- SECURITY CLEARANCES & UNFAVORABLE ADMINISTRATIVE ACTIONS, AR 380-67 September 29 2014, 0 Comments
Unfavorable Administrative Actions
For purposes of this regulation, an unfavorable administrative action includes any adverse action which is taken as a result of a personnel security determination, as defined in the terms section, and any unfavorable personnel security determination, as defined in the terms section. This chapter is intended only to provide guidance for the internal operation of the DOD and is not intended to, does not, and may not be relied upon, to create or enlarge the jurisdiction or review authority of any court or administrative tribunal, including the Merit Systems Protection Board.
8–2. Referral for action
Whenever derogatory information relating to the criteria and policy set forth in paragraph 2–4 and appendix I of this regulation is developed or otherwise becomes available to any DOD element, it shall be referred by the most expeditious means to the commander or the security officer of the organization to which the individual is assigned for duty. The CDR or security officer of the organization to which the subject of the information is assigned shall review the information in terms of its security significance and completeness. If further information is needed to confirm or disprove the allegations, additional investigation should be requested. The commander of the duty organization shall ensure that the parent component of the individual concerned is informed promptly concerning (1) the derogatory information developed and (2) any actions taken or anticipated with respect thereto by forwarding DA Form 5248–R
(Report of Unfavorable Information for Security Determination) to the CDR, CCF (PCCF–M). However, referral of derogatory information to the commander or security officer shall in no way affect or limit the responsibility of the central adjudication facility to continue to process the individual for denial or revocation of clearance or access to classified information, in accordance with paragraph 8–6, below, if such action is warranted and supportable by the criteria and policy contained in paragraph 2–4 and appendix I. No unfavorable administrative action as defined in the terms section may be taken by the organization to which the individual is assigned for duty without affording the person the full range of protections contained in paragraph 8–6, below, or, in the case of SCI, Annex B, DCID 1/14.
- The Director, DIS, shall establish appropriate alternative means whereby information with potentially serious security significance can be reported other than through DOD command or industrial organization channels. Such access shall include utilization of the DOD Inspector General “hotline” to receive such reports for appropriate follow up by DIS. DOD components and industry will assist DIS in publicizing the availability of appropriate reporting channels.
Additionally, DOD components will augment the system when and where necessary. Heads of DOD components will be notified immediately to take action, if appropriate.
(1) When the commander learns of credible derogatory information on a member of their command that falls within the scope of paragraph 2–4, the commander will immediately forward DA Form 5248–R to the CDR, CCF.
(2) DA Form 5248–R will be submitted in a timely manner. At a minimum, initial reports will indicate the details of the credible derogatory information and actions being taken by the commander or appropriate authorities (for example, conducting an inquiry or investigation) to resolve the incident. Followup reports will be submitted at 90-day intervals if the commander has not taken final action or, for example, the subject is still
pending action by civil court. At the conclusion of the command action, a final report will be forwarded to CCF indicating the action taken by the commander. The final report must contain results of any local inquiry, investigation, or board action and recommendation of the command concerning restoration or revocation of the person’s security clearance, if appropriate.
(3) Commanders will not delay any contemplated personnel action while awaiting final action by CCF. The personnel action should proceed, with CCF being informed of the final action by submission of DA Form 5248–R through established channels.
(4) If the personnel file does not indicate the existence of a security clearance, commanders must still report information that falls within the scope of paragraph 2–4, since the person might later require a clearance. Only a final report is required on personnel who do not have a security clearance.
(5) The SSOs are charged with protecting SCI. If an SSO learns of any derogatory information falling within the scope of paragraph 2–4 concerning any person under the SSO’s security cognizance, the SSO will immediately inform the commander. The failure of a commander to forward a DA Form 5248–R to CCF, when derogatory information has been developed on SCI indoctrinated individuals, should be brought to the attention of the individual’s security manager and the senior intelligence officer.
The commander or head of the organization shall determine whether, on the basis of all the facts available upon receipt of the initial derogatory information, it is in the interests of national security to continue subject’s security status unchanged or to take interim action to suspend subject’s access to classified information or assignment to sensitive duties (or other duties requiring a trustworthiness determination), if information exists which raises serious questions as to the individual’s ability or intent to protect classified information, until a final determination is made by the appropriate authority designated in appendix F. Every effort shall be made to resolve a suspension action as expeditiously as possible.
1. When a commander learns of significant derogatory information falling within the scope of paragraph 2–4, in addition to the reporting requirements of 8–2a, above, the commander must decide whether or not to suspend the individual’s access to classified information. The commander may wish to suspend access on an “informal” basis while gathering information to determine whether or not formal suspension is warranted. After gathering the required data, the commander may decide to restore access. If the CDR does not suspend access, CCF will review all available information and, if warranted, advise the commander to suspend access.
2. If the commander decides on formal suspension of access, DA Form 873 will be removed from individual’s personnel file and attached to DA Form 5248–R reporting the suspension to CCF. Once this is done, the commander may not restore access until a final favorable determination by the CDR, CCF, unless ALL the following criteria are met. These following procedures apply to both collateral and SCI access:
(1) If the commander determines that the person has been cleared of all charges and that the alleged offense or disqualifying information has been disproved or found groundless, and the commander is completely convinced that no element of risk remains, the commander may restore interim access in the name of the CDR, CCF. The commander will notify CCF of this action. Access will not normally be restored in cases where factors such as dismissal of charges, acquittal because of legal technicalities, plea bargaining, or absence of a speedy
trial are involved. These factors cannot be construed as a clearing of all charges.
(2) When the commander is considering suspending or has suspended a person’s access because of a suspected or actual psychological problem, the commander may elect to retain the person in status or reinstate access if the following conditions are met:
(a) A current medical evaluation indicates the condition was a one-time occurrence.
(b) The condition has no lasting effects that would affect the person’s judgment.
(c) There is no requirement for further medical consultation relating to the condition.
(d) The examining physician recommends the person be returned to full duty status.
(e) The person exhibits no unacceptable behavior after the favorable medical evaluation.
(f) The commander firmly believes the person does not pose a risk to the security of classified information.
(3) If the commander has any doubts concerning the person’s current acceptability for access, even though
the above provisions have been met, the case will be referred to CCF. Only the CDR, CCF, may reinstate access
in cases where the person attempted suicide.
- The commander will ensure that the SSO is expeditiously notified of any information within the scope of paragraph 2–200 if the person is indoctrinated for SCI. This notification is especially critical if the commander suspends access.
- A commander who suspends access to classified information will ensure that the suspension is documented in the Field Determined Personnel Security Status data field of the Standard Installation/Division Personnel System personnel file.
8–4. Final unfavorable administrative actions
The authority to make personnel security determinations that will result in an unfavorable administrative action is limited to those authorities designated in appendix F, except that the authority to terminate the employment of a civilian employee of a military DOD Agency is vested solely in the head of the DOD component concerned and in such other statutory official as may be designated. Action to terminate civilian employees of the Office of the Secretary of Defense and DOD components, on the basis of criteria listed in paragraphs 2–4, a through f, shall be coordinated with the DUSD(P) prior to final action by the head of the DOD component. DOD civilian employees or members of the Armed Forces shall not be removed from employment or separated from the Service under provisions of this regulation if removal or separation can be effected under OPM regulations or administrative (nonsecurity) regulations of the military departments. However, actions contemplated in this regard shall in no way affect or limit the
responsibility of the central adjudication facility to continue to process the individual for denial or revocation of a security clearance, or access to classified information on or assignment to a sensitive position if warranted and supportable by the criteria and standards contained in this regulation.
No final personnel security determination shall be made on a member of the Armed Forces, an employee of the DOD, a consultant to the DOD, or any other person affiliated with the DOD without granting the individual concerned the procedural benefits set forth in 8–6, below, when such determination results in an unfavorable administrative action (see para 8–1). As an exception, Red Cross/united service organizations employees shall be afforded the procedures
prescribed by DODD 5210.25 (AR 380–49).
8–6. Unfavorable administrative action procedures
Except as provided for below, no unfavorable administrative action shall be taken under the authority of this regulation unless the person concerned has been given:
- A written statement of the reasons why the unfavorable administrative action is being taken. The statement shall be as comprehensive and detailed as the protection of sources afforded confidentiality under the provisions of the Privacy Act of 1974 (5 USC 552a) and national security permit. Prior to issuing a statement of reasons to a civilian employee for suspension or removal action, the issuing authority must comply with the provisions of Federal Personnel Manual, chapter 732, subchapter 1, paragraph 1–6b. The signature authority must be as provided for in paragraphs6–101b(1)(b) and 6–101b (2)(b).
(1) The CDR, CCF, is the DA authority for denial and/or revocation of security clearances and/or SCI access eligibility. The CDR, CCF, may delegate this authority to those individuals outlined in paragraph 6–2b.
(2) When CCF receives credible derogatory information and denial or revocation of a security clearance and/or SCI access eligibility is considered appropriate, CCF will forward a letter of intent through the command security manager to the individual. This LOI will outline the derogatory information and explain the proposed action. It will offer the person a chance to reply in writing with an explanation, rebuttal, or mitigation for the incidents.
(3) The LOI will direct suspension of access to classified information. If the LOI addresses SCI access only, access to collateral information may continue.
(4) If the person needs access to classified information in order to prepare a response to the LOI, CCF may authorize limited access for (cont.)