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Answers to your questions about suitability determinations 

On Behalf of | Mar 24, 2021 | Uncategorized |

As a member of the United States military, you know the importance of your security clearance and ranking. Maintaining these are critical to your career, your future and your reputation.

In a previous post, we discussed the potential for excessive debt to keep you from retaining security clearance. However, debt problems are only one of many possible causes to be denied or lose your security clearance. If you are undergoing a suitability action, you should have a basic understanding of the procedures and regulations involved.

Who can initiate a suitability action?

In general, the Code of Federal Regulations (5 CFR 731) outlines the rules and procedures for suitability investigations, determinations and actions.  According to this authority, the Office of Personnel Management (OPM) or the employing agency to which the OPM has delegated this authority can initiate these procedures.

Generally, these investigations take place when someone is being promoted to a position of higher trust and security clearance or if certain issues arise.

What are the issues for investigations?

The CFR lists numerous allegations that can trigger a suitability investigation, including:

  • Misconduct
  • Criminal conduct
  • Fraud or misrepresentation as part of an examination or appointment
  • Alcohol or drug abuse
  • Engaging in acts deliberately intended to overthrow the U.S. Government

This is not an exhaustive list, and the federal regulation also notes “additional considerations” that the OPM or agency needs to consider.

What are the possible consequences?

In a suitability action, you could face cancelation of eligibility, removal, cancelation of reinstatement eligibility and debarment.

How does the process work?

For a suitability action the procedure is roughly as follows:

  • Notice: The OPM or the delegated agency must notify you in writing of the proposed action, the charges against you and the availability for review of the documents used. The OPM or agency must deliver this notice at least 30 days before the proposed action is set to take place, and if the OPM is proceeding with the action, it can send copies of the notice to any employing agency.
  • Respondent’s answers: First, the respondent (the person who received the notice) may answer in writing which can include documents and affidavits. This answer must be submitted within 30 days of receiving notice.
  • Agency’s answer: If the OPM is running the suitability action, the agency can also submit an answer to the proposed action.
  • Decision: After the notice and answers are in, the OPM or agency will submit a decision in writing as to the action.
  • Appeal: For unfavorable decisions, you have the option to appeal. This appeal goes to the Merit Systems Protection Board. The board will investigate all the allegations against you. If any of the allegations are supported by a preponderance of the evidence, the board must affirm the OPM’s or the agency’s suitability determination.

This is a general overview of the procedures involved. Each of these steps involves nuances and complications.

What are my rights?

You always have the right to work with legal counsel to protect your interests. You have the right to fight back. Your career and your future may depend on it.