Things are not always black and white in security adjudications. A prime example is the question of whether a Guideline J, Criminal Conduct concern could follow any arrest, even without a charge or conviction.

Short answer? Yes.

If you find yourself getting arrested, take immediate action to avoid further risking your security clearance.

What is Guideline J, Criminal Conduct?

Among the Adjudicative Guidelines, the logic of Guideline J is fairly straightforward: criminal activity, “[b]y its very nature, calls into question a person’s ability or willingness to comply with laws, rules, and regulations.” SEAD-4 ¶ 30.

But Guideline J, “Criminal Conduct” applies in even minor offenses when they are part of a pattern of rule breaking behavior—not just serious felonies. Any of the following examples may trigger security concern under Guideline J:

• Numerous traffic violations
• Credible allegations of criminal conduct, even without an arrest
• Dishonorable discharge from the military
• Violating parole
• Failing to complete a court-ordered program, like rehab or anger management

What if I am arrested but not charged or convicted?

Many security clearance holders believe that Guideline J is invoked only if there is a criminal conviction. However, concerns under Guideline J are present simply due to an arrest, even if a criminal charge was never brought or was dismissed.

Adjudicators still must determine if the actions which resulted in arrest occurred according to a preponderance of the evidence. A preponderance requires proving something is more likely than not true. The preponderance standard is a lower standard than that used in criminal convictions: beyond a reasonable doubt.

While the evidence of your activity might not meet the standard for a criminal conviction (beyond a reasonable doubt), it could nonetheless meet the standard needed to revoke a security clearance: a preponderance. Under SEAD-4, evidence of criminal conduct—regardless of whether the individual was formally charged, prosecuted, or convicted—is enough to trigger Guideline J concerns. This only requires demonstrating that it is more likely than not true.

How to Protect Your Security Clearance After an Arrest

First: Submit a well-written report of the arrest to your security officer.

Do not make the mistake of avoiding a security clearance concern by failing to report the concern. That will only compound your problems. Sometimes the best thing we can do is the hardest thing to do. For clearance holders, that means reporting any arrest. You should never verbally report the incident. The report should be a well-written self-report containing relevant mitigation.

I have often heard from clients over the years that they were unsure whether the arrest needed to be reported because either (A) charges were dropped, or (B) charges had not been brought yet. This is a mistake.

Failing to report an arrest could potentially jeopardize a security clearance due to a lack of candor under Guideline E, Personal Conduct. There is a saying that bad news does not get better with time, and that is certainly the case for reporting possible security clearance concerns.

A concern about criminal conduct can be mitigated by:

• Self-reporting
• Evidence the concern is infrequent
• Evidence the incident happened under duress
• Demonstrated rehabilitation
• Charges being dismissed
• Charges never being brought

By failing to disclose an arrest, you have turned a concern under one guideline into a concern under multiple guidelines. Guideline E, Personal Conduct has a different set of mitigating factors from Guideline J, and these can be even more challenging to prove.

Example: An individual is arrested for a DUI and never informs their FSO. They receive an SOR with allegations under Guideline J and Guideline E. With careful mitigation, they might have resolved the initial Guideline J violation pertaining to the arrest itself. The added Guideline E concern from failing to report the arrest may be what ultimately results in security clearance revocation.

Second: Take ownership of the situation with a self-report.

Presenting a self-report that highlights mitigating factors under Guideline J could provide an adjudicator with sufficient evidence to resolve the concern before ever reaching a Statement of Reasons (SOR).

Following an arrest, your self-report should address any mitigating factors that apply in your case. While there is no magic bullet that will without a doubt mitigate a Guideline J concern, the timely submission of a self-report can satisfy a concern before it snowballs into a Statement of Reasons (SOR).

Third: Seek appropriate counsel.

Understand that a criminal proceeding is not the same as a security clearance adjudication. If you are represented by counsel for your criminal arrest, then you will receive advice from counsel on how to mitigate criminal liability.

That advice is not applicable to your security clearance and, in some instances, could actively undermine your security clearance adjudication. Consulting with a security clearance attorney on how to mitigate an arrest is the best way to preserve your clearance and your career.

Tully Rinckey attorneys understand that issues involving security clearances can be challenging, and they will handle your matter with the attention and tact it deserves. If you have additional questions, our team of dedicated security clearance attorneys is available to assist you today. Please call 8885294543, or schedule a consultation online.

Chris Snowden, Esq. is an Associate Attorney at the Ladera Ranch office of Tully Rinckey PLLC, where he focuses his practice on national security law and federal employment. Chris represents clients who have security clearance issues against agencies such as CIA, NSA, DIA, DOD, NRO, and DOE. He has represented and advised clients in employment matters related to the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), Office of Special Counsel (OSC), and various Offices of the Inspector General (OIG). He has a proven record of resolving cases favorably on behalf of his clients.