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DEPARTMENT OF STATEDepartment of State EmployeesQ: Who conducts the investigations for applicants for security clearances for the Department of State? A: The Bureau of Diplomatic Security’s Office of Personnel Security and Suitability (PSS) conducts the investigations for all applicants, employees and employees of contractors for the Department of State. Q: What types of clearances are issued by the Department of State? A: All positions at the Department of State are considered to be critical-sensitive, unless determined by the Bureau of Diplomatic Security (DS) to be otherwise. Critical-sensitive describes a position that has access to top-secret information. Unless DS considers a position to be something other than critical-sensitive, each employee will require top secret clearance. If DS considers a position to be non-critical sensitive, those employees will require either secret or confidential clearance. Q: After the investigation occurs, who adjudicates and what decisions can be reached upon adjudication? A: Review of the investigation and adjudication of the decision whether to grant security clearance lies with the PSS. Upon adjudication the PSS may decide to request further investigation; refer the case to Bureau of Human Resources to determine whether the applicant is suitable for employment at the Department of State; issue affirmative clearance determinations or recommend denial, revocation or reduction of security clearance; or recommend suspension of security clearance while further details are being worked out. Q: How does the case proceed if PSS recommends a denial, revocation or reduction of security clearance? A: Once PSS comes to the conclusion clearance should be denied, revoked, or reduced, that recommendation is forwarded to the Director, Diplomatic Security Service along with the complete file of the investigation, who will then approve or deny PSS’s recommendation. PSS will also issue a letter of intent explaining the action taken, the reasons for security concern upon which the action taken is based, and advise the individuals of their procedural rights, as well as their right to the information in the investigative file. Q: Can I respond to the Letter of Intent? A: Yes, you may respond in writing to the letter of intent describing the recommendation of denial, revocation or reduction in security clearance. Upon receipt of a response letter, the PSS will forward that letter along to the Director, Diplomatic Security Service, who will then make a determination. Q: What can I do if the Director, Diplomatic Security Service sustains the recommendation to deny, revoke or reduce my security clearance? A: If the Director, Diplomatic Security Service sustains the recommendation, you may formally appeal your case. You must submit your request for appeal within 30 days of receiving notice of the Director, Diplomatic Security Service’s intention to sustain the recommendation of denial, revocation or reduction. Q: After I request an appeal, how will the appeal proceed? A: The Assistant Secretary for Diplomatic Security will transmit the appeal, the complete file, and his recommendations to the Undersecretary of Management. The Undersecretary of Management will then convene a three-person panel who will consider the appeal. The appeal panel will consist of Under Secretary for Management, the Assistant Secretary for Administration, and the Director General of the Foreign Service and Director of Human Resources. If the Assistant Secretary or Director General is unavailable, the Undersecretary will appoint a senior manager from that member’s bureau instead. If the Undersecretary is unavailable, the Deputy Secretary will appoint an appropriate substitute. You will have the opportunity to review the investigative file and recommendations against you. You will then be able to respond in writing to the Bureau of Diplomatic Security’s recommendations. You will have the opportunity to introduce new information, evidence, affidavits, and arguments to refute or mitigate the security concerns. You are permitted to personally appear before the appellate panel. However, you cannot directly or cross-examine witnesses. The panel will provide the final reply to you regarding your status. Q: Do I have the right to representation? You have the right to counsel. DS will also afford you with Weingarten rights (union representation), for those to whom these rights are applicable. Counsel is allowed throughout the entire process, not just once an appeal is filed. Department of State Contractor Employees Q: Who investigates and adjudicates my application for security clearance as an employee of a contractor for the Department of State? A: Since the Department of State is part of the National Industrial Security Program, Defense Industrial Security Clearance Office issues personnel security clearances for employees of contractors. Therefore, the initial request for security clearance will be made by the field security officer to DISCO, who will then forward the complete applicant security package to the Office of Personnel Management, who will conduct the investigation and send the completed investigation back to DISCO to adjudicate the application. In addition to submitting a request for clearance to DISCO, the facility security officer of the contractor must also submit a visitor authorization request to the Bureau of Diplomatic Security, Office of Information Security Technology, Information Security Programs Division, Industrial Security Branch (INB). Q: What happens if DISCO recommends that I am denied security clearance? A: The process is the same as the one established for Department of Defense contractor employees. If DISCO recommends security clearance be denied or revoked, they send the case to the Defense Office of Hearings and Appeals (DOHA). DOHA then reviews the case and will either direct DISCO to grant or continue a clearance or will issue a statement of reasons (SOR) as to why it is not clearly consistent with the national interest to grant or continue a security clearance. DOHA can also direct a further investigation, issue written interrogatories to the applicant or other persons, require a medical evaluation, or interview the applicant. Q: What is the next step after DOHA issues an SOR indicating its intent not to grant security clearance? A: Along with the SOR, will also be an explanation of the opportunity to respond and a notice of a right to a hearing. The SOR will set forth which of the guidelines and disqualifying factors DOHA is using to deny clearance. If you choose to answer the SOR, DOHA must receive your answer within 20 days after you receive the SOR. If you wish to have a personal hearing (appear personally before an administrative judge), you must make the request in the response to the SOR. The response should provide a detailed answer to the SOR, admitting or denying each allegation, as well as providing other evidence of mitigating factors. You cannot just generally deny the entire SOR. The only way to get an extension for time to file a response is if there is good reason. If, based on the response, DOHA decides that the original accusations against you can no longer be supported, or if they decide there is not enough evidence of those accusations to go forward, they will withdraw the SOR and recommend DISCO to grant/continue security clearance. If they do not withdraw their SOR, the case will be forwarded to an administrative judge. Q: What happens after the case goes to the Administrative Judge? A: The following process depends on whether or not you requested a hearing. In either case you have the right to be represented by counsel or a personal representative of your choice. If a hearing was NOT requested: DOHA Department Counsel (the legal team that presents the case for denial of security clearance) will provide you with a file of all relevant materials that could be presented to the judge for making a decision based on the written record. After receiving this information you have 30 days to respond in writing. The response should contain any objections to and rebuttal of the evidence submitted by Department Counsel. It should also contain any mitigations and explanations for any disqualifying evidence. A quick note: Even if a hearing is not requested DOHA has the right to request a hearing as well. If a hearing IS requested: You will be notified at least 15 days in advance of the hearing of the time and place. Usually hearings are held in a city close to your residence or employment. You must appear in person on the date established by the judge. The hearing will be open unless you request otherwise. BEFORE the hearing, you and Department Counsel will exchange copies of any pleadings, documentary evidence, and other written materials that may be used as evidence. The hearing is adversarial. The Department Counsel has the responsibility of presenting witnesses and evidence that establish the facts in the SOR and you must present evidence and witnesses to rebut and offer mitigating factors. Ultimately, it is your job to persuade the judge that you should receive the clearance. The judge will issue a decision stating whether or not it is “clearly in the national interest” to grant a clearance. Q: Is there a right to appeal the Judge’s decision? A: You can appeal the judge’s decision within 15 days after the case has been decided. Department Counsel also has the opportunity to appeal the judge’s decision. Before appearing before the Appeal Board, each side will write an appeal brief, stating the issues. Specific portions of the record should be cited as proof of errors. If the Department Counsel is appealing, you have the opportunity to write a reply brief, but it must be submitted within 20 days after receiving Department Counsel’s brief. The Appeal Board has three administrative judges who will consider all the evidence already in the record. No new evidence will be considered. The Board’s decision is the final decision. The Appeal Board will either suggest clearance be granted, suggest clearance be revoked, or send the case back to the administrative judge to correct any identified errors or gather more information. Q: If upon the final decision security clearance is denied, can I ever reapply? A: Yes, but you are barred from reapplication for one year. Additionally, it is your responsibility to provide the Director, DOHA with a copy of any adverse clearance decisions and evidence that a reconsideration is warranted, by showing that the circumstances that lead to the denial of clearance have been resolved or mitigated. Military Employees Q: Who adjudicates my security clearance application? A: If you already have a security clearance from the Department of Defense (DoD), the Executive Order 12968 requires background investigations and eligibility determinations to be mutually and reciprocally accepted by all agencies. Therefore, unless the Department of State has reason to believe that an applicant does not meet the eligibility standards, they must accept and clearance from the DoD, and you will not need to be reinvestigated. However, if the Department of State has reason to believe and determines you will not meet the eligibility requirements, or if the prior investigation is older than 7 years for Top Secret or 10 years for Secret clearance, the Department of State has the right to reinvestigate and adjudicate. If you do not already have a clearance issued by the DoD and are applying directly to the Department of State, the procedures would be those set forth above for employees of the Department of State. Q: What happens if the Department of State does not accept the DoD’s clearance? A: If you are reinvestigated and denied a clearance, you have the same procedures available set forth above that are available for Department of State employees. | |