Updated on May 22nd, 2023 at 03:57 pm
All those who are hired for federal agencies must undergo some form of basic background investigation to determine if an individual is “reliable, trustworthy, of good conduct and character, and loyal to the United States.”
This goes for military personnel, government employees, or even government contractors.
Naturally, many people question what security concerns may become available to government agencies once investigators begin looking into personal, criminal, and financial history.
Since many people living in the District of Columbia and Maryland work for the federal government and often need security clearances, it is important to know what impact certain criminal offenses, like DUI, misdemeanors, and felonies, may have on the clearance review process.
Security clearance levels
Depending on the nature of the position, a different level of security clearance may be required. There are a few different layers of various security clearances. It begins with three main classifications:
- Non-sensitive positions – require the lowest level of background checks – usually conducted through an automated system.
- Public trust positions – require the lowest level of background checks – usually conducted through an automated system.
- National security positions – Within national security checks, there are three levels of classification:
- Confidential clearance – this is the lowest level and is usually required for positions in which unauthorized disclosure of information may cause some damage to national security. Confidential clearances must be reviewed every 15 years
- Secret clearance – this is a level of clearance where unauthorized disclosure of privileged information could cause serious damage to national security. Secret clearances must be reviewed every 10 years
- Top secret – is a security clearance needed for those who will have access to information, which would cause exceptionally grave damage to national security. Top Secret clearances must be reviewed every 5 years
Does a DUI affect security clearance?
Being arrested, charged, or convicted of a DUI does not automatically mean you are ineligible for securing, or renewing, a security clearance. However, it can have serious implications and negatively impact the security clearance process.
The assigned security officer is tasked with taking a holistic approach to each applicant. This means that with each background check performed, they are to look at the criminal conduct and the circumstances surrounding the event.
Some things they will review include:
- Is it an isolated incident?
- If it is not an isolated incident, how much time has passed between incidents?
- Low incident frequency
- Extraordinary circumstances related to the event
Any treatment programs attended to address substance or alcohol abuse problems can help mitigate concerns that a DUI case may cast on one’s character or judgment.
As always, in the case in which an applicant’s security clearance is canceled or denied due to a DUI, there is an appeal process.
What disqualifies you from getting security clearance?
Applicants that are immediately disqualified from receiving a security clearance are those currently using or addicted to a controlled substance, anyone deemed mentally incompetent by a mental health professional, or an individual dishonorably discharged from the military.
Outside these circumstances, having a criminal conviction is not an automatic disqualifier from receiving a clearance, although it certainly will hurt the applicant’s chances.
Other factors that federal agencies carefully evaluate and may lead to security clearance denial include:
- Allegiance to the US
- Crime of terrorism
- Foreign preference
- Sexual behavior
- Foreign influence
- Personal conduct
- Alcohol consumption
- Financial considerations including tax evasion, theft, bad credit history, and embezzlement
- Drug offenses
- Security violations
- Misusing IT systems
Does a misdemeanor affect security clearance?
A major issue with misdemeanors is if there is a clear and identifiable pattern of criminal behavior. This will inherently call into question the applicant’s ability to follow the rule of law, along with the individual’s judgment, reliability, or trustworthiness.
Problems with court-ordered rehabilitation or parole on a misdemeanor case may also reflect negatively.
It is important to note that for the SF-86 form, even a minor traffic incident in which law enforcement restricts the applicant’s personal freedom, is taken into custody, or is released with a promise of appearing in court at a later date, are all considered misdemeanor arrests.
However, exceptions can be made for lesser offenses (fines under $300) not involving drugs or alcohol.
Does a felony charge affect clearances?
If the applicant has a felony case against them, this could pose even larger barriers to a security clearance than a misdemeanor charge. The SF-86 asks questions related to any potential involvement of the applicant in a felony case, which features alcohol, drugs, firearms, or explosives.
It follows up with the questions of whether this has occurred within the last 7 years, was the applicant was court-martialed (if military at the time of the incident) or if he is currently awaiting pending court action.
When it comes to felony cases, security officers will view criminal conduct involving either dishonesty (fraud, theft, embezzlement, etc.) and those which may expose the applicant to potential blackmail, in the harshest light. If you are looking for assistance from a criminal defense attorney outside of DC look for this Cherry Hill, NJ lawyer.
Do I need to report expunged convictions on my SF-86?
The SF-86 form has a question that specifically requests you to list expunged and sealed records, including juvenile records. Even if your criminal record was expunged, be prepared to discuss it.
For further questions relating to your security clearance application process or how your criminal record may impact it, contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or D.C. review your case.