Personal Conduct

The “Personal Conduct” criterion (Guideline E) of the National Security Adjudicative Guidelines encompasses a wide variety of dishonest or unreliable behavior not specifically covered under other adjudicative criteria. It also addresses multiple instances of minor misconduct covered under other criteria where the misconduct fails to reach the threshold of being considered a potentially disqualifying condition. About 30% of cases reviewed by Administrative Judges at the Defense Office of Hearings and Appeals (DOHA) cite Personal Conduct issues. It has been the second most frequently cited reason for clearance denial. Most of these cases involved deliberate falsification, omission or concealment of relevant information on the Standard Form 86 – SF86 (Questionnaire for National Security Positions). Other “Personal Conduct” issues are:

• Failure to cooperate with investigation
• Pattern of dishonest, unreliable, or rule-breaking behavior
• Vulnerability to coercion
• Association with persons involved in criminal activity
• Violation of a written commitment made as a condition of clearance or employment

Failure to provide truthful and candid answers during national security investigative or adjudicative processes is almost always cited due to applicants concealing information related to one of the other issues, such as financial matters, criminal conduct, drug involvement, and alcohol consumption.

Unfortunately in many falsification cases, the information the applicant tried to conceal would not have resulted in a clearance denial. But the act of providing false information on the SF86 was often fatal to the cases.

SECURITY CONCERN—DELIBERATE FALSIFICATION & OMISSION

If an applicant cannot be trusted to provide full and truthful answers to questions on the SF86 or to government security officials, it is extremely difficult to trust the applicant with classified national security information. Most conduct-related security issues can be mitigated by rehabilitation as evidenced by passage of time without recurrence of the conduct. However, concealing relevant unfavorable information or claiming unearned qualifications or achievements on an SF86 indicates a current unwillingness to comply with security requirements and casts serious doubts on an applicant’s honesty, trustworthiness, and judgment.

Potentially Disqualifying Conditions

Extract from the Adjudicative Guidelines

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities

(b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative

Since all questions on the SF86 are considered relevant, any deliberate omission, concealment, or falsification, including information that would not have made any difference in the adjudication, may be cause for clearance denial.

In recent years the misrepresentation of educational qualifications has gained increased importance in security clearance investigations and adjudication. Previously educational degrees were merely verified. Today the bona fides of questionable post-secondary schools are being scrutinized.

Potentially Mitigating Conditions

Extract from the Adjudicative Guidelines

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

Many applicants treat the SF86 like any other bureaucratic form and fill it out quickly without attention to accuracy or detail. Others view it as being comparable to an employment application form where a certain amount of “huffing and puffing,” as well as selective presenting and withholding of information are normal. Some honestly misunderstand the wording and the intent of the questions. Lawyers, work associates, and military recruiters occasionally give applicants bad advice about what must be disclose and what may be withheld on an SF86.

Mitigating alleged falsification is possible, if the applicant did not deliberately provide false information on an SF86. Mistake of fact, faulty memory, and misunderstanding can be plausible reasons for unintentionally providing false information. When applicants are given an opportunity to correct false information but repeat their false assertions, mitigation becomes impossible even if they later tell the truth. “Prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts” can be critical to successfully mitigating this issue.

Adjudicators consider the “whole person” when assessing applicants’ intent to falsify and their subsequent actions to correct false information. Mature, highly educated individuals are less likely than young military recruits to convince an adjudicator that they misunderstood questions, inadvertently made mistakes, or incorrectly relied on the advice of other people. When falsification is admittedly deliberate but the applicant promptly attempts to correct it before being confronted, adjudicators can sometimes make a favorable decision if the falsification was an isolated, uncharacteristic lapse in judgment by an otherwise responsible, honest individual.

SECURITY CONCERN—OTHER ISSUES

Potentially Disqualifying Conditions

Failure to cooperate with investigation

A security clearance is a privilege, not a right. Applicants can not be compelled to provide information or submit to other examinations, but refusal to fully cooperate in the security clearance process usually results in a clearance denial, because it creates the presumption that the applicant is hiding relevant information. Asserting the Fifth Amendment right against self-incrimination will not mitigate a refusal to cooperate or provide information. The SF86 provides some protection against criminal prosecution. Question #23 (Illegal Use of Drugs or Drug Activity) and question #27 (Use of Information Technology Systems) both included the caveat, “Neither your truthful responses nor information derived from your responses will be used as evidence against you in any subsequent criminal proceeding.”

Pattern of dishonest, unreliable, or rule-breaking behavior

When an applicant has been involved in multiple incidents of conduct that individually fall below the threshold for denying a clearance, the conduct can be evaluated in its totality to determine the applicant’s eligibility for a clearance. When reviewed separately, traffic infractions, a single misdemeanor arrest for shoplifting, issuing bad checks and minimal participation in copyrighted file sharing on a peer-to-peer network usually would not result in a clearance denial. But when reviewed under Guideline E, the sum of the conduct can become a potentially disqualifying condition.

Misconduct not specifically addressed under other adjudicative criteria can also evaluated under Guideline E. This includes such things as work- or school-related misconduct, rule violations, and dishonesty. It can also include failure to act in a responsible manner in one’s relationship to family, friends, neighbors and associates. As with conduct that falls below the threshold for clearance denial under a specific adjudicative criterion, this type of conduct is evaluated in its totality. Specifically addressed in Guideline E are:

• Misuse of employer’s time and resources
• Disruptive, violent, or other inappropriate behavior in the workplace
• Untrustworthy or unreliable behavior
• Pattern of dishonesty or rule violation

Vulnerability to coercion

Whenever a person attempts to conceal conduct that could cause serious embarrassment or problems with a spouse, family member, significant other, employer, or law enforcement/security agency, the potential for vulnerability to coercion exists. Examples include:

• Misrepresentation of professional or educational qualifications
• Concealment of potentially disqualifying conditions on any employment or security form
• Concealment of business or financial problems from family members
• Involvement in undetected criminal activity

When a person engages in seriously embarrassing or prohibited conduct in a foreign country or such conduct becomes know to foreign nationals, it significantly increases the possibility of exploitation by a foreign intelligence or security service and creates heightened security risk.

Association with persons involved in criminal activity

Close and continuing contact with anyone involved in criminal activity is a potentially disqualifying condition. Contact or communication with a person in prison or any other person who is no long involved in criminal conduct is not a disqualifying condition. Association with an immediate family member involved in criminal activity is evaluated based on the nature of the association, the nature of the criminal activity, and the potential for undesirable influence.

Violation of a written commitment made as a condition of clearance or employment

Occasionally security clearances are granted with conditions. Such conditions can include a promise to sever a relationship with a foreign business or organization, pay off delinquent debts by a certain date, or abstain from illegal use of drugs. A violation of a written condition for a clearance can be the basis for clearance revocation. Violations of written commitments made by individuals to employers as a condition of employment can also be a potentially disqualifying condition.

Potentially Mitigating Conditions

Extracted from the Adjudicative Guidelines

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress;

(f) the information was unsubstantiated or from a source of questionable reliability; and

(g) association with persons involved in criminal activities was unwitting, has ceased or occurs under circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

Adjudicators are admonished to consider “available, reliable information about the person, past and present, favorable and unfavorable” in reaching a clearance determination. Like other adjudicative criteria, some “Personal Conduct” issues can be mitigated by positive attributes considered under the “whole person concept.” When mitigating security issues under Guideline E (as well as other guidelines), an applicant should submit information that specifically addresses the applicable mitigating conditions. They should also submit information regarding other positive aspects of their life, such as major lifestyle changes, recognition for professional and academic achievement; participation in charitable, civic, and service organizations; and other constructive community and professional involvement.

By William H. Henderson

Copyright © 2010 Last Post Publishing. All rights reserved. (updated September 2019)