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Information Access Adjudicative Guidelines: Implementing
document of 30 August 2006 containing the 29 December 2005 amended
adjudicative guidelines for determining eligibility for access to
classified information. These new Guidelines are effective in all
cases for which a Statement of Reasons (SOR) was issued on or after
1 September 2006. In all cases for which an SOR was issued by 31
August 2006, the previously existing Guidelines (i.e., until they
are revised, those in the current, applicable DoD Directives, 5220.6
and 5200.2-R) will be applied. The applicable DoD Directives will
also be updated to reflect the revised Guidelines.
Of note, the new Guidelines specifically incorporate the provisions
of the "Smith Amendment" (10 U.S.C. 986) and the operating
instruction designates the officials authorized to grant waivers
in meritorious cases where mitigating factors exist. Of the four
categories specified in the Smith Amendment where a person is ineligible
for a security clearance, waivers are possible for two of those
categories (individuals who have received a Dishonorable Discharge
and/or has served more than one year in jail). Though the granting
of such waivers are expected to be infrequent, the new Guidelines
will open the logjam that has prevented DOHA from granting such
waivers to this point in time. DOHA
Operating Instruction No. 64 provides specific guidance for
consideration of waivers in Smith Amendment Cases.
Adjudicative Guidelines
PDF
DOHA Operating
Instruction No. 64 PDF
SF86 and SF86 Worksheet: To assist us in conducting
your Pre-Clearance Counseling, please find provided a copy of an
SF86 Questionnaire for National Security Positions and an SF86 worksheet
to assist in completing the SF86 itself. Completion and submission
of the worksheet will expedite our ability to identify potential
issues in your case and better assist you in working through the
adjudication process. Simply print these, fill them out, and either
scan and e-mail or fax the completed worksheet to our office. It
is extremely important that you be complete and honest in all of
your responses. Additionally, for those questions that ask "in
the last 7 years..." - please provide us with any information
relative to that subject line of questioning, even if it took place
more than 7 years ago. For example, "Module 27" of the
worksheets asks whether you have used any illegal drugs within the
last 7 years or since age 16, whichever is most recent. Though your
answer to THAT question may be "no," if more than 7 years
ago you did use illegal drugs it will be very important for us to
know about that. When you go through the clearance adjudication
process, the government is not limited to only asking about drug
use within the last 7 years. Thus, if we are not informed that you
may have previously used illegal drugs, we are not as able to assist
you in dealing with questions that may come up about that earlier
use. This same approach should be taken with regard to any potential
area of concern. The more information we have, the better we can
assist you. As with all communications, what your provide us is
protected to the full extent of the attorney-client privilege, regardless
of whether you ultimately retain our services.
Please be advised that when an SSBI (Single Scope Background Investigation)
is conducted (typically for a Top Secret/Sensitive Compartmented
Information - TS/SCI) Executive Order 12968 requires that for some
items the questions should be answered with a 10 (ten) year time
frame, not the 7 (seven) years that many SF-86 forms list. The specific
areas requiring a 10 (ten) year response are:
Section 9: Where You Have Lived;
Section 10: Where You Went to School;
Section 11: Your Employment Activities;
Section 22: Your Employment Record;
Section 23: Questions "e" and "f" - Your Police
Record; and,
Section 29: Public Record Civil Court Actions.
Over time one can expect that the revised forms asking the 10 year
time frame questions will replace the existing forms asking for
only the last 7 years, however, for the time being those newer forms
may not be available in all locations. Again, however, the specific
questions on the forms are only a "starting point" and
the background investigation can cover events more than 7 or 10
years ago.
SF86 PDF
SF86 Worksheet PDF
While there is no "requirement" that officials delegated
authority to grant Smith Amendment waivers issue an annual "report" on
the granting of such waivers, our office has contacted the office
of each of those officials in order to obtain information about
what types of cases have resulted in the granting of waivers. Though
a number of those officials have specifically stated that no such
report was prepared, the Director, Defense Office of Hearings and
Appeals, the Headquarters, Naval Criminal Investigative Service,
and Air Force Central Adjudication Facility have provided
information regarding the granting of Smith Amendment waivers. DOHA
granted three such waivers; the Navy granted one such waiver and
the Air Force granted no Smith Amendment waivers in 2006. Because
the authority to grant waivers in Smith Amendment cases was only
issued in August 2006, there were not very many cases to be considered
for such waivers by the end of Calendar Year 2006. From the
information that we have received, there were no reported cases
involving a Dishonorable Discharge for which a waiver was granted. For
those cases involving confinement served for a year or longer,
there was consistency of application of a number of general considerations: offenses
committed while a teenager or in the early 20s; at least thirty
years have passed since the commission of those offenses; undergoing
a periodic review of an existing clearance is better than being
a first-time applicant for a clearance; granting of pardons if
helpful; a clean record since the offenses for which the waiver
is required is probably essential to demonstrating a meritorious
case. Click HERE for more information.
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