maximum possible safeguards to protect such
interest:
NOW, THEREFORE, under and by virtue of the authority
vested in me by the Constitution and statutes of the
United States, and as President of the United States
and as Commander in Chief of the Armed Forces of the
United States, it is hereby ordered as follows:
*Executive Order 10865, signed by President Eisenhower
on Feb. 20, 1960, is hereby reprinted as amended by
Executive Order No. 10909 of January 17, 1961, Executive
Order No. 11382 of November 28, 1967, and Executive
Order No. 12829 of January 6, 1993. This is an editorial
format prepared by the Directorate for Industrial Security
Clearance Review as one convenient source for subsequent
changes to Executive Order 10865 and is not intended
to be used as a definitive legal authority. This version
incorporates amendments through January 6, 1993, by
Presidents Dwight D. Eisenhower, Lyndon B. Johnson and
George Bush.
SECTION 1. When used in this order, the term "head
of a Department" means the Secretary of State, the Secretary
of Defense, the Secretary of Transportation, the Secretary
of Energy, the Nuclear Regulatory Commission, the Administrator
of the National Aeronautics and Space Administration,
and, in section 4, the Attorney General. The term
"head of a Department" also means the head of any Department
or Agency, including but not limited to those referenced
above with whom the Department of Defense makes an agreement
to extend regulations prescribed by the Secretary of
Defense concerning authorizations for access to classified
information pursuant to Executive Order No. 12829.
[Sec. 1 amended by EO 10909 of Jan 17, 1961, 26 FR 508,
3 CFR, 1959-1963 Comp., p. 437; EO 11382 of Nov. 28,
1967, 32 FR 16247, 3 CFR, 1966-1970 Comp., p. 691; EO
12829 of Jan. 6, 1993, 58 FR 3479]
SECTION 2. An authorization for access to classified
information pursuant to Executive Order No. 12829 may
be granted by the head of a Department or his designee,
including, but not limited to, those officials named
in section 8 of this order, to an individual, hereinafter
termed an "applicant", for a specific classification
category only upon a finding that it is clearly consistent
with the national interest to do so.
[Sec. 2 amended by EO 12829 of Jan 6, 1993, 58 F4 3479]
SECTION 3. Except as provided in section 9 of this
order, an authorization for access to a specific classification
category may not be finally denied or revoked pursuant
to Executive Order 12829 by the head of a Department
or his designee, including, but not limited to, those
officials named in section 8 of this order, unless the
applicant has been given the following:
(1) A written statement of reasons why his access authorization
may be denied or revoked, which shall be as comprehensive
and detailed as the national security permits.
(2) A reasonable opportunity to reply in writing under
oath or affirmation to the statement of reasons.
(3) After he has filed under oath or affirmation a
written reply to the statement of reasons, the form
and sufficiency of which may be prescribed by regulations
issued by the head of the Department concerned, an opportunity
to appear personally before the head of the Department
concerned or his designee, including, but not limited
to, those officials named in section 8 of this order,
for the purpose of supporting his eligibility for access
authorization and to present evidence on his behalf.
(4) A reasonable time to prepare for that appearance.
(5) An opportunity to be represented by counsel.
(6) An opportunity to cross-examine persons either
orally or through written interrogatories in accordance
with section 4 on matters not relating to the characterization
in the statement of reasons of any organization or individual
other than the applicant.
(7) A written notice of the final decision in his case
which, if adverse, shall specify whether the head of
the Department or his designee, including, but not limited
to, those officials named in section 8 of this order,
found for or against him with respect to each allegation
in the statement of reasons.
[Sec. 3 amended by EO 12829 of Jan 6, 1993, 58 FR 3479]
SECTION 4. (a) An applicant shall be afforded an
opportunity to cross-examine persons who have made oral
or written statements adverse to the applicant relating
to a controverted issue except that any such statement
may be received and considered without affording such
opportunity in the circumstances described in either
of the following paragraphs:
(1) The head of the Department supplying the statement
certifies that the person who furnished the information
is a confidential informant who has been engaged in
obtaining intelligence information for the Government
and that disclosure of his identity would be substantially
harmful to the national interest.
(2) The head of the Department concerned or his special
designee for that particular purpose has preliminarily
determined, after considering information furnished
by the investigative agency involved as to the reliability
of the person and the accuracy of the statement concerned,
that the statement concerned appears to be reliable
and material, and the head of the Department or such
special designee has determined that failure to receive
and consider such statement would, in view of the level
of access sought, be substantially harmful to the national
security and that the person who furnished the information
cannot appear to testify (A) due to death, severe illness,
or similar cause, in which case the identity of the
person and the information to
be considered shall be made available to the applicant,
or (B) due to some other cause determined by the head
of the Department to be good and sufficient.
(b) Whenever procedures under paragraph (1) or (2)
of subsection (a) of this section are used (1) the applicant
shall be given a summary of the information which shall
be as comprehensive and detailed as the national security
permits, (2) appropriate consideration shall be accorded
to the fact that the applicant did not have an opportunity
to cross-examine such person or persons, and (3) a final
determination adverse to the applicant shall be made
only by the head of the Department based upon his personal
review of the case.
SECTION 5. (a) Records compiled in the regular course
of business, or other physical evidence other than investigative
reports, may be received and considered subject to rebuttal
without authenticating witnesses, provided that such
information has been furnished to the Department concerned
by an investigative agency pursuant to its responsibilities
in connection with assisting the head of the Department
concerned to safeguard classified information within
industry pursuant to this order.
(b) Records compiled in the regular course of business,
or other physical evidence other than investigative
reports, relating to a controverted issue which, because
they are classified, may not be inspected by the applicant,
may be received and considered provided that: (1)
the head of the Department concerned or his special
designee for that purpose has made a preliminary determination
that such physical evidence appears to be material,
(2) the head of the Department concerned or such designee
has made a determination that failure to receive and
consider such physical evidence would, in view of the
level of access sought, be substantially harmful to
the national security, and (3) to the extent that the
national security permits, a summary or description
of such physical evidence is made available to the applicant.
In every such case, information as to the authenticity
and accuracy of such physical evidence furnished by
the investigative agency involved shall be considered.
In such instances a final determination adverse to
the applicant shall be made only by the head of the
Department based upon his personal review of the case.
SECTION 6. The head of a Department of the United
States or his representative, may issue, in appropriate
cases, invitations and requests to appear and testify
in order that the applicant may have the opportunity
to cross-examine as provided by this order. Whenever
a witness is so invited or requested to appear and testify
at a proceeding and the witness is an officer or employee
of the Executive Branch of the Government or a member
of the Armed Forces of the United States, and the proceeding
involves the activity in connection with which the witness
is employed, travel expenses and per diem are authorized
as provided by the Standard Government Travel Regulations
or the Joint Travel Regulations, as appropriate. In
all other cases (including non-Government employees
as well as officers or employees of the Executive Branch
of the Government or members of the Armed Forces of
the United states not covered by the foregoing sentence),
transportation in kind and reimbursement for actual
expenses are authorized in an amount not to exceed the
amount payable under Standardized Government Travel
Regulations. An Officer or employee of the Executive
Branch of the Government or a member of the Armed Forces
of the United States who is invited or requested to
appear pursuant to this paragraph shall be deemed to
be in the performance of his official duties. So far
as the national security permits, the head of the investigative
agency involved shall cooperate with the Secretary,
the Administrator, or the head of the other Department
or Agency, as the case may be, in identifying persons
who have made statements adverse to the applicant and
in assisting him in making them available for cross-examination.
If a person so invited is an officer or employee of
the Executive Branch of the Government or a member of
the Armed Forces of the United States, the head of the
Department or Agency concerned shall cooperate in making
that person available for cross-examination.
[Sec. 6 amended by EO 10909 of Jan. 17, 1961, 26 FR
508, 3 CFR, 1959-1963 Comp., p. 437; EO 11382 of Nov.
28, 1967, 32 FR 16247, 3 CFR, 1966-1970 Comp., p. 691;
EO 12829 of Jan. 6, 1993, 58 FR 3479]
SECTION 7. Any determination under this order adverse
to an applicant shall be a determination in terms of
the national interest and shall in no sense be a determination
as to the loyalty of the applicant concerned.
SECTION 8. Except as otherwise specified in the preceding
provisions of this order, any authority vested in the
head of a Department by this order may be delegated
to the deputy of that Department, or the principal assistant
to the head of that Department, as the case may be.
[Sec. 8 amended by EO 10909 of Jan 17, 1961, 26 FR 508,
3 CFR, 1959-1963 Comp., p. 437; EO 11382 of Nov. 28,
1967, 32 FR 16247, 3 CFR, 1966-1970 Comp., p. 691; EO
12829 of Jan. 6, 1993, 58 FR 3479]
SECTION 9. Nothing contained in this order shall
be deemed to limit or affect the responsibility and
powers of the head of a Department to deny or revoke
access to a specific classification category if the
security of the nation so requires. Such authority
may not be delegated and may be exercised only when
the head of a Department determines that the procedures
prescribed in sections 3, 4, and 5 cannot be invoked
consistently with the national security and such determination
shall be conclusive.
E2. ENCLOSURE 2
ADJUDICATIVE GUIDELINES FOR DETERMINING ELIGIBILITY
FOR ACCESS TO CLASSIFIED INFORMATION
E2.1. INTRODUCTION
The following adjudicative guidelines are established
for all U.S. Government civilian and military personnel,
consultants, contractors, employees of contractors,
licensees, certificate holders or grantees and their
employees and other individuals who require access to
classified information and/or assignment to sensitive
national security positions. They apply to persons
being considered for initial or continued eligibility
for assignment to sensitive positions and/or access
to classified information, to include Sensitive Compartmented
Information (SCI) and Special Access Programs (SAPs)
and are to be used by Government Departments and Agencies
in all final clearance determinations.
E2.2. ADJUDICATIVE PROCESS
E2.2.1. The adjudicative process is an examination
of a sufficient period of a person's life to make an
affirmative determination that the person is eligible
for a security clearance. Eligibility for access to
classified information is predicated upon the individual
meeting these personnel security guidelines. The adjudicative
process is the careful weighing of a number of variables
known as the whole person concept. Available, reliable
information about the person, past and present, favorable
and unfavorable, should be considered in reaching a
determination. In evaluating the relevance of an individual's
conduct, the adjudicator should consider the following
factors:
E2.2.1.1. The nature, extent, and seriousness of the
conduct;
E2.2.1.2. The circumstances surrounding the conduct,
to include knowledgeable participation;
E2.2.1.3. The frequency and recency of the conduct;
E2.2.1.4. The individual's age and maturity at the
time of the conduct;
E2.2.1.5. The voluntariness of participation;
E2.2.1.6. The presence or absence of rehabilitation
and other pertinent behavioral changes;
E2.2.1.7. The motivation for the conduct;
E2.2.1.8. The potential for pressure, coercion, exploitation,
or duress; and
E2.2.1.9. The likelihood of continuation or recurrence;
E2.2.2. Each case must be judged on its own merits,
and final determination remains the responsibility of
the specific Department or Agency. Any doubt as to
whether access to classified information is clearly
consistent with national security will be resolved in
favor of the national security.
E2.2.3. The ultimate determination of whether the
granting or continuing of eligibility for a security
clearance is clearly consistent with the interests of
national security must be an overall common sense determination
based upon careful consideration of the following, each
of which is to be evaluated in the context of the whole
person, as explained further below:
E2.2.3.1. Guideline A: Allegiance to the United
States
E2.2.3.2. Guideline B: Foreign influence
E2.2.3.3. Guideline C: Foreign preference
E2.2.3.4. Guideline D: Sexual behavior
E2.2.3.5. Guideline E: Personal conduct
E2.2.3.6. Guideline F: Financial considerations
E2.2.3.7. Guideline G: Alcohol consumption
E2.2.3.8. Guideline H: Drug involvement
E2.2.3.9. Guideline I: Emotional, mental, and personality
disorders
E2.2.3.10. Guideline J: Criminal conduct
E2.2.3.11. Guideline K: Security violations
E2.2.3.12. Guideline L: Outside activities
E2.2.3.13. Guideline M: Misuse of Information Technology
Systems
E2.2.4. Although adverse information concerning a
single criterion may not be sufficient for an unfavorable
determination, the individual may be disqualified if
available information reflects a recent or recurring
pattern of questionable judgment, irresponsibility,
or emotionally unstable behavior. Notwithstanding,
the whole person concept, pursuit of further investigation
may be terminated by an appropriate adjudicative agency
in the face of reliable, significant, disqualifying,
adverse information.
E2.2.5. When information of security concern becomes
known about an individual who is currently eligible
for access to classified information, the adjudicator
should consider whether the person:
E2.2.5.1. Voluntarily reported the information
E2.2.5.2. Was truthful and complete in responding
to questions;
E2.2.5.3. Sought assistance and followed professional
guidance, where appropriate;
E2.2.5.4. Resolved or appears likely to favorably
resolve the security concern;
E2.2.5.5. Has demonstrated positive changes in behavior
and employment;
E2.2.5.6. Should have his or her access temporarily
suspended pending final adjudication of the information.
E2.2.6. If after evaluating information of security
concern, the adjudicator decides that the information
is not serious enough to warrant a recommendation of
disapproval or revocation of the security clearance,
it may be appropriate to recommend approval with a warning
that future incidents of a similar nature may result
in revocation of access.
Attachments - 13
E2.A1. GUIDELINE A, Allegiance to the United States
E2.A2. GUIDELINE B, Foreign Influence
E2.A3. GUIDELINE C, Foreign Preference
E2.A4. GUIDELINE D, Sexual Behavior
E2.A5. GUIDELINE E, Personal Conduct
E2.A6. GUIDELINE F, Financial Considerations
E2.A7. GUIDELINE G, Alcohol Consumption
E2.A8. GUIDELINE H, Drug Involvement
E2.A9. GUIDELINE I, Emotional, Mental, and Personality
Disorders
E2.A10. GUIDELINE J, Criminal Conduct
E2.A11. GUIDELINE K, Security Violations
E2.A12. GUIDELINE L, Outside Activities
E2.A13. GUIDELINE M, Misuse of Information Technology
Systems
E2.A1. ATTACHMENT 1 TO ENCLOSURE 2
GUIDELINE A
Allegiance to the United States
E2.A1.1.1. The Concern. An individual must be of
unquestioned allegiance to the United States. The
willingness to safeguard classified information is in
doubt if there is any reason to suspect an individuals
allegiance to the United States.
E2.A1.1.2. Conditions that could raise a security
concern and may be disqualifying include:
E2.A1.1.2.1. Involvement in any act of sabotage, espionage,
treason, terrorism, sedition, or other act whose aim
is to overthrow the Government of the United States
or alter the form of Government by unconstitutional
means;
E2.A1.1.2.2. Association or sympathy with persons
who are attempting to commit, or who are committing,
any of the above acts;
E2.A1.1.2.3. Association or sympathy with persons
or organizations that advocate the overthrow of the
United States Government, or any State or subdivision,
by force or violence or by other unconstitutional means;
E2.A1.1.2.4. Involvement in activities which unlawfully
advocate or practice the commission of acts of force
or violence to prevent others from exercising their
rights under the Constitution or laws of the United
States or of any State.
E2.A1.1.3. Conditions that could mitigate security
concerns include:
E2.A1.1.3.1. The individual was unaware of the unlawful
aims of the individual or organization and severed ties
upon learning of these;
E2.A1.1.3.2. The individual's involvement was only
with the lawful or humanitarian aspects of such an organization;
E2.A1.1.3.3. Involvement in the above activities
occurred for only a short period of time and was attributable
to curiosity or academic interest;
E2.A1.1.3.4. The person has had no recent involvement
or association with such activities.
E2.A2. ATTACHMENT 2 TO ENCLOSURE 2
GUIDELINE B
Foreign Influence
E2.A2.1.1. The Concern: A security risk may exist
when an individual's immediate family, including cohabitants,
and other persons to whom he or she may be bound by
affection, influence, or obligation are not citizens
of the United States or may be subject to duress.
These situations could create the potential for foreign
influence that could result in the compromise of classified
information. Contacts with citizens of other countries
or financial interests in other countries are also relevant
to security determinations if they make an individual
potentially vulnerable to coercion, exploitation, or
pressure.
E2.A2.1.2. Conditions that could raise a security
concern and may be disqualifying include:
E2.A2.1.2.1. An immediate family member, or a person
to whom the individual has close ties of affection or
obligation, is a citizen of, or resident or present
in, a foreign country;
E2.A2.1.2.1. Sharing living quarters with a person
or persons, regardless of their citizenship status,
if the potential for adverse foreign influence or duress
exists;
E2.A2.1.2.3. Relatives, cohabitants, or associates
who are connected with any foreign government;
E2.A2.1.2.4. Failing to report, where required, associations
with foreign nationals;
E2.A2.1.2.5. Unauthorized association with a suspected
or known collaborator or employee of a foreign intelligence
service;
E2.A2.1.2.6. Conduct which may make the individual
vulnerable to coercion, exploitation, or pressure by
a foreign government;
E2.A2.1.2.7. Indications that representatives or
nationals from a foreign country are acting to increase
the vulnerability of the individual to possible future
exploitation, coercion or pressure;
E2.A2.1.2.8. A substantial financial interest in
a country, or in any foreign-owned or -operated business
that could make the individual vulnerable to foreign
influence.
E2.A2.1.3. Conditions that could mitigate security
concerns include:
E2.A2.1.3.1. A determination that the immediate family
member(s), (spouse, father, mother, sons, daughters,
brothers, sisters), cohabitant, or associate(s) in question
are not agents of a foreign power or in a position to
be exploited by a foreign power in a way that could
force the individual to choose between loyalty to the
person(s) involved and the United States;
E2.A2.1.3.2. Contacts with foreign citizens are the
result of official United States Government business;
E2.A2.1.3.3. Contact and correspondence with foreign
citizens are casual and infrequent;
E2.A2.1.3.4. The individual has promptly reported to
proper authorities all contacts, requests, or threats
from persons or organizations from a foreign country,
as required;
E2.A2.1.3.5. Foreign financial interests are minimal
and not sufficient to affect the individual's security
responsibilities.
E2.A3. ATTACHMENT 3 TO ENCLOSURE 2
GUIDELINE C
Foreign Preference
E2.A3.1.1. The Concern: When an individual acts in
such a way as to indicate a preference for a foreign
country over the United States, then he or she may be
prone to provide information or make decisions that
are harmful to the interests of the United States.
E2.A3.1.2. Conditions that could raise a security concern
and may be disqualifying include:
E2.A3.1.2.1. The exercise of dual citizenship;
E2.A3.1.2.2. Possession and/or use of a foreign passport;
E2.A3.1.2.3. Military service or a willingness to bear
arms for a foreign country;
E2.A3.1.2.4. Accepting educational, medical, or other
benefits, such as retirement and social welfare, from
a foreign country;
E2.A3.1.2.5. Residence in a foreign country to meet
citizenship requirements;
E2.A3.1.2.6. Using foreign citizenship to protect financial
or business interests in another country;
E2.A3.1.2.7. Seeking or holding political office in
the foreign country;
E2.A3.1.2.8. Voting in foreign elections; and
E2.A3.1.2.9. Performing or attempting to perform duties,
or otherwise acting, so as to serve the interests of
another government in preference to the interests of
the United States.
E2.A3.1.3. Conditions that could mitigate security
concerns include:
E2.A3.1.3.1. Dual citizenship is based solely on parents'
citizenship or birth in a foreign country;
E2.A3.1.3.2. Indicators of possible foreign preference
(e.g., foreign military service) occurred before obtaining
United States citizenship;
E2.A3.1.3.3. Activity is sanctioned by the United States;
E2.A3.1.3.4. Individual has expressed a willingness
to renounce dual citizenship.
E2.A4. ATTACHMENT 4 TO ENCLOSURE 2
GUIDELINE D
Sexual Behavior
E2.A4.1.1. The Concern: Sexual behavior is a security
concern if it involves a criminal offense, indicates
a personality or emotional disorder, may subject the
individual to coercion, exploitation, or duress or reflects
lack of judgment or discretion.1 Sexual orientation
or preference may not be used as a basis for or a disqualifying
factor in determining a person's eligibility for a security
clearance.
E2.A4.1.2. Conditions that could raise a security concern
and may be disqualifying include:
E2.A4.1.2.1. Sexual behavior of a criminal nature,
whether or not the individual has been prosecuted;
E2.A4.1.2.2. Compulsive or addictive sexual behavior
when the person is unable to stop a pattern of self-destructive
or high-risk behavior or that which is symptomatic of
a personality disorder;
E2.A4.1.2.3. Sexual behavior that causes an individual
to be vulnerable to coercion, exploitation, or duress;
E2.A4.1.2.4. Sexual behavior of a public nature and/or
that which reflects lack of discretion or judgment.
E2.A4.1.3. Conditions that could mitigate security
concerns include:
E2.A4.1.3.1. The behavior occurred during or prior
to adolescence and there is no evidence of subsequent
conduct of a similar nature;
E2.A4.1.3.2. The behavior was not recent and there
is no evidence of subsequent conduct of a similar nature;
E2.A4.1.3.3. There is no other evidence of questionable
judgment, irresponsibility, or emotional instability;
1 The adjudicator should also consider guidelines pertaining
to criminal conduct (Guideline J) and emotional, mental,
and personality disorders (Guideline I) in determining
how to resolve the security concerns raised by sexual
behavior.
E2.A4.1.3.4. The behavior no longer serves as a basis
for coercion, exploitation, or duress.
E2.A5. ATTACHMENT 5 TO ENCLOSURE 2
GUIDELINE E
PERSONAL CONDUCT
E2.A5.1.1. The Concern: Conduct involving questionable
judgment, untrustworthiness, unreliability, lack of
candor, dishonesty, or unwillingness to comply with
rules and regulations could indicate that the person
may not properly safeguard classified information.
The following will normally result in an unfavorable
clearance action or administrative termination of further
processing for clearance eligibility:
E2.A5.1.1.1. Refusal to undergo or cooperate with required
security processing, including medical and psychological
testing; or
E2.A5.1.1.2. Refusal to complete required security
forms, releases, or provide full, frank and truthful
answers to lawful questions of investigators, security
officials or other official representatives in connection
with a personnel security or trustworthiness determination.
E2.A5.1.2. Conditions that could raise a security concern
and may be disqualifying also include:
E2.A5.1.2.1. Reliable, unfavorable information provided
by associates, employers, coworkers, neighbors, and
other acquaintances;
E2.A5.1.2.2. The deliberate omission, concealment,
or falsification of relevant and material facts from
any personnel security questionnaire, personal history
statement, or similar form used to conduct investigations,
determine employment qualifications, award benefits
or status, determine security clearance eligibility
or trustworthiness, or award fiduciary responsibilities;
E2.A5.1.2.3. Deliberately providing false or misleading
information concerning relevant and material matters
to an investigator, security official, competent medical
authority, or other official representative in connection
with a personnel security or trustworthiness determination;
E2.A5.1.2.4. Personal conduct or concealment of information
that increases an individual's vulnerability to coercion,
exploitation or duress, such as engaging in activities
which, if known, may affect the person's personal, professional,
or community standing or render the person susceptible
to blackmail;
E2.A5.1.2.5. A pattern of dishonesty or rule violations,
including violation of any written or recorded agreement
made between the individual and the agency;
E2.A5.1.2.6. Association with persons involved in criminal
activity.
E2.A5.1.3. Conditions that could mitigate security
concerns include:
E2.A5.1.3.1. The information was unsubstantiated or
not pertinent to a determination of judgment, trustworthiness,
or reliability;
E2.A5.1.3.2. The falsification was an isolated incident,
was not recent, and the individual has subsequently
provided correct information voluntarily;
E2.A5.1.3.3. The individual made prompt, good-faith
efforts to correct the falsification before being confronted
with the facts;
E2.A5.1.3.4. Omission of material facts was caused
or significantly contributed to by improper or inadequate
advice of authorized personnel, and the previously omitted
information was promptly and fully provided;
E2.A5.1.3.5. The individual has taken positive steps
to significantly reduce or eliminate vulnerability to
coercion, exploitation, or duress;
E2.A5.1.3.6. A refusal to cooperate was based on advice
from legal counsel or other officials that the individual
was not required to comply with security processing
requirements and, upon being made aware of the requirement,
fully and truthfully provided the requested information;
E2.A5.1.3.7. Association with persons involved in criminal
activities has ceased.
E2.A6. ATTACHMENT 6 TO ENCLOSURE 2
GUIDELINE F
Financial Considerations
E2.A6.1.1. The Concern: An individual who is financially
overextended is at risk of having to engage in illegal
acts to generate funds. Unexplained affluence is often
linked to proceeds from financially profitable criminal
acts.
E2.A6.1.2. Conditions that could raise a security concern
and may be disqualifying include:
E2.A6.1.2.1. A history of not meeting financial obligations;
E2.A6.1.2.2. Deceptive or illegal financial practices
such as embezzlement, employee theft, check fraud, income
tax evasion, expense account fraud, filing deceptive
loan statements, and other intentional financial breaches
of trust;
E2.A6.1.2.3. Inability or unwillingness to satisfy
debts;
E2.A6.1.2.4. Unexplained affluence;
E2.A6.1.2.5. Financial problems that are linked to
gambling, drug abuse, alcoholism, or other issues of
security concern.
E2.A6.1.3. Conditions that could mitigate security
concerns include:
E2.A6.1.3.1. The behavior was not recent;
E2.A6.1.3.2. It was an isolated incident;
E2.A6.1.3.3. The conditions that resulted in the behavior
were largely beyond the person's control (e.g., loss
of employment, a business downturn, unexpected medical
emergency, or a death, divorce or separation);
E2.A6.1.3.4. The person has received or is receiving
counseling for the problem and there are clear indications
that the problem is being resolved or is under control;
E2.A6.1.3.5. The affluence resulted from a legal source;
and
E2.A6.1.3.6. The individual initiated a good-faith
effort to repay overdue creditors or otherwise resolve
debts.
E2.A7. ATTACHMENT 7 TO ENCLOSURE 2
GUIDELINE G
Alcohol Consumption
E2.A7.1.1. The Concern: Excessive alcohol consumption
often leads to the exercise of questionable judgment,
unreliability, failure to control impulses, and increases
the risk of unauthorized disclosure of classified information
due to carelessness.
E2.A7.1.2. Conditions that could raise a security concern
and may be disqualifying include:
E2.A7.1.2.1. Alcohol-related incidents away from work,
such as driving while under the influence, fighting,
child or spouse abuse, or other criminal incidents related
to alcohol use;
E2.A7.1.2.2. Alcohol-related incidents at work, such
as reporting for work or duty in an intoxicated or impaired
condition, or drinking on the job;
E2.A7.1.2.3. Diagnosis by a credentialed medical professional
(e.g., physician, clinical psychologist, or psychiatrist)
of alcohol abuse or alcohol dependence;
E2.A7.1.2.4. Evaluation of alcohol abuse or alcohol
dependence by a licensed clinical social worker who
is a staff member of a recognized alcohol treatment
program;
E2.A7.1.2.5. Habitual or binge consumption of alcohol
to the point of impaired judgment;
E2.A7.1.2.6. Consumption of alcohol, subsequent to
a diagnosis of alcoholism by a credentialed medical
professional and following completion of an alcohol
rehabilitation program
E2.A7.1.3. Conditions that could mitigate security
concerns include:
E2.A7.1.3.1. The alcohol related incidents do not indicate
a pattern;
E2.A7.1.3.2. The problem occurred a number of years
ago and there is no indication of a recent problem;
E2.A7.1.3.3. Positive changes in behavior supportive
of sobriety;
E2.A7.1.3.4. Following diagnosis of alcohol abuse or
alcohol dependence, the individual has successfully
completed inpatient or outpatient rehabilitation along
with aftercare requirements, participates frequently
in meetings of Alcoholics Anonymous or a similar organization,
has abstained from alcohol for a period of at least
12 months, and received a favorable prognosis by a credentialed
medical professional or licensed clinical social worker
who is a staff member of a recognized alcohol treatment
program.
E2.A8. ATTACHMENT 8 TO ENCLOSURE 2
GUIDELINE H
Drug Involvement
E2.A8.1.1. The Concern:
E2.A8.1.1.1. Improper or illegal involvement with drugs,
raises questions regarding an individual's willingness
or ability to protect classified information. Drug
abuse or dependence may impair social or occupational
functioning, increasing the risk of an unauthorized
disclosure of classified information
E2.A8.1.1.2. Drugs are defined as mood and behavior-altering
substances, and include:
E2.A8.1.1.2.1. Drugs, materials, and other chemical
compounds identified and listed in the Controlled Substances
Act of 1970, as amended (e.g., marijuana or cannabis,
depressants, narcotics, stimulants, and hallucinogens);
and
E2.A8.1.1.2.2. Inhalants and other similar substances,
E2.A8.1.1.3. Drug abuse is the illegal use of a drug
or use of a legal drug in a manner that deviates from
approved medical direction.
E2.A8.1.2. Conditions that could raise a security concern
and may be disqualifying include:
E2.A8.1.2.1. Any drug abuse (see above definition);
E2.A8.1.2.2. Illegal drug possession, including cultivation,
processing, manufacture, purchase, sale, or distribution;
E2.A8.1.2.3. Diagnosis by a credentialed medical professional
(e.g., physician, clinical psychologist, or psychiatrist)
of drug abuse or drug dependence;
E2.A8.1.2.4. Evaluation of drug abuse or drug dependence
by a licensed clinical social worker who is a staff
member of a recognized drug treatment program;
E2.A8.1.2.5. Failure to successfully complete a drug
treatment program prescribed by a credentialed medical
professional. Recent drug involvement, especially
following the granting of a security clearance, or an
expressed intent not to discontinue use, will almost
invariably result in an unfavorable determination.
E2.A8.1.3. Conditions that could mitigate security
concerns include:
E2.A8.1.3.1. The drug involvement was not recent;
E2.A8.1.3.2. The drug involvement was an isolated or
aberrational event;
E2.A8.1.3.3. A demonstrated intent not to abuse any
drugs in the future;
E2.A8.1.3.4. Satisfactory completion of a prescribed
drug treatment program, including rehabilitation and
aftercare requirements, without recurrence of abuse,
and a favorable prognosis by a credentialed medical
professional.
E2.A9. ATTACHMENT 9 TO ENCLOSURE 2
GUIDELINE I
Emotional, Mental, and Personality Disorders
E2.A9.1.1. The Concern: Emotional, mental, and personality
disorders can cause a significant deficit in an individuals
psychological, social and occupational functioning.
These disorders are of security concern because they
may indicate a defect in judgment, reliability or stability.
A credentialed mental health professional (e.g.,
clinical psychologist or psychiatrist), employed by,
acceptable to or approved by the Government, should
be utilized in evaluating potentially disqualifying
and mitigating information fully and properly, and particularly
for consultation with the individual's mental health
care provider.
E2.A9.1.2. Conditions that could raise a security concern
and may be disqualifying include:
E2.A9.1.2.1. An opinion by a credentialed mental health
professional that the individual has a condition or
treatment that may indicate a defect in judgment, reliability,
or stability;
E2.A9.1.2.2. Information that suggests that an individual
has failed to follow appropriate medical advice relating
to treatment of a condition, e.g. failure to take prescribed
medication;
E2.A9.1.2.3. A pattern of high-risk, irresponsible,
aggressive, anti-social or emotionally unstable behavior;
E2.A9.1.2.4. Information that suggests that the individual's
current behavior indicates a defect in his or her judgment
or reliability.
E2.A9.1.3. Conditions that could mitigate security
concerns include:
E2.A9.1.3.1. There is no indication of a current problem;
E2.A9.1.3.2. Recent opinion by a credentialed mental
health professional that an individual's previous emotional,
mental, or personality disorder is cured, under control
or in remission, and has a low probability of recurrence
or exacerbation;
E2.A9.1.3.3. The past emotional instability was a temporary
condition (e.g., one caused by a death, illness, or
marital breakup), the situation has been resolved, and
the individual is no longer emotionally unstable.
E2.A10. ATTACHMENT 10 TO ENCLOSURE 2
GUIDELINE J
Criminal Conduct
E2.A10.1.1. The Concern: A history or pattern of
criminal activity creates doubt about a person's judgment,
reliability and trustworthiness.
E2.A10.1.2. Conditions that could raise a security
concern and may be disqualifying include:
E2.A10.1.2.1. Allegations or admission of criminal
conduct, regardless of whether the person was formally
charged;
E2.A10.1.2.2. A single serious crime or multiple lesser
offenses.
E2.A10.1.3. Conditions that could mitigate security
concerns include:
E2.A10.1.3.1. The criminal behavior was not recent;
E2.A10.1.3.2. The crime was an isolated incident;
E2.A10.1.3.3. The person was pressured or coerced into
committing the act and those pressures are no longer
present in that person's life;
E2.A10.1.3.4. The person did not voluntarily commit
the act and/or the factors leading to the violation
are not likely to recur;
E2.A10.1.3.5. Acquittal;
E2.A10.1.3.6. There is clear evidence of successful
rehabilitation.
E2.A11. ATTACHMENT 11 TO ENCLOSURE 2
GUIDELINE K
Security Violations
E2.A11.1.1. The Concern: Noncompliance with security
regulations raises doubt about an individual's trustworthiness,
willingness, and ability to safeguard classified information.
E2.A11.1.2. Conditions that could raise a security
concern and may be disqualifying include:
E2.A11.1.2.1. Unauthorized disclosure of classified
information;
E2.A11.1.2.2. Violations that are deliberate or multiple
or due to negligence.
E2.A11.1.3. Conditions that could mitigate security
concerns include actions that:
E2.A11.1.3.1. Were inadvertent;
E2.A11.1.3.2. Were isolated or infrequent;
E2.A11.1.3.3. Were due to improper or inadequate training;
E2.A11.1.3.4. Demonstrate a positive attitude towards
the discharge of security responsibilities.
E2.A12. ATTACHMENT 12 TO ENCLOSURE 2
GUIDELINE L
Outside Activities
E2.A12.1.1. The Concern: Involvement in certain types
of outside employment or activities is of security concern
if it poses a conflict with an individual's security
responsibilities and could create an increased risk
of unauthorized disclosure of classified information.
E2.A12.1.2. Conditions that could raise a security
concern and may be disqualifying include any service,
whether compensated, volunteer, or employment with:
E2.A12.1.2.1. A foreign country;
E2.A12.1.2.2. Any foreign national;
E2.A12.1.2.3. A representative of any foreign interest;
E2.A12.1.2.4. Any foreign, domestic, or international
organization or person engaged in analysis, discussion,
or publication of material on intelligence, defense,
foreign affairs, or protected technology.
E2.A12.1.3. Conditions that could mitigate security
concerns include:
E2.A12.1.3.1. Evaluation of the outside employment
or activity indicates that it does not pose a conflict
with an individual's security responsibilities;
E2.A12.1.3.2. The individual terminates the employment
or discontinues the activity upon being notified that
it is in conflict with his or her security responsibilities.
E2.A13. ATTACHMENT 13 TO ENCLOSURE 2
GUIDELINE M
Misuse of Information Technology Systems
E2.A13.1.1. The Concern: Noncompliance with rules,
procedures, guidelines or regulations pertaining to
information technology systems may raise security concerns
about an individual's trustworthiness, willingness,
and ability to properly protect classified systems,
networks, and information. Information Technology
Systems include all related equipment used for the communication,
transmission, processing, manipulation, and storage
of classified or sensitive information.
E2.A13.1.2. Conditions that could raise a security
concern and may be disqualifying include:
E2.A13.1.2.1. Illegal or unauthorized entry into any
information technology system;
E2.A13.1.2.2. Illegal or unauthorized modification,
destruction, manipulation, or denial of access to information
residing on an information technology system;
E2.A13.1.2.3. Removal (or use) of hardware, software
or media from any information technology system without
authorization, when specifically prohibited by rules,
procedures, guidelines or regulations;
E2.A13.1.2.4. Introduction of hardware, software or
media into any information technology system without
authorization, when specifically prohibited by rules,
procedures, guidelines or regulations;
E2.A13.1.3. Conditions that could mitigate security
concerns include:
E2.A13.1.3.1. The misuse was not recent or significant;
E2.A13.1.3.2. The conduct was unintentional or inadvertent;
E2.A13.1.3.3. The introduction or removal of media
was authorized;
E2.A13.1.3.4. The misuse was an isolated event;
E2.A13.1.3.5. The misuse was followed by a prompt,
good faith effort to correct the situation.
E3. ENCLOSURE 3
ADDITIONAL PROCEDURAL GUIDANCE
E3.1.1. When the DISCO cannot affirmatively find that
it is clearly consistent with the national interest
to grant or continue a security clearance for an applicant,
the case shall be promptly referred to the DOHA.
E3.1.2. Upon referral, the DOHA shall make a prompt
determination whether to grant or continue a security
clearance, issue a statement of reasons (SOR) as to
why it is not clearly consistent with the national interest
to do so, or take interim actions, including but not
limited to:
E3.1.2.1. Direct further investigation.
E3.1.2.2. Propound written interrogatories to the applicant
or other persons with relevant information.
E3.1.2.3. Requiring the applicant to undergo a medical
evaluation by a DoD Psychiatric Consultant.
E3.1.2.4. Interviewing the applicant.
E3.1.3. An unfavorable clearance decision shall not
be made unless the applicant has been provided with
a written SOR that shall be as detailed and comprehensive
as the national security permits. A letter of instruction
with the SOR shall explain that the applicant or Department
Counsel may request a hearing. It shall also explain
the adverse consequences for failure to respond to the
SOR within the prescribed time frame.
E3.1.4. The applicant must submit a detailed written
answer to the SOR under oath or affirmation that shall
admit or deny each listed allegation. A general denial
or other similar answer is insufficient. To be entitled
to a hearing, the applicant must specifically request
a hearing in his or her answer. The answer must be
received by the DOHA within 20 days from receipt of
the SOR. Requests for an extension of time to file
an answer may be submitted to the Director, DOHA, or
designee, who in turn may grant the extension only upon
a showing of good cause.
E3.1.5. If the applicant does not file a timely and
responsive answer to the SOR, the Director, DOHA, or
designee, may discontinue processing the case, deny
issuance of the requested security clearance, and direct
the DISCO to revoke any security clearance held by the
applicant.
E3.1.6. Should review of the applicant’s answer to
the SOR indicate that allegations are unfounded, or
evidence is insufficient for further processing, Department
Counsel shall take such action as appropriate under
the circumstances, including but not limited to withdrawal
of the SOR and transmittal to the Director for notification
of the DISCO for appropriate action.
E3.1.7. If the applicant has not requested a hearing
with his or her answer to the SOR and Department Counsel
has not requested a hearing within 20 days of receipt
of the applicant’s answer, the case shall be assigned
to the Administrative Judge for a clearance decision
based on the written record. Department Counsel shall
provide the applicant with a copy of all relevant and
material information that could be adduced at a hearing.
The applicant shall have 30 days from receipt of the
information in which to submit a documentary response
setting forth objections, rebuttal, extenuation, mitigation,
or explanation, as appropriate.
E3.1.8. If a hearing is requested by the applicant
or Department Counsel, the case shall be assigned to
the Administrative Judge for a clearance decision based
on the hearing record. Following issuance of a notice
of hearing by the Administrative Judge, or designee,
the applicant shall appear in person with or without
counsel or a personal representative at a time and place
designated by the notice of hearing. The applicant
shall have a reasonable amount of time to prepare his
or her case. The applicant shall be notified at least
15 days in advance of the time and place of the hearing,
which generally shall be held at a location in the United
States within a metropolitan area near the applicant’s
place of employment or residence. A continuance may
be granted by the Administrative Judge only for good
cause. Hearings may be held outside of the United
States in NATO cases, or in other cases upon a finding
of good cause by the Director, DOHA, or designee.
E3.1.9. The Administrative Judge may require a pre-hearing
conference.
E3.1.10. The Administrative Judge may rule on questions
on procedure, discovery, and evidence and shall conduct
all proceedings in a fair, timely, and orderly manner.
E3.1.11. Discovery by the applicant is limited to non-privileged
documents and materials subject to control by the DOHA.
Discovery by Department Counsel after
issuance of an SOR may be granted by the Administrative
Judge only upon a showing of good cause.
E3.1.12. A hearing shall be open except when the applicant
requests that it be closed, or when the Administrative
Judge determines that there is a need to protect classified
information or there is other good cause for keeping
the proceeding closed. No inference shall be drawn as
to the merits of a case on the basis of a request that
the hearing be closed.
E3.1.13. As far in advance as practical, Department
Counsel and the applicant shall serve one another with
a copy of any pleading, proposed documentary evidence,
or other written communication to be submitted to the
Administrative Judge.
E3.1.14. Department Counsel is responsible for presenting
witnesses and other evidence to establish facts alleged
in the SOR that have been controverted.
E3.1.15. The applicant is responsible for presenting
witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by the applicant or proven
by Department Counsel, and has the ultimate burden of
persuasion as to obtaining a favorable clearance decision.
E3.1.16. Witnesses shall be subject to cross-examination.
E3.1.17. The SOR may be amended at the hearing by the
Administrative Judge on his or her own motion, or upon
motion by Department Counsel or the applicant, so as
to render it in conformity with the evidence admitted
or for other good cause. When such amendments are
made, the Administrative Judge may grant either party’s
request for such additional time as the Administrative
Judge may deem appropriate for further preparation or
other good cause.
E3.1.18. The Administrative Judge hearing the case
shall notify the applicant and all witnesses testifying
that 18 U.S.C. 1001 (reference (c)) is applicable.
E3.1.19. The Federal Rules of Evidence (28 U.S.C. 101
et seq. (reference (d)) shall serve as a guide. Relevant
and material evidence may be received subject to rebuttal,
and technical rules of evidence may be relaxed, except
as otherwise provided herein, to permit the development
of a full and complete record.
E3.1.20. Official records or evidence compiled or created
in the regular course of business, other than DoD personnel
background reports of investigation (ROI), may be received
and considered by the Administrative Judge without authenticating
witnesses, provided that such information has been furnished
by an investigative agency pursuant to its responsibilities
in connection with assisting the Secretary of Defense,
or the Department or Agency head concerned, to safeguard
classified information within industry under E.O. 10865
(enclosure 1.). An ROI may be received with an authenticating
witness provided it is otherwise admissible under the
Federal Rules of Evidence (28 U.S.C. 101 et seq. (reference
(d)).
E3.1.21. Records that cannot be inspected by the applicant
because they are classified may be received and considered
by the Administrative Judge, provided the GC, DoD, has:
E3.1.21.1. Made a preliminary determination that such
evidence appears to be relevant and material.
E3.1.21.2. Determined that failure to receive and consider
such evidence would be substantially harmful to the
national security.
E3.1.22. A written or oral statement adverse to the
applicant on a controverted issue may be received and
considered by the Administrative Judge without affording
an opportunity to cross-examine the person making the
statement orally, or in writing when justified by the
circumstances, only in either of the following circumstances:
E3.1.22.1. If the head of the Department or Agency
supplying the statement certifies that the person who
furnished the information is a confidential informant
who has been engaged in obtaining intelligence information
for the Government and that disclosure of his or her
identity would be substantially harmful to the national
interest; or
E3.1.22.2. If the GC, DoD, has determined the statement
concerned appears to be relevant, material, and reliable;
failure to receive and consider the statement would
be substantially harmful to the national security; and
the person who furnished the information cannot appear
to testify due to the following:
E3.1.22.2.1. Death, severe illness, or similar cause,
in which case the identity of the person and the information
to be considered shall be made available to the applicant;
or
E3.1.22.2.2. Some other cause determined by the Secretary
of Defense, or when appropriate by the Department or
Agency head, to be good and sufficient.
E3.1.23. Whenever evidence is received under items
E3.1.21. or E3.1.22., above, the applicant shall be
furnished with as comprehensive and detailed a summary
of the information as the national security permits.
The Administrative Judge and Appeal Board may make
a clearance decision either favorable or unfavorable
to the applicant based on such evidence after giving
appropriate consideration to the fact that the applicant
did not have an opportunity to confront such evidence,
but any final determination adverse to the applicant
shall be made only by the Secretary of Defense, or the
Department or Agency head, based on a personal review
of the case record.
E3.1.24. A verbatim transcript shall be made of the
hearing. The applicant shall be furnished one copy
of the transcript, less the exhibits, without cost.
E3.1.25. The Administrative Judge shall make a written
clearance decision in a timely manner setting forth
pertinent findings of fact, policies, and conclusions
as to the allegations in the SOR, and whether it is
clearly consistent with the national interest to grant
or continue a security clearance for the applicant.
The applicant and Department Counsel shall each be
provided a copy of the clearance decision. In cases
in which evidence is received under items E3.1.21. and
E3.1.22., above, the Administrative Judge's written
clearance decision may require deletions in the interest
of national security.
E3.1.26. If the Administrative Judge decides that it
is clearly consistent with the national interest for
the applicant to be granted or to retain a security
clearance, the DISCO shall be so notified by the Director,
DOHA, or designee, when the clearance decision becomes
final in accordance with item E3.1.36., below.
E3.1.27. If the Administrative Judge decides that it
is not clearly consistent with the national interest
for the applicant to be granted or to retain a security
clearance, the Director, DOHA, or designee, shall expeditiously
notify the DISCO, which shall in turn notify the applicant's
employer of the denial or revocation of the applicant's
security clearance. The letter forwarding the Administrative
Judge's clearance decision to the applicant shall advise
the applicant that these actions are being taken, and
that the applicant may appeal the Administrative Judge's
clearance decision.
E3.1.28. The applicant or Department Counsel may appeal
the Administrative Judge's clearance decision by filing
a written notice of appeal with the Appeal Board within
15 days after the date of the Administrative Judge's
clearance decision. A notice of appeal received after
15 days from the date of the clearance decision shall
not be accepted by the Appeal Board, or designated Board
Member, except for good cause. A notice of cross-appeal
may be filed with the Appeal Board within 10 days of
receipt of the notice of appeal. An untimely cross
appeal shall not be accepted by the Appeal Board, or
designated Board Member, except for good cause.
E3.1.29. Upon receipt of a notice of appeal, the Appeal
Board shall be provided the case record. No new evidence
shall be received or considered by the Appeal Board.
E3.1.30. After filing a timely notice of appeal, a
written appeal brief must be received by the Appeal
Board within 45 days from the date of the Administrative
Judge's clearance decision. The appeal brief must
state the specific issue or issues being raised, and
cite specific portions of the case record supporting
any alleged error. A written reply brief, if any,
must be filed within 20 days from receipt of the appeal
brief. A copy of any brief filed must be served upon
the applicant or Department Counsel, as appropriate.
E3.1.31. Requests for extension of time for submission
of briefs may be submitted to the Appeal Board or designated
Board Member. A copy of any request for extension
of time must be served on the opposing party at the
time of submission. The Appeal Board, or designated
Board Member, shall be responsible for controlling the
Appeal Board's docket, and may enter an order dismissing
an appeal in an appropriate case or vacate such an order
upon a showing of good cause.
E3.1.32. The Appeal Board shall address the material
issues raised by the parties to determine whether harmful
error occurred. Its scope of review shall be to determine
whether or not:
E3.1.32.1. The Administrative Judge's findings of fact
are supported by such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion
in light of all the contrary evidence in the same record.
In making this review, the Appeal Board shall give
deference to the credibility determinations of the Administrative
Judge;
E3.1.32.2. The Administrative Judge adhered to the
procedures required by E.O. 10865 (enclosure 1.) and
this Directive; or
E3.1.32.3. The Administrative Judge's rulings or conclusions
are arbitrary, capricious, or contrary to law.
E3.1.33. The Appeal Board shall issue a written clearance
decision addressing the material issues raised on appeal.
The Appeal Board shall have authority to:
E3.1.33.1. Affirm the decision of the Administrative
Judge;
E3.1.33.2. Remand the case to an Administrative Judge
to correct identified error. If the case is remanded,
the Appeal Board shall specify the action to be taken
on remand; or
E3.1.33.3. Reverse the decision of the Administrative
Judge if correction of identified error mandates such
action.
E3.1.34. A copy of the Appeal Board's written clearance
decision shall be provided to the parties. In cases
in which evidence was received under items E3.1.21.
and E3.1.22., above, the Appeal Board's clearance decision
may require deletions in the interest of national security.
E3.1.35. Upon remand, the case file shall be assigned
to an Administrative Judge for correction of error(s)
in accordance with the Appeal Board's clearance decision.
The assigned Administrative Judge shall make a new
clearance decision in the case after correcting the
error(s) identified by the Appeal Board. The Administrative
Judge's clearance decision after remand shall be provided
to the parties. The clearance decision after remand
may be appealed pursuant to items E3.1.28. to E3.1.35.,
above.
E3.1.36. A clearance decision shall be considered final
when:
E3.1.36.1. A security clearance is granted or continued
pursuant to item E3.1.2., above;
E3.1.36.2. No timely notice of appeal is filed;
E3.1.36.3. No timely appeal brief is filed after a
notice of appeal has been filed;
E3.1.36.4. The appeal has been withdrawn;
E3.1.36.5. When the Appeal Board affirms or reverses
an Administrative Judge's clearance decision; or
E3.1.36.6. When a decision has been made by the Secretary
of Defense, or the Department or Agency head, under
to item E3.1.23., above. The Director, DOHA, or designee,
shall notify the DISCO of all final clearance decisions.
E3.1.37. An applicant whose security clearance has
been finally denied or revoked by the DOHA is barred
from reapplication for 1 year from the date of the initial
unfavorable clearance decision.
E3.1.38. A reapplication for a security clearance must
be made initially by the applicant's employer to the
DISCO and is subject to the same processing requirements
as those for a new security clearance application.
The applicant shall thereafter be advised he is responsible
for providing the Director, DOHA, with a copy of any
adverse clearance decision together with evidence that
circumstances or conditions previously found against
the applicant have been rectified or sufficiently mitigated
to warrant reconsideration.
E3.1.39. If the Director, DOHA, determines that reconsideration
is warranted, the case shall be subject to this Directive
for making a clearance decision.
E3.1.40. If the Director, DOHA, determines that reconsideration
is not warranted, the DOHA shall notify the applicant
of this decision. Such a decision is final and bars
further reapplication for an additional one year period
from the date of the decision rejecting the reapplication.
E3.1.41. Nothing in this Directive is intended to give
an applicant reapplying for a security clearance any
greater rights than those applicable to any other applicant
under this Directive.
E3.1.42. An applicant may file a written petition,
under oath or affirmation, for reimbursement of loss
of earnings resulting from the suspension, revocation,
or denial of his or her security clearance. The petition
for reimbursement must include as an attachment the
favorable clearance decision and documentation supporting
the reimbursement claim. The Director, DOHA, or designee,
may in his or her discretion require additional information
from the petitioner.
E3.1.43. Claims for reimbursement must be filed with
the Director, DOHA, or designee, within 1 year after
the date the security clearance is granted. Department
Counsel generally shall file a response within 60 days
after receipt of applicant's petition for reimbursement
and provide a copy thereof to the applicant.
E3.1.44. Reimbursement is authorized only if the applicant
demonstrates by clear and convincing evidence to the
Director, DOHA, that all of the following conditions
are met:
E3.1.44.1. The suspension, denial, or revocation was
the primary cause of the claimed pecuniary loss; and
E3.1.44.2. The suspension, denial, or revocation was
due to gross negligence of the Department of Defense
at the time the action was taken, and not in any way
by the applicant's failure or refusal to cooperate.
E3.1.45. The amount of reimbursement shall not exceed
the difference between the earnings of the applicant
at the time of the suspension, revocation, or denial
and the applicant's interim earnings, and further shall
be subject to reasonable efforts on the part of the
applicant to mitigate any loss of earnings. No reimbursement
shall be allowed for any period of undue delay resulting
from the applicant's acts or failure to act. Reimbursement
is not authorized for loss of merit raises and general
increases, loss of employment opportunities, counsel's
fees, or other costs relating to proceedings under this
Directive.
E3.1.46. Claims approved by the Director, DOHA, shall
be forwarded to the Department or Agency concerned for
payment. Any payment made in response to a claim for
reimbursement shall be in full satisfaction of any further
claim against the United States or any Federal Department
or Agency, or any of its officers or employees.
E3.1.47. Clearance decisions issued by Administrative
Judges and the Appeal Board shall be indexed and made
available in redacted form to the public.
