If your work depends on military or civilian security clearance, criminal charges can put your livelihood at risk. Find out whether you can get security clearance with a criminal record, and what could happen to your clearance-level job after a conviction.
What is a Security Clearance?
Colorado has over 38,000 military personnel across its six military bases, including the Space Force/Space Command headquarters and NORTHCOM/NORAD. Many of the military personnel, defense contractors, and the civilians who work in those facilities need security clearance in order to obtain and maintain their employment. Security clearances are essentially licenses the federal government issues to allow individuals access to classified information. There are three levels of security clearance:
- Confidential
- Secret
- Top secret, including both Sensitive Compartmentalized Information (SCI)
They are issued to individuals based on their character, particularly their honesty, trustworthiness, and financial responsibility. In addition to military personnel, employees in the intelligence community, medicine, finance, education, federal law enforcement or telecommunications may also require security clearances to do their jobs.
The security clearance process can take months, or even more than a year to complete, and clearances must be renewed periodically, depending on the level of clearance. Servicemembers and civilian employees of the Department of Defense can also be subject to random and continuous investigations in between their security clearance renewals. Those who have them must be careful not to do anything to strain the government’s trust, or risk losing their clearance, and likely their job.
Can I Get Security Clearance with a Criminal Record?
In applying for security clearance you will be required to disclose every aspects of your criminal record on the “Questionnaire for National Security Positions” (Standard Form 86), including if you have:
- Ever been charged with a felony offense
- Ever been charged with a drug, alcohol, firearm or explosives offense
- Ever been charged with a domestic violence offense
- Been arrested in the past 7 years (10 years for Top Secret security clearance)
- Been subject to court martial or military disciplinary proceedings
- Are currently facing criminal charges
It is important to note that the duty to report triggers long before conviction, and depends on the original charges, rather than any later plea agreement that might reduce them. For example, you may be charged with a felony, but your criminal defense attorney might help you negotiate the charge down to a misdemeanor. Even though the misdemeanor you are convicted of may not require disclosure, the original felony charge will be enough to trigger the reporting requirement.
Disqualifications for Security Clearance
Just because you report a criminal charge or arrest doesn’t mean you can’t get security clearance with a criminal record. However, a criminal history will make examiners look more closely at your background and character. Automatic disqualification only applies to:
- An unlawful user or addicted to a controlled substance
- Deemed mentally incompetent by a doctor
- Dishonorably discharged from the armed services
If you do not fit into those categories, then examiners will look at both your criminal history and other factors to determine whether security clearance can be granted. Crimes related to dishonesty, substance abuse, or those that could make a person vulnerable to coercion are most difficult to overcome.
Mitigating Factors in Favor of Clearance
In awarding security clearance in spite of a criminal history, the examiners will consider other, positive factors that could mitigate or reduce the impact of your conviction such as whether:
- It was an isolated incident
- You were pressured into committing the crime
- It involved involuntary criminal conduct
- The charges were dismissed or you were acquitted
Rehabilitation After a Criminal Conviction
The evaluators will also look at what has happened in your life since your conviction to see if you have been successfully rehabilitated. This might include:
- The age of the conviction (without later arrest or incidents)
- Whether restitution was paid
- If you completed parole or probation without violations
- If you have completed any treatment programs
- Intervening job training
- Advanced degrees or further education
- Your employment record
- Positive community involvement
Protecting Your Security Clearance from Criminal Charges
If your livelihood depends on your security clearance, obviously the best course of action is to avoid criminal activity. However, should you be arrested, it is best to hire an attorney who understands the impact of the arrest, charges, and conviction on your ability to work. In some cases, there may be diversion programs to help you avoid a conviction. In others, legal defenses could help you get an acquittal that will help to mitigate the effects of the charge.
At Aviso Law, LLC, our criminal defense attorney Ryan Coward is a veteran himself. We know how to address state criminal and court-martial issues for servicemembers and civilians who depend on their security clearance to make their living. Not only can we provide representation in the criminal case, we can also represent clients in proceedings related to security clearances, to include responses to Statement of Reasons (SOR) and Administrative Security Clearance Hearings. We are here to serve you and will see you through the civilian criminal court process and the security clearance adjudication process. Contact us today to schedule a consultation.