Rumor or Reality? Security Clearance Myths Put to Rest

Rumor or Reality #5: If I am great at my job, the government will overlook clearance concerns

Find out

Rumors about security clearances can change the choices people make in their professional and personal lives. This series addresses some of the more common myths.

 

Rumor or Reality #1: Using marijuana can cost me my clearance, even if it is legal under state law in the state where I use it.

 

Reality. Marijuana is illegal under federal law. If an individual uses marijuana while they have a clearance, they will very likely lose their clearance. Use of marijuana prior to having a clearance will likely raise concerns, but applicants may be able to mitigate those concerns under certain circumstances and with a promise not to be involved with illegal drugs in the future. As the Director of National Intelligence Avril Haines recently concluded in a memorandum to adjudicative agencies, prior marijuana use “may be relevant to adjudications” but it is “not determinative.” Read our blog for more information on Haines’ recent memo.

 

Rumor or Reality #2: Mental health treatment will negatively impact clearance prospects.

 

Rumor! In fact, security clearance guidance makes clear that mental health treatment can help, not harm, a clearance holder when it comes to issues like psychological conditions, drug and alcohol abuse, and sexual behaviors. As we explain in our blog post on the importance of mental health treatment, the Department of Defense and the Director of National Intelligence have been making efforts to dispel this myth that discourages security clearance holders from seeking mental health counseling. And, in 2020, DoD issued this Mental Health and Security Clearances Fact Sheet.

 

Worried this is just lip service? Don’t be. Although each case is fact-specific, DoD has issued favorable decisions to individuals with significant mental health history, including hospitalization and diagnosed mood disorders, based, in part, on a commitment to mental health treatment.

 

Rumor or Reality #3: It’s ok if I miss a tax filing deadline if I don’t owe taxes, so long as I file within three years.

 

Rumor!  Clearance holders are expected to timely file federal, state, and local taxes, whether or not taxes are owed. This rumor has been around for a while and seems to come from the “three-year rule” for receiving a refund from the federal government (and some state governments) in certain circumstances.* DOHA (the office of the Administrative Judges who decide these cases for DoD) has rejected this rumor:

 

We have addressed the “three-year rule” before. In ISCR Case No. 12-11357 at 4 (App. Bd. Jun. 17, 2016), we noted that the cited rule requires that a Federal taxpayer file within three years in order to receive a refund. This rule does not provide that taxpayers owed a refund can legitimately file after the April 15 deadline without first obtaining an extension. “The fact that the IRS may waive a late filing penalty does not constitute proof that tax returns were not filed late … The three-year statute of limitation is not a grant of a filing extension, but only a limitation on claiming a refund.” See also ISCR Case No. 14-02930 at 3 (App. Bd. Dec. 9, 2015).

 

Importantly, the SF-86 (Section 26) specifically asks whether the applicant has failed to file or pay Federal, state, or other taxes when required by law or ordinance. Read more about this issue in our 2022 tax season series here.

 

*Nothing in this post is intended as tax advice. The attorneys at Kalijarvi, Chuzi, Newman & Fitch, P.C. are not tax professionals. You should consult with a tax professional regarding any tax matters, including any conclusions you may draw from this post.

 

Rumor or Reality #4: Being completely honest about prior drug use is a mistake.

 

Rumor! And a really terrible one at that. We hear this rumor from every angle—from individuals who are deciding whether to disclose, to individuals who did disclose, to individuals who did not disclose and are wondering whether it was a mistake. First and foremost, applicants are required to sign security clearance applications under penalty of perjury. That should be the end of the discussion about whether to be honest but, if it was, we wouldn’t be here. So, here’s the deal— whether the government can trust you is the entire purpose of the background investigation. Sure, prior drug use may raise a concern, but that concern can likely be overcome, if not now, in the future. Lying, on the other hand, “strike[]s at the heart of the security clearance process” and is much more difficult to overcome. (And, yes, intentional omission is lying).

 

Take, for example, a recent case where the applicant lied about prior marijuana use, explaining that a co-worker, presumably with a clearance, told him that “you want to be honest, but you don’t want to be too honest because you say too much, you know, you might get denied your clearance,” and that “you shouldn’t say something if you don’t think it’s going to come up.” The applicant also explained that he thought it wasn’t relevant because he was “not that kind of person anymore.” Alas, you know how it ends—his prior marijuana use was overcome but he was denied a clearance for lying about it.

 

Still not convinced? Here are a few other decisions from DOHA in the last year:

 

At the end of the day, it won’t be your friend, your cousin, or the random guy on the internet explaining to a judge why you weren’t honest. It’s your application, your career, and your life. If you still have questions about this, or any other clearance issue, we are happy to discuss.

 

Rumor or Reality #5: If I am great at my job, the government will overlook clearance concerns.

 

Rumor! Even the most competent person can intentionally or unintentionally compromise national security. Thus, excellent performance or the importance of an individual’s work, alone, will not mitigate security concerns. Most DOHA decisions simply conclude that, despite one’s contributions, their clearance is denied or revoked, but this 2003 DOHA Appeal Board decision hits the nail on the head:

 

An applicant’s trustworthiness and reliability does not turn on whether the applicant possesses professional abilities. It is entirely possible for: (a) an applicant to be trustworthy and reliable without possessing any professional ability or talent; (b) an applicant to be untrustworthy and unreliable despite possessing a professional ability or talent; or (c) vice versa. Furthermore, the negative security implications of falsification do not turn on whether an applicant possesses a professional ability or talent.

 

That is not to say that performance and contributions are irrelevant—if favorable, they should be presented for consideration in the “whole person analysis” (that’s government lingo for “we recognize that you are a human being and potential issues should be taken in context”). Bottom line? Good performance and demonstrated good judgment, reliability, and trustworthiness in one’s duties are relevant, but a favorable decision will require more than that.

 

Elisabeth M. Baker-Pham, associate with DC employment law firm KCNFElisabeth (Lisa) Baker-Pham is co-chair of Kalijarvi, Chuzi, Newman & Fitch, P.C.’s security clearance practice, advising applicants through the clearance process and representing federal employees and contractors whose clearances have been threatened or suspended, or whose suitability for federal employment has been challenged. Lisa contributed to the firm’s 2021 edition of “Security Clearance Law and Procedure.” If you have any concerns or questions regarding activities that may implicate a security clearance, the attorneys at KCNF are experienced in clearance matters and are available to assist.