All those who are hired for a federal position 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 governmental contractors.
Naturally, many people question what kind of information may become available to the government 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 crimes, like DUI, misdemeanors, and felonies, may have on the clearance process.
Levels of Security Clearance
Depending on the nature of the position, a different level of security clearance may be required. There are a few different layers to the various security clearances. It begins with three main classifications: non-sensitive positions, public trust positions, and national security positions. Non-sensitive and public trust positions require the lowest level of background check – usually conducted through an automated system.
Within national security checks, there are a further three levels of classification: confidential, secret, and top secret. Confidential is the lowest level and is usually required for positions in which one would have access to information that may cause some damage to national security. Secret classifications are for those positions with access to information, which could cause serious damage to national security, while top secret is a security clearance needed for those who will have access to information, which would cause exceptionally grave damage to national security. Security clearances must be reinvestigated – confidential clearances must be reviewed every 15 years while secret and top-secret clearances must be renewed every 10 and 5 years, respectively.
How does A DUI Impact a Security Clearance?
There is both good news and bad news. The good news is that being arrested, charged, or convicted of a DUI does not automatically mean you are ineligible for securing, or renewing, a security clearance. The bad news, however, is that it can have serious implications and, therefore, negatively impact the security clearance process.
The assigned security officer is tasked with taking a holistic approach to each applicant. This means elements such as time passed between incident(s), low incident frequency, outstanding circumstances related to the event, and any treatment programs to address substance 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.
How do Misdemeanor and Felony Cases Impact a Security Clearance?
There are three categories of applicants who are immediately disqualified from receiving a security clearance:
- A person who is currently a user or addicted to a controlled substance.
- Any individual deemed mentally incompetent.
- An individual dishonorably discharged from the military.
Outside these three circumstances, having a criminal conviction does not directly eliminate one from receiving a clearance, although it certainly will hurt the applicant’s chances.
A major issue with misdemeanors is if there is a clear and identifiable pattern of offenses. 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, which is the standard form filled out for security clearance applications, 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. Exceptions can be made for fines under $300, not involving drugs or alcohol.
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 a question on if this has occurred within the last 7 years, if the applicant was court-martialed (if military at time of incident) or is currently awaiting pending court action. When it comes to felony cases, security officers will view crimes involving either dishonesty (fraud, theft, embezzlement, etc.) and those which may expose the applicant to potential blackmail, in the harshest light.
For further questions relating to your security clearance application or how your criminal record may impact this process, contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or D.C. look at your case.