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Legal Insider: Problems Concerning Security Clearance Upgrades

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

When an individual is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized more thoroughly. For instance, if an individual has been previously approved for a Secret level clearance and is then submitted for a Top Secret (TS) level clearance by his or her employer, the individual could be denied based on the same concerns that existed when he or she was approved for a Secret level clearance. This more often occurs when the individual holds a Top Secret clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”

Clearance Upgrade Issues

One common problem with security clearance upgrades is when an employer submits an individual’s information to a different security clearance agency or to the same agency for the purpose of upgrading an individual’s security clearance (e.g., from Secret to Top Secret). Sometimes the individual is made aware of the requested upgrade by the employer and sometimes he or she is not. An individual can be approved for a lower level security clearance, but he or she can be denied when submitting for a security clearance upgrade even if there are no new security concerns.

For example, suppose an individual is approved for a Top Secret security clearance by the Department of Defense, after mitigating some security concerns about past due debts or bad credit, but is then submitted for SCI access at an intelligence agency. The intelligence agency may consider those debts more serious than at the previous approval for Top Secret, and then deny the person SCI access approval based on the same financial issues that were first resolved favorably when the individual applied for his or her Top Secret clearance. This denial can potentially have significant consequences.

Result of Unfavorable Upgrade

The result of a clearance upgrade denial might be that the individual, at best, likely has to list the prior denial in future clearance applications, and at worst, could cause the individual to lose (or have to defend) his or her existing security clearance. Depending on the employer and federal agency, there are appeals processes to challenge the clearance upgrade denial, but it is something to seriously consider if there are security concerns in one’s background and a clearance upgrade is proposed.

Conclusion 

It is important to consider the impact of upgrading a security clearance or security access before applying when there are previous security concerns at issue. Individuals should consult with counsel if they have any security concerns at issue. If you need assistance with a security clearance matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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