- December 3, 2015
- Posted by: William Henderson
- Category: Clearance Procedures
Most defense contractor applicants for security clearance*, who receive a Statement of Reasons (SOR), have the choice of requesting a hearing before a Defense Office of Hearings and Appeals (DOHA) Administrative Judge (AJ) or requesting that an AJ make a decision based solely on the written record without a hearing. The applicant must submit a written response to the SOR in order to choose one of these options. Failure to respond to the SOR within the prescribed time results in automatic clearance denial or revocation and forecloses any right to an appeal.
If you receive an SOR and choose to have your case decided by an AJ without a hearing, your SOR response will still be reviewed by a DOHA attorney, known as a Department Counsel (DC). An SOR response that clearly refutes or mitigates all the security concerns could result in the SOR being withdrawn by DOHA. In this case your clearance would be granted or continued without any further action. If the DC decides that your SOR response did not refute or mitigate all the security concerns, you will be sent a document called a File Of Relevant Material (FORM) before your case is submitted to a DOHA AJ. You should receive the FORM about a month or two after you submit your SOR response.
Receiving and answering the FORM is essentially the same as the exchange of information that occurs between the applicant and the DC prior to a DOHA hearing. The FORM lists the documents the DC will provide to the AJ. A copy of each document is included with the FORM for your review. Typically the FORM will include the following:
- Electronic Questionnaires for Investigations Processing (e-QIP) version of the Questionnaire for National Security Positions (SF86).
- Statement of Reasons and Applicant’s answer to the Statement of Reasons with attachments.
- Report of Personal Subject Interview.
- Other documents relevant to the issues cited in the SOR (e.g. credit reports, bankruptcy records, psychological reports, criminal records, request for Administrative Notice of facts regarding a foreign country, written interrogatory and interrogatory response, etc.).
The FORM is accompanied by a cover letter that provides contact information for the DC assigned to your case. You will have 30 days to submit your objections to any of the documents listed in the FORM and to provide any additional information and documents you wish to be considered. Unlike the pre-hearing exchange of information between the DC and the applicant, the FORM will contain a brief statement of the relevant facts, including the allegations in the SOR and your response to the allegations. It will also contain the basic argument for why you should not be granted a security clearance.
You’re not required to submit a response to the FORM, and if you choose not to respond, the AJ will decide your case based solely on the FORM. In most cases your response to the FORM will be critical. You’re at this stage of adjudication because your SOR response failed to convince the Government that you should be granted a clearance. Like the DOHA hearing, the FORM response is your last chance to refute the allegations or explain why certain mitigating conditions apply to you. It’s also your last chance to present documents that support your assertions, as well as documents that support a favorable whole-person assessment.
The main difference between having a DOHA hearing and responding to a FORM is that the hearing allows oral testimony from you and your witnesses. At a hearing the DC and the AJ will question you and your witnesses, and sometimes these questions will surface additional extenuating or mitigating conditions. Your presence at a hearing also allows the AJ to make a personal assessment of your character and credibility. It’s possible to convey most of this same information in your written response to a FORM and by attaching written testimonial of others. The submission of other documents to support your assertions would be the same for either a hearing or a written response to a FORM.
About 30% of cases decided by DOHA AJs are based solely on the written record and only about 12% of those cases are favorably adjudicated. Of the cases that go to a DOHA hearing about 40% are favorably adjudicated. With these numbers it’s a wonder that everyone doesn’t request a hearing. But there’s probably more to it than just the numbers. It’s possible that applicants with the most serious issues are less motivated to request a hearing. It’s also possible that applicants, who request a decision without a hearing, are less likely to provide any additional information when given the opportunity.
You can obtain professional assistance to respond to your FORM, and the cost should be the same regardless of where you are located. Everything can be done via telephone consultations and exchange of emails. If you want professional representation at a hearing, it will cost more. At a minimum you will be charged four additional hours for the hearing, and there will be additional costs for non-local travel for you or your attorney/representative. Sometimes the non-local travel costs can be eliminated by using a video tele-conferencing facility. The amount of time it takes to prepare your written response to a FORM is pretty much the same as the amount of time it take to prepare your case for a hearing, except that additional time will be needed to prepare your witnesses.
Once you submit your response to the FORM, you should receive the DOHA AJ’s written decision in a month or two.
* This article applies to defense contractor employees whose collateral security clearances are processed by the Industry Division of the DOD Consolidated Adjudications Facility; it does not apply to contractor employees who are being considered for access to Sensitive Compartmented Information (SCI) and other Special Access Programs.
By William H. Henderson
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