- December 3, 2015
- Posted by: William Henderson
- Category: Clearance Procedures
When the security clearance investigation of a contractor employee is completed by the Office of Personnel Management (OPM), the investigative file, which is called a Report For Adjudication (RFA), is sent to the Industry Division (Division A) of the DOD Consolidated Adjudications Facility (DOD CAF). If the RFA is for a Secret clearance and does not contain any potentially disqualifying information, the RFA can be favorably adjudicated by computer (eAdjudication) and the clearance can be granted without any further review. When the RFA for a Secret clearance contains potentially disqualifying information or when the RFA is for a Top Secret clearance, the case is assigned to a DOD CAF staff adjudicator.
Sometimes there is insufficient information in the RFA for the adjudicator to make a clearance decision. If this occurs, the adjudicator either returns the RFA to OPM for further investigation or sends a written “Interrogatory” requesting additional information directly from the applicant. When adjudicators have sufficient information to make a clearance decision, they can either grant the clearance or write a Statement of Reasons (SOR), explaining why granting a clearance is not “clearly consistent with the interests of national security.” The SOR must provide “as comprehensive and detailed a written explanation of the basis for that conclusion as the national security interest of the United States and other applicable law permit.” The SOR is a preliminary decision to deny or revoke a clearance. Once it’s completed, it’s sent to the Defense Office of Hearings and Appeals (DOHA) for review and approval, before it’s sent to the applicant.
If you receive an SOR, it will be sent to your Facility Security Officer (FSO) in a double envelope. The sealed inner envelope will be given to you unopened. The outer envelope will contain a letter that you must sign and date, acknowledging receipt of the inner envelope. You should ask for and keep a copy of the receipt. Your FSO will return the original receipt to DOD CAF. You are required to submit a written response to the SOR within 20 days of the date you sign for it. Failure to do so will result in your clearance being denied or revoked without further consideration. If you need extra time to write your SOR response or collect documents to support it, it’s usually possible to request and obtain a 20-day extension. Longer extensions require strong justification. The SOR cover letter will list a DOD CAF email address where you can send your request for an extension.
You can request a copy of your investigative file from OPM any time after the investigation is completed. If you anticipate receiving an SOR, it’s wise to request a copy of the investigative file as soon as possible, because it may take a month to get it. OPM has a form specifically for this purpose. If you request your file after you receive an SOR, in the text block at section 3 of the form you can ask that your request be expedited because of the limited time you have to respond to your SOR. Cite your ISCR Case number, which can be found in the upper right portion of the first page of your SOR. You can also ask that the file be sent to you via email.
The two-page cover letter included in the SOR packet provides basic information on how to answer the SOR. The packet also contains a one-page form that is intended to be used as the last page of your SOR response. On this form you can choose to request a hearing before a DOHA Administrative Judge (AJ) or to request that your case be decided by an AJ based solely on the written record. At the bottom of the form is a “jurat” where you will swear/affirm that your SOR response is true and correct and have your signature notarized. You should be aware that even if you don’t request a hearing, the DOHA attorney assigned to your case has the option of requesting a hearing.
The SOR will quote each applicable security concern as listed in the Adjudicative Guidelines. Below each concern will appear one or more subparagraphs with allegations of specific potentially disqualifying incidents or conditions drawn from your investigative file. The SOR cover letter instructs you to answer each subparagraph by stating, “I admit” or “I deny.” The instructions go on to say, “You also may provide additional information that explains, refutes, extenuates, or mitigates the [allegations].” In reality failure to provide “additional information” will eliminate any possibility of having your case favorably resolved at this stage.
The cover letter to the SOR lacks practical instructions on how to answer the SOR. For example, the instructions don’t specifically state that you can attach supporting documents to your SOR response—supporting documents are almost always critical to successfully refuting or mitigating allegations. The instructions say nothing about attaching letters of recommendation attesting to your judgment, reliability and trustworthiness from people who know you well. Nor do the instructions mention attaching other documents that show professional/academic achievements, constructive community involvement, honorable military service, etc. These are things that can favorably influence a “Whole-Person” assessment.
DOD 5200.2-R (Personnel Security Program) is being superseded by a newer regulation, but at Appendix 11 of the regulation, starting at page 168, there’s a sample SOR and practical, detailed instructions for responding to an SOR. The sample SOR and the instructions are for military and DOD civilian applicants. So, some of it (e.g. the format, the suspense dates and reporting channels) doesn’t apply to DOHA cases involving contractors, but much of the content is useful to anyone responding to an SOR.
If you have strong writing and analytical skills, you may still need to consider at least a brief consultation with a clearance attorney or personnel security consultant to help you prepare your SOR response. Even the most comprehensive written instructions cannot provide case-specific guidance. If you aren’t confident in your ability to successfully respond to the SOR, you will want to consider hiring a knowledgeable professional to help prepare your SOR response.
You will submit your SOR response to DOD CAF; however, your SOR response will be forwarded from DOD CAF directly to DOHA without being reviewed at DOD CAF. The DOHA Chief Department Counsel may approve the withdrawal of your SOR based solely on your written SOR response. If this occurs, your clearance will be granted or continued without further action. This can shave two to four months off your clearance process. Otherwise, your case will be assigned to a DOHA AJ for either a hearing or a decision based on the written record. Either way, you’ll have the opportunity to be represented by counsel, make a complete presentation, and develop a full factual record, as well as make arguments to be considered by an AJ, who is an independent decision-maker. In any event as soon as you’ve submitted your SOR response, it’s wise to begin gathering additional documents and preparing your case for presentation to an AJ.
By William H. Henderson
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