Hawaii’s substantial military presence requires many military personnel, Department of Defense employees, and civilian contractors to maintain security clearances to perform their job functions. If you are denied a security clearance in the first place, the denial usually means that you will not be hired for a job you may be otherwise highly qualified to perform. Even after security clearance has been granted, it can be revoked for any number of reasons, causing you to lose your present employment and the ability to work for another employer requiring security clearance.
Tom Farrell is one of the few attorneys in Hawaii who is qualified and highly experienced at representing military and civilian personnel before the Defense Industrial Security Clearance Office (DISCO) and the Defense Office of Hearings and Appeals (DOHA). In addition to being a litigator with over thirty (30) years of experience, Tom is a retired colonel, U.S. Army Reserve, and worked as a counterintelligence agent and military intelligence officer.
If your application for security clearance has been denied or if your present security clearance has been revoked, our strong recommendation is to immediately hire an experienced attorney to appeal the decision. Your career may depend on it.
What is the difference between a denial and a revocation of a Security Clearance?
If you are applying for a Security Clearance the adverse action is called a denial. If you already have a Security Clearance, the action is called a revocation.
How do I know if my clearance is about to be denied or revoked?
Your security manager will give you a “Letter of Intent” (LOI). The letter will state the intended action and the reasons (in a very summary fashion) and explain your appeal rights.
How do I appeal?
Typically, the LOI contains a form which you fill out and deliver to your security manager in a very short period of time—as little as five days. If you fail to do so in time, your rights to appeal are forfeited. Always appeal. Even if you have a very weak case, you can always withdraw your appeal later, but if you don’t make a timely request, you can’t turn back the clock.
How does the appeal process work?
This is a simplified explanation, but generally there are three steps. First, the individual submits a written appeal to the original adjudicator, either the service central clearance facility or the Defense Industrial Security Clearance Office (DISCO). If that appeal is not successful, then the individual may request a further appeal to the Defense Office of Hearings and Appeals (DOHA). Although a DOHA appeal may be had on strictly a paper review, the individual is entitled to request a personal appearance before a DOHA Administrative Judge. This is always a better approach. For contractors, the DOHA Administrative Judge makes the final decision, but for military personnel and DOD civilians, the judge makes a recommended decision, and the final decision is made by the Personnel Security Appeals Board (PSAB). The individual has no input to the PSAB, and its decisions are final and, except in very rare instances, not reviewable by a court of law.
What do the adjudicators or the DOHA Judge consider?
First and foremost, they consider factual evidence either refuting or mitigating the particular security concerns identified in the LOI. Second, they consider the “whole person” which generally entails a demonstration of the individual’s importance to national security, past contributions thereto, and anticipated future contributions. Ultimately, the question is whether the granting of a clearance is clearly consistent with the interests of national security.
How does one respond to specific security concerns?
It is important to review the published adjudication guidelines and address both aggravating and mitigating factors. Whenever possible, documentary evidence is far more helpful that mere assertions. For example, where an individual is deemed a security risk due to bankruptcy, a demonstration by way of current financial statements, bank statements, proof of ownership and value of assets, current debt statements, proof of income and expenses can all paint the picture that the individual is now financially stable. Mere protestations of loyalty are rarely successful.
How can I prepare?
When we accept a national security client, we assess what witnesses and documents might best make the case. Active client participation is essential. We frequently ask clients to obtain character references, and to provide performance evaluations and other supporting documentation. We also ask clients to identify potential witnesses and solicit their cooperation.
What happens at a personal appearance?
The personal appearance is a hearing before a DOHA Administrative Judge. These judges are lawyers and frequently retired JAG officers who are very knowledgeable about the adjudicative guidelines and who bring many years of military experience to the case. The typical hearing lasts for one to three hours. The government is typically represented by a DOHA attorney, who acts as a prosecutor. There are no rules of evidence, except relevance. In Hawaii, hearings are typically held by video teleconference at Pacific Fleet headquarters in Makalapa, Fort Shafter, or the Federal Building. The Administrative Judge is located in Burbank, or in some cases, in Washington, DC. Generally, witnesses should appear to testify in Hawaii, but we have had cases where some witnesses testified in Hawaii and some in Washington, while the Judge conducted the proceeding from Burbank.
Should I do this myself?
In most cases, loss of a Security Clearance means the eventual loss of one’s job or separation from military service. For military personnel, the loss of a clearance also means that they are highly unlikely to find post-separation employment in defense-related work. Tom Farrell is a trained counterintelligence agent, and a military intelligence officer with over two decades of experience. He has also served as security manager in almost every unit where he was assigned. Tom has seen too many cases of naïve do-it-yourselfers who lost their careers.