Listing the Initial Criminal Charge on Your SF86 is Important

Time and time again I run across background investigation applications where the applicant listed criminal charges that are contradicted by the FBI criminal history check or police report. This is a serious mistake! It seems, either consciously or unconsciously, applicants try to downplay the seriousness of the reason(s) for the arrest by listing only what the final outcome was in court. Adjudicators know more often than not prosecutors will downgrade charges in a plea deal to get it off the books. This is why the actual criminal conduct and not the final outcome is considered more important in whether or not to grant a clearance.

Take this recent Defense Office of Hearing and Appeals case for example: the applicant was issued a statement of reasons because he failed to disclose he had been arrested and charged with felony rape of a child. He requested to submit his appeal in person and convinced the judge that when he filled out the SF-86 he did not list the felony charge because he had misunderstood the question, and instead, listed what he pled guilty to in court, which was misdemeanor communication with a minor for immoral purposes. The judge gave him the benefit of the doubt, cited favorable character references and granted eligibility for a clearance.

However, DoD counsel was not good with this decision to grant the applicant a clearance and filed an appeal with DOHA, arguing that the applicant had not provided adequate information to mitigate his falsification on the form. Counsel noted that none of the character references indicated they knew anything about the criminal conduct or his life outside of work. Also argued was the fact that the applicant is college educated with an advanced degree and that the question (in BOLD face) on the form is quite clear. The facts of the criminal conduct that led to the charge were presented and when taken all together, there was enough doubt in the credibility of the applicant’s claims to misunderstanding the question for the DOHA judge to reverse the initial decision and deny the clearance.

Do you know what is ironic in this case? Had the applicant been honest and forthright about the initial charge that happened 12 years ago, there would have been no honesty issue and no reason to deny the clearance.