WASHINGTON, D.C. (Military.com) — An arrest does not automatically end a federal security clearance. It can, however, trigger mandatory reporting, temporary loss of classified access and a separate national security review that continues even if prosecutors dismiss the charge.
Air Force Maj. Jason Watson’s July 1 arrest at the U.S. Capitol illustrates how officials may examine the conduct behind an arrest without waiting for a criminal conviction.
Greg T. Rinckey, a founding partner at Tully Rinckey PLLC, said clearance adjudicators focus on judgment, reliability, compliance with regulations, personal conduct, possible criminal conduct and allegiance to the United States. Rinckey represents military members and federal employees in security clearance matters and previously served as both an Intelligence Officer and an Army judge advocate.
An Arrest Starts a Separate Clearance Review
Federal clearance holders must report arrests to their agency security office. The Defense Counterintelligence and Security Agency lists arrests among events that require self-reporting and directs military members to contact the security officer at their duty station.
Failure to disclose an arrest can create an additional personal-conduct concern because officials may view the omission as evidence of dishonesty or poor judgment.
Rinckey said prompt self-reporting also allows the clearance holder to explain the circumstances and present mitigating evidence before officials learn about the arrest elsewhere. “It always looks better to self-report an arrest rather than have it come to light” through another source, he said.
A criminal prosecution and a clearance review answer different questions. Prosecutors must prove guilt beyond a reasonable doubt. Clearance officials decide whether continued access to classified information remains clearly consistent with national security. Dismissal of a charge can help, but it does not prevent adjudicators from considering the underlying conduct.
Rinckey said Watson’s situation could raise issues under Security Executive Agent Directive 4 guidelines covering allegiance to the United States, personal conduct and criminal conduct. SEAD 4 requires officials to apply a whole-person analysis that considers favorable and unfavorable information, the seriousness and frequency of the conduct, the person’s maturity, rehabilitation and the likelihood of recurrence.
Suspension Can Precede a Final Decision
An agency can suspend access to classified information while an investigation remains open. That action does not necessarily constitute a final revocation, but it can prevent an employee or service member from performing duties that require access.
If adjudicators pursue a denial or revocation, the clearance holder generally receives a statement of reasons identifying the security concerns. DCSA permits military members and certain other personnel to submit a written response and request a virtual personal appearance before a senior adjudicator before the agency issues a final determination.
Rinckey described an effective response with the acronym “HAM”: honesty, accuracy and mitigation. The person should acknowledge supported facts, correct inaccuracies and provide evidence showing that the conduct does not present an ongoing security risk.
Favorable evaluations, character statements, a previously clean record, dismissed charges and credible evidence that the incident will not recur may support mitigation.
Appeals Depend on the Record and Mitigation
DCSA’s public guidance does not provide an overall success rate for military clearance appeals. Rinckey said challenges succeed “quite often” when the clearance holder can establish meaningful mitigation. A dismissed or reduced charge improves the defense, he said, but does not serve as a “get out of jail free card.”
After a final denial or revocation, a military member generally appeals through the Personnel Security Appeals Board associated with the service branch. DCSA states that an employer may request reconsideration one year after a final denial, revocation or appeal decision.
