Overview of the Security Clearance Process in the DOD
In the Department of Defense (DOD), there is little difference in the process of obtaining a security clearance for contractors (AKA industrial employees), and federal employees or service members.
Both industrial personnel and federal employees require sponsorship. If your private contractor job requires access to classified information or sensitive material, your employer will sponsor you for clearance. They will be the ones to request that the security clearance application be made available to you. The application itself is the same for private and DOD employees: the Personnel Vetting Questionnaire (PVQ), formerly SF 86. Likewise, the same adjudicative guidelines (SEAD 4) apply in clearance eligibility determinations.
When it comes to security clearance revocation and denial, both DOD employees and contractors have the right to due process, including the right to appeal. The appeal stage is when important differences between federal contractors, and DOD employees or military personnel come into play.
Who Needs a Security Clearance? Contractors vs. Employees
Whatever the agency, whether contractor or government employee: you need a security clearance if your job requires access to classified information and/or sensitive material. It is less about the employee and more about the requirements of the position itself.
For example, if you work for a private company under contract with the Department of Defense and your position involves working in an area which routinely handles national security information—even if you yourself will not be working with classified information directly—you will likely require some level of clearance.
Differences in Clearance Sponsorship and Access
There is no functional difference for DOD employees versus private employees when it comes to clearance sponsorship and access. No one can apply for security clearance without sponsorship. If you occupy or are entering a position that requires access to sensitive information, and your employer has the authority from the federal government to do so, your employer will sponsor your security clearance. This is true of all federal agencies, industrial partners or contractors, and the military.
Once your security clearance is issued, you have eligibility for access only. It is still up to your employer, whether the DOD or a DOD contractor, to give you access to the classified workspace. You may have a security clearance and be denied access without a valid Need to Know (NTK). Whether you need to know is determined by your employer: federal or private.
Variations in Investigation and Adjudication
Up to the point of being notified of intent to revoke or deny a security clearance, contractors and DOD employees go through the same basic investigation and adjudication process. The extent, breadth, and depth of your background investigation depends upon the level of clearance you are applying for—Classified, Secret, Top Secret—not whether you are a private or DOD employee.
Your sponsoring employer, federal or industrial, will initiate the process and the application will be made available to you. After completing the PVQ (formerly Standard Form 86 or SF 86), you will be contacted by an investigator from the Defense Counterintelligence and Security Agency (DCSA) to arrange your personal subject interview. DCSA will also reach out to other references such as past employers, and other personal contacts as necessary.
If your application is missing information or more information is required, you will receive a Request for Interrogatory (RFI) or Supplemental Information Request (SIR) from DCSA. This is part of the investigation process, not necessarily an indication your clearance will be denied, but it should be taken very seriously.
After the investigation is complete, your clearance eligibility will either be approved, or you will receive a Notice of Intent to Deny or Revoke along with a Statement of Reasons (SOR). The SOR will identify which of the 13 adjudicative guidelines (found in SEAD 4) informed their decision and explain the reasoning behind their security concerns.
When contractors receive an SOR from DCSA, it is not a final decision. You are able to appeal the intent to deny or revoke. For military and government personnel, the decision is final until you successfully appeal.
The DOD Contractor Appeals Process
The appeals process differs somewhat for DOD employees and contractors. After notification of the government's intent to deny or revoke your clearance, contractors typically have only 20 days to respond, while government personnel have 30. However, extensions are available and often granted. Prior to denial or revocation, contractors have the opportunity to make a personal appearance. Military and DOD employees have the opportunity to make a personal appearance after receiving denial or revocation.
Contractor personnel appeals are processed through the Defense Office of Hearings and Appeals (DOHA). DOD Contractors have 15 days from the date of the judge's decision to submit a notice of appeal (then 30 days to submit an appeal brief). Contractors may not submit new evidence to support their appeal.
The DOHA Administrative Judge's decision is final for contractors (ISCR cases). For federal employees and military members, this is a recommendation only, not a final decision.
Contractors whose clearance was denied or revoked can reapply after one year with a new application. DOHA will request information to mitigate any previous security concerns which resulted in denial or revocation of clearance.
Legal Considerations for Each Group
In the event of security clearance denial or revocation, there are a number of very strict deadlines and procedures to be followed in the security clearance appeal process. For contractors, these deadlines are typically tighter.
Contractors do not have the opportunity to present new evidence to support their appeal. It is important to provide complete, truthful information from the beginning of the application process, and provide mitigating evidence when possible. A security clearance attorney can provide representation at appeal, but they are put to the best use well before an SOR is ever issued.
Job Security and Clearance Revocation Risks
It is advisable for contractor employees to contact a security clearance attorney in the following situations to minimize risk of losing security clearance eligibility and thus employment opportunities:
- You have been previously denied a clearance or had your clearance revoked
- You have filed for bankruptcy or have substantial debts
- You have a criminal record
- You have dual citizenship
- You are married to or live with a foreign national
- You have failed to file your taxes or owe the IRS money
- You use marijuana, regardless of whether it was legal in the state in which you used it
The security office at a given agency or contractor is charged with maintaining security, not protecting the careers of individual employees or applicants. For any federal employee, military personnel, or contractor who has concerns about their eligibility or has received an SOR (or in the DOE, Summary of Security Concerns), it is in their best interest to consult a security clearance attorney.
Please note: Though the security clearance processes in other agencies have many similarities, there are significant differences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
