Every year, thousands of persons holding or applying for a Department of Defense (DoD) secret or top secret clearance ["Applicants"] receive a "Statement of Reasons" [SOR] from the Defense Office of Hearings and Appeals (DOHA).

[If you are offered a job requiring SCI or SAP access, you probably will be required to take a "lifestyle" polygraph examination.  See our page entitled "The Polygraph Examination, Forewarned is Forearmed.]

The SOR recommends that the clearance should be denied/revoked. The letter accompanying the SOR instructs the Applicant to answer the SOR under oath by stating "I admit" or "I deny" to each of the allegations. The Applicant may also provide information that "explains, refutes, extenuates or mitigates the information set forth" in the SOR, and submit supporting documentation. The letter states: "Doing this may provide a basis for favorable resolution of your case without the need for further proceedings."

The Applicant would be well advised to consult with an attorney familiar with DOHA decisions and procedures and able to advise the Applicant regarding application of the Guidelines set forth in DoD Directive No. 5220.6, to the relevant facts, and to prepare for the Hearing.

In fact, the Applicant would have been better advised to consult with an attorney earlier in the clearance process, when responding to an Interrogatory [written questions requiring sworn responses], or even earlier, before being interviewed by an Office of Personnel Management (OPM) investigator, or earlier still when submitting the clearance application [e-QIP/ SF-86].

At each of these stages, the danger to the Applicant is that he/she may make statements or admissions which will be used to support denial of the clearance. Many Applicants, not understanding the nature of the process, will unnecessarily volunteer information in a naive attempt to "clear things up." In a sense, the clearance process might be compared to a criminal investigation, with the Applicant treated somewhat like a suspect and the writers of the SOR and Interrogatory and the interviewing investigator acting like detectives in gathering evidence that can result in denial/revocation of the clearance.

At the SOR stage, there has already been a determination by a DOHA adjudicator that the Applicant should be denied a clearance. If the case goes forward, as is likely, the Government's case presented to the Administrative Judge will usually consist mainly of Applicant's own responses to the SOR, Interrogatory, Interview and clearance application.

In the clearance application process, the Applicant cannot stand on the 5th Amendment Right against Self Incrimination. Also, the Applicant can be denied the clearance for "refusal or failure . . . to cooperate . . ." or for "refusal to provide full, frank and truthful answers to lawful questions" [see Guideline E: Personal Conduct]. Preparing how to take account of these realities while avoiding making ill-considered and potentially harmful statements may be helped by consulting with an attorney.

This article is not intended to provide legal advice, and should not be relied on as legal advice, by anyone. Any person should consult with an attorney of his/her own choosing for legal advice or counsel.