Legal Guide

DUI/DWI, Federal Employees, Contractors and the Military and Security Clearances

Citizens in these categories have unique concerns that many attorneys, while perhaps well intentioned, are unaware of or not prepared to address.

Recently while sitting in court awaiting my client’s case to be called for trial, I watched as an attorney representing a soldier from out of state plead him guilty to drunk driving. Perhaps expecting an easy disposition of a probation before judgment (PBJ) and a fine, he and his client were surprised when the judge gave him the option of a (short) period of incarceration or a lengthy time on supervised probation that would require him to return to Maryland at least monthly. The judge told him to speak to me about the problems created for his client. It became clear that the attorney had not considered any of the potential impacts on his client beyond “usual”. The judge then invited the attorney and I into her chambers and they listened as I outlined alternatives that would provide a second opportunity for his client. Judge agreed to my recommendations on his behalf.

A DUI/DWI charge can have a significant impact upon both military members and federal government and contract employees with a security clearance. Simple or generalized answers or guarantees are not possible, as every case is different. It is critical for the citizen accused to promptly consult competent counsel with experience in these matters because these cases must be handled especially carefully.

The various federal agencies and each branch of the armed forces deal with these issues differently. The military may take additional administrative and punitive actions beyond what happens in court with the state or federal charges.

For example, a condition of access to classified information imposes an affirmative duty upon the individual holding a security clearance to timely notify their security manager, Facility Security Officer (FSO) or Special Security Officer (SSO) upon arrest or being charged with not only a criminal charge, but also for a serious traffic charge. That is no doubt a difficult call to make, but it is critically important. Failure to so notify by itself provides the government a basis for suspending the security clearance, could result in revocation of access, and will, at a minimum, complicate matters later.

Likewise, outcomes that may appear acceptable can have a devastating effect not only upon the individual’s continued access to classified information, but also upon their availability for continued employment or deployment. Seemingly easy pleas and outcomes that may appear attractive on their face may be significantly hazardous. In Maryland for example, prosecutors often offer a first time offender a disposition called “probation before judgment” (PBJ) which under Maryland law is not considered a conviction. However, the federal government, military and security clearance authorities do not agree. That easy guilty plea can result in a long term adverse impact on continued employability in one’s profession.

Likewise, certain probation conditions that may appear benign can be devastating. Government employees and members of each branch of the armed forces are required to remain eligible for deployment away from their normal duty assignment. Even if the court permits leaving the state for employment purposes, the military and the various federal agencies may not, the outcome may restrict that deployment and thereby endanger continued employment. Indeed, the Adjudicative Guideline “J”, (criminal conduct), lists being “currently on parole or probation” as a condition that “could raise a security concern and maybe disqualifying”. The adjudicating authorities of the military services, Department of Defense (DOD), the intelligence community and other government agencies have interpreted being on probation as inconsistent as with eligibility for continued access to classified information.