12 FAM 230
Personnel Security
(CT:DS-428; 07-18-2024)
(Office of Origin: DS/SI/PSS)
12 FAM 231 GENERAL PROVISIONS
12 FAM 231.1 Definitions
(CT:DS-428; 07-18-2024)
The terms used herein are defined as follows:
(1) Adjudicative Guidelines — The Government-wide Adjudicative Guidelines for Determining Eligibility for Access to Classified Information issued pursuant to Executive Order 12968;
(2) Applicant — A person, including a person currently employed by the Department, who has received an authorized conditional offer of employment for a position that requires a security clearance determination or public trust certification;
(3) Employee — With the exception of the provisions located at 12 FAM 235, for purposes of 12 FAM 230, “employee” is given the meaning in E.O. 12968, as amended, and means a person:
(a) Who is employed by, detailed or assigned to the Department; an expert or consultant to the Department; a contractor, licensee, certificate holder, or grantee of the Department, including all subcontractors; a personal services contractor; or any other category of person who acts for or on behalf of the Department as determined by the Secretary; and
(b) Whose security clearance is held by, or would be held by, the Department.
(4) Investigative file – The investigative file refers to the employee’s or applicant’s “security file”. The term “investigative file” does not necessarily include other files or reports maintained by the Department, such as a report of a criminal, misconduct, or counter-intelligence investigation;
(5) Protected Disclosure – means:
(a) any lawful disclosure of information to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose) or a supervisor in the employee's direct chain of command, or a supervisor of the employing agency with responsibility for the subject matter of the disclosure, up to and including the head of the employing agency (or employee designated by the head of that agency for such purpose) that the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
(b) any lawful disclosure to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures of information that the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
(c) any lawful disclosure that complies with 5 U.S.C. 416, 50 U.S.C. 3517(d)(5), or 50 U.S.C. 3033(k)(5); or
(d) if the actions do not result in the unlawful disclosure of classified information, any lawful disclosure in conjunction with:
(i) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;
(ii) testimony for or otherwise lawfully assisting any individual in the exercise of any right referred to in clause (i); or
(iii) cooperation with or disclosing information to the Inspector General of an agency, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General.
(6) Public Trust position – See 12 FAM 091;
(7) Requestor - The Department security clearance and public trust certification process is initiated by authorized Human Resources Specialists, for direct-hire personnel, or the Industrial Security Division (DS/IS/IND) for contractor personnel. These HR specialists and DS/IS/IND personnel will be referred to throughout as the “requestor";
(8) Security Appeals Panel – A high level panel responsible for reviewing appeals from national security eligibility determinations consistent with Part 5 of E.O. 12968.
(9) Assignments Security Appeals Panel (A-SAP): A high level panel responsible for reviewing appeals regarding assignment reviews and assignment restrictions, consistent with the Department of State Authorization Act of 2023, Div. F, Section 6115, Pub. L. No. 118-31. See 12 FAM 263.3-4 for procedures for A-SAP review of Assignment Review decisions.
(10) Security clearance — A certification that a determination of eligibility for access to classified information has been made pursuant to E.O. 12968.
12 FAM 231.2 Authority
(CT:DS-199; 11-12-2013)
Relevant legal authorities include:
(1) Executive Order 10450 – Security Requirements for Government Employees;
(2) Executive Order 12829 – National Industrial Security Program;
(3) Executive Order 12968 – Access to Classified Information;
(4) Executive Order 13467 – Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information;
(5) Executive Order 13526 – Classified National Security Information;
(6) Adjudicative Guidelines for Determining Eligibility for Access to Classified Information issued pursuant to E.O. 12968;
(7) Homeland Security Presidential Directive (HSPD-12) “Policy for a Common Identification Standard for Federal Employees and Contractors”;
(8) Office of Management and Budget (OMB) Memo on Reciprocity, December 12, 2005;
(9) 5 CFR 731 – OPM part 731, Suitability;
(10) 5 U.S.C. 7532, Suspension and Removal;
(11) 18 U.S.C. 1001 – False Statements;
(12) Intelligence Community Directive Number 704 (ICD-704) - Personnel Security Standards and Procedures Governing Eligibility for Access To Sensitive Compartmented Information and other Controlled Access Program Information;
(13) Presidential Policy Directive/PPD-19, “Protecting Whistleblowers with Access to Classified Information”; and
(14) Inspector General Act of 1978 (5 U.S.C. App.).
12 FAM 231.3 Policy
(CT:DS-199; 11-12-2013)
a. The purpose of these regulations is to implement E.O. 12968 and other relevant laws and sources of authority. These regulations must be read consistently with such authorities.
b. The national interest requires that certain information be maintained in confidence through a system of classification to protect our citizens, our democratic institutions, and our participation within the community of nations. The unauthorized disclosure of information classified in the national interest can cause irreparable damage to the national security interests of the United States and loss of human life.
c. Security policies designed to protect classified information must ensure consistent, cost effective, and efficient protection of our Nation's classified information, while providing fair and equitable treatment to those U.S. citizens upon whom we rely to guard our national security.
d. To protect the security of classified information, the prudent management of risk is essential. In all cases, any doubt as to whether access to classified information is clearly consistent with the national security interests of the United States will be resolved in favor of the national security.
e. It is prohibited to take any action affecting an employee’s eligibility for access to classified information as reprisal for a protected disclosure.
12 FAM 232 INVESTIGATIONS
12 FAM 232.1 Security Clearance Investigations
(CT:DS-405; 06-16-2023)
a. Initial Background Investigations:
(1) Every applicant for appointment in the Department to a critical-sensitive position, as defined in 3 FAM 2220, requiring a Top Secret security clearance must undergo a single-scope background investigation (SSBI) except to the extent authorized by the Office of Personnel Management or other law or regulation; and
(2) A Secret or Confidential clearance may be granted for intermittent, temporary or seasonal employees, or for contractors, experts or consultants, or other persons not actually employed by the Department but defined as “employees” for purposes of E.O. 12968. In such case, the individual must undergo at least national, local agency, and credit checks.
b. Periodic investigations The Bureau of Diplomatic Security (DS) will periodically conduct an investigation to update every employee’s security clearance, at intervals prescribed by applicable U.S. Government standards, currently every five years.
c. Special investigations When circumstances arise that in DS’s view may affect security clearance eligibility, DS will conduct an appropriate investigation. An investigation conducted by DS, the OIG, or other entity for other reasons may also provide the basis for a review of whether an individual is eligible for continued access to classified information.
d. Medical issues All medical issues that may bear on determinations of security clearance eligibility should be referred to the Bureau of Medical Services (MED) for evaluation, medical inquiry, and recommendation pursuant to the criteria of E.O. 10450, E.O. 12968, and ICD 704.
e. Responsibility for investigations The Office of Personnel Security and Suitability (DS/SI/PSS) is responsible for the oversight and conduct of investigations to determine an individual’s eligibility for a security clearance pursuant to E.O. 12968 and the Adjudicative Guidelines. DS conducts such investigations prior to the initial granting of a security clearance, to periodically update a security clearance, or as required by changed circumstances or information. Upon conclusion of an investigation, DS/SI/PSS may:
(1) Request or conduct further investigation, if such is required to make a determination of security clearance eligibility;
(2) Make appropriate referrals to MED, the GTM/ER, the Department of Justice, the inspector general or any other appropriate bureau, office or agency;
(3) Issue an affirmative security clearance determination, recommend denial or revocation/reduction of clearance eligibility (see 12 FAM 234 and 235), or recommend suspension from employment under 5 U.S.C. 7532, if indicated;
(4) Take appropriate administrative actions for Department employees as prescribed in 12 FAM 235, if deemed necessary or advisable; or
(5) Take any other action that may be appropriate.
12 FAM 232.2 Investigations for Public Trust Positions
(CT:DS-141; 10-28-2008)
a. Public trust positions do not require or provide a security clearance. However, individuals applying for or encumbering public trust positions are subject to background investigations, periodic updates, special investigations, and other actions as provided in 12 FAM 232.1.
b. Every applicant for appointment to a position in the Department designated as a high-risk public trust position must undergo an initial single-scope background investigation (SSBI), except to the extent authorized by the Office of Personnel Management or other law or regulation. DS will also conduct a periodic update investigation as required for the periodic reinvestigation of occupants of critical-sensitive positions.
c. Every applicant for appointment to a position in the Department designated as a low risk or moderate risk public trust position must undergo national, local agency, and credit checks. DS will also conduct a periodic update investigation as required for the periodic reinvestigation of occupants of noncritical-sensitive positions.
d. Irrespective of official position designation, all non-resident aliens employed by the National Foreign Affairs Training Center must undergo initial SSBIs, to establish a valid basis for security evaluation and thereafter as required for the periodic reinvestigation of occupants of critical-sensitive positions.
12 FAM 232.3 Matters Bearing on Employment Suitability
(CT:DS-333; 06-24-2020)
a. When DS becomes aware of circumstances in relation to an applicant that bear on employment suitability, the matter will be referred to the Chairperson of the Personnel Review Panel (PRP) for a suitability determination prior to proceeding with consideration of whether to grant a security clearance as provided in 3 FAM 2150:
(1) If the PRP arrives at a favorable employment suitability determination, they will refer the matter back to DS for a final security clearance or public trust certification determination; and
(2) A PRP determination that an applicant is not suitable for employment with the Department will cause the cancellation of any further security investigation or evaluation.
b. When DS becomes aware of circumstances in relation to an individual already employed by the Department that bear on suitability, DS will consult with GTM, as appropriate, regarding the best way to proceed.
c. When DS becomes aware of circumstances that bear on suitability for contract performance relating to a contractor applicant for a Department-issued clearance or public trust certification, the matter will be referred to the chair of the Contractor Review Panel (CRP) for a suitability determination:
(1) Should the CRP find the applicant unsuitable, DS/SI/IND will notify the contracting officer’s representative (COR), who will notify the contracting firm that the applicant must be removed from contract performance; and
(2) If the CRP finds the applicant suitable, DS/SI/PSS will proceed with the security clearance or public trust certification.
d. When DS becomes aware of circumstances relating to a contractor employee that bear on suitability for continued contract performance, DS will initiate a re-evaluation of its security determination based on the developed information and/or coordinate with the appropriate COR regarding the best way to proceed.
12 FAM 233 NATIONAL SECURITY ELIGIBILITY: ELIGIBILITY FOR ACCESS TO CLASSIFIED INFORMATION OR ELIGIBILITY TO HOLD A SENSITIVE POSITION
12 FAM 233.1 Standards for Eligibility
(CT:DS-298; 07-27-2018)
a. National Security Eligibility (eligibility for initial or continued access to classified information or initial or continued eligibility to hold a sensitive position) is predicated upon the individual meeting the personnel security standards set forth in E.O. 12968 and the National Security Adjudicative Guidelines. No employee shall be deemed eligible for access to classified information or eligible to hold a sensitive position merely by reason of Federal service or contracting, licensee, certificate holder, or grantee status, or as a matter of right or privilege, or as a result of any particular title, rank, position or affiliation.
b. National security eligibility shall be granted only to applicants or employees who are U.S. citizens for whom an appropriate investigation has been completed and whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion and sound judgment; as well as freedom from conflicting allegiances and potential for coercion; and willingness and ability to abide by regulations governing the use, handling and protection of classified information. In determining national security eligibility, DS will examine a period of a person’s life to make a determination.
c. A determination of national security eligibility is a discretionary security decision based on judgments by appropriately trained adjudicative personnel. An individual shall be determined eligible only where facts and circumstances indicate access is clearly consistent with the national security interests of the United States, and any doubt shall be resolved in favor of the national security.
d. The Department does not discriminate on race, color, religion, sex, national origin, disability, or age in determining national security eligibility.
e. In determining national security eligibility, the Department may investigate and consider any matter that relates to the determination of whether access to classified information is clearly consistent with the national security interests of the United States.
f. No negative inference concerning national security eligibility may be raised solely on the basis of the sexual orientation of the employee.
g. No negative inference concerning national security eligibility may be raised solely on the basis of mental health counseling. Such counseling may be a positive factor in determining national security eligibility. However, behavior that suggests a mental health condition may be considered where it directly relates to the security concerns under the National Security Adjudicative Guidelines.
12 FAM 233.2 National Security Adjudicative Guidelines
(CT:DS-298; 07-27-2018)
a. DS determines national security eligibility in accordance with the National Security Adjudicative Guidelines in Security Executive Agency Directive 4, which are summarized below.
b. The adjudicative process is an examination of a sufficient period and a careful weighing of a number of variables of an individual's life to make an affirmative determination that the individual is an acceptable security risk. This is known as the whole-person concept. All available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a national security eligibility determination.
c. Each case must be judged on its own merits and the final determination remains the responsibility of the authorized adjudicative agency. Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.
d. The ultimate determination of whether the granting or continuing of national security eligibility is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person.
· Guideline A: Allegiance to the United States
· Guideline B: Foreign Influence
· Guideline C: Foreign Preference
· Guideline D: Sexual Behavior
· Guideline E: Personal Conduct
· Guideline F: Financial Considerations
· Guideline G: Alcohol Consumption
· Guideline H: Drug Involvement and Substance Misuse
· Guideline I: Psychological Conditions
· Guideline J: Criminal Conduct
· Guideline K: Handling of Protected Information
· Guideline L: Outside Activities
· Guideline M: Use of Information Technology
e. In evaluating the relevance of an individual's conduct, the adjudicator should consider the following factors:
(1) Nature, extent, and seriousness of the conduct;
(2) Circumstances surrounding the conduct, to include knowledgeable participation;
(3) Frequency and recentness of the conduct;
(4) Individual's age and maturity at the time of the conduct;
(5) Extent to which participation is voluntary;
(6) Presence or absence of rehabilitation and other permanent behavioral changes;
(7) Motivation for the conduct;
(8) Potential for pressure, coercion, exploitation, or duress; and
(9) Likelihood of continuation or recurrence.
f. Although adverse information concerning a single criterion may not be sufficient for an unfavorable eligibility determination, the individual may be found ineligible if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility or unstable behavior. However, a single criterion may be sufficient to make an unfavorable eligibility determination even in the absence of a recent occurrence or a recurring pattern. Notwithstanding the whole-person concept, pursuit of further investigation may be terminated by an appropriate adjudicative agency in the face of reliable, significant, disqualifying, adverse information.
g. When information of security concern becomes known about an individual who is currently eligible for access to classified information or eligible to hold a sensitive position, the adjudicator will also consider whether the individual:
(1) Voluntarily reported the information;
(2) Was truthful and complete in responding to questions;
(3) Sought assistance and followed professional guidance, where appropriate;
(4) Resolved or appears likely to favorably resolve the security concern;
(5) Has demonstrated positive changes in behavior; and
(6) Should have his or her national security eligibility suspended pending final adjudication of the information.
h. If after evaluating information of security concern, the adjudicator decides the information is serious enough to warrant a recommendation of denial or revocation of the national security eligibility, but the specific risk to national security can be managed with appropriate mitigation measures, an adjudicator may recommend approval to grant initial or continued eligibility for access to classified information or to hold a sensitive position with an exception as defined in SEAD 4 Appendix C (see 12 FAM Exhibit 230 below).
i. If after evaluating information of security concern, the adjudicator decides that the information is not serious enough to warrant a recommendation of denial or revocation of the national security eligibility, an adjudicator may recommend approval with a warning that future incidents of a similar nature or other incidents of adjudicative concern may result in revocation of national security eligibility.
j. The adjudicative process is predicated upon individuals providing relevant information pertaining to their background and character for use in investigating and adjudicating their national security eligibility. Any incident of intentional material falsification or purposeful non-cooperation with security processing is of significant concern. Such conduct raises questions about an individual's judgment, reliability, and trustworthiness and may be predictive of their willingness or ability to protect the national security.
12 FAM 233.3 Granting National Security Eligibility
(CT:DS-298; 07-27-2018)
When DS determines that granting an individual national security eligibility is appropriate, the Office of Personnel Security and Suitability (DS/SI/PSS) will promptly notify the requestor via e-mail. The requestor must notify the applicant, or in the case of a contractor, the Industrial Security Division (DS/IS/IND) must notify the Contracting Officer’s Representative. A copy will be placed in the applicant’s security file as proof of notification.
12 FAM 233.4 Suspension of Security Clearance
(CT:DS-428; 07-18-2024)
a. When derogatory information is received regarding an employee with access to classified information, the DS/SI Senior Coordinator will determine whether, considering all facts available upon receipt of the initial information, it is in the interests of the national security to suspend the employee’s access to classified information on an interim basis. A suspension is an independent administrative procedure that does not represent a final determination and does not trigger the procedures outlined in 12 FAM 234.
b. Suspension of a security clearance may be appropriate in, but may not be limited to, the following situations:
(1) Additional time is needed to resolve adverse information that may require additional investigation or for the individual to complete certain requirements to maintain the individual’s security clearance;
(2) Preparations are being made to revoke an individual’s existing access to classified information and access is suspended while the review of the determination to revoke takes place;
(3) The individual is pending removal or separation from employment under 5 U.S.C. 7532; or
(4) The individual has failed to submit required security forms or releases in a timely manner.
c. In all cases where access is suspended, the individual must be notified, in writing, that his/her security clearance has been suspended. Upon notification, the individual must turn in his/her Department-issued credentials that provide logical or physical access to classified systems or designated classified spaces/facilities and any and all Special Issuance Agency-issued passport(s) to the Office of Personnel Security and Suitability (DS/SI/PSS). DS must in turn notify the appropriate human resource personnel or the Industrial Security Division (DS/IS/IND), Defensive Equipment and Armored Vehicle Division (DS/PSP/DEAV), and regional security officer/post security officer, as appropriate, of the suspension. The executive office within the individual’s employing bureau is responsible for collecting any and all classified devices issued to the employee.
d. Personnel whose security clearances have been suspended may not be placed on temporary duty (TDY) status. Exceptions to this policy may be considered on a case-by-case basis by the DS/SI Senior Coordinator, but are unlikely to be granted, barring exceptional circumstances. An exception request, outlining a justification, must be submitted in writing from the individual’s bureau executive director to DS/SI.
e. Suspension of a security clearance is an interim measure, and is not a substitute for the revocation procedures described in 12 FAM 234.
f. The length of the suspension process can vary according to the nature and complexity of the case. If, for example the suspension of a clearance is based on preliminary facts from a DS criminal investigation, Federal Bureau of Investigation (FBI) counterintelligence or other law enforcement investigation, or an Inspector General investigation, in many cases, those matters must be resolved and prosecutorial decisions rendered before the Department can use the information for administrative action. Often, relevant evidence and witnesses are located abroad, which can also add time to the investigative process. Recognizing these constraints, DS will work to resolve suspension cases as quickly as possible.
g. Where deemed appropriate, the DS/SI Senior Coordinator may reinstate a suspended clearance subject to conditions, which may include limitations of TDY or regular assignment, or with a warning that future incidents of a similar character may result in revocation of a security clearance.
12 FAM 233.5 Assignment Restrictions
(CT:DS-428; 07-18-2024)
a. Assignment restrictions are conditions placed on a security clearance. They are used to mitigate foreign influence and/or foreign preference security concerns – corresponding to two of the National Security Adjudicative Guidelines – that would otherwise be partially but not completely mitigated, so that the Department may issue a security clearance. They also prevent potential targeting and harassment by foreign intelligence services in the restricted country. As of March 22, 2023, DS/SI/PSS has ended placing any new assignment restriction as a condition on a security clearance.
b. If DS/SI/PSS previously identified a security concern that could have been disqualifying, i.e., one that could have been used to reach an unfavorable determination on an applicant’s or employee’s eligibility for access to classified information, and the security concern could have been lessened by restricting the individual’s assignment, the DS/SI/PSS Office Director may have placed an assignment restriction on the individual’s security clearance.
c. Assignment restrictions may have been determined when the initial security clearance determination was made, during a previous periodic reinvestigation, or when an employee’s personal situation changed (e.g., marriage, cohabitation; see 12 FAM 270). An individual with an assignment restriction may be restricted from permanent assignment to a particular country or countries, or in some cases, an office and/or program where that country or countries are the primary focus. Desk positions may present vulnerabilities for targeting when there is frequent official contact with foreign individuals. Individuals with an assignment restriction to a country may not serve temporary duty (TDY) in that country for more than a total of 60 days during any 365-day period.
d. Notification: Employees with an assignment restriction have been notified in writing by DS/SI/PSS of the assignment restriction. For employees with an assignment restriction who are applying to a new position as an internal applicant, DS/SI/PSS will notify the office requesting the security clearance of the assignment restriction.
e. The employee with an assignment restriction is ultimately responsible for ensuring compliance with the assignment restriction, and that the employee is not assigned to or performs work in a country, office, or program to which the employee has an assignment restriction.
f. Review and Appeal: Employees with an assignment restriction may avail themselves of the review procedures in 12 FAM 233.5(h). DS/SI/PSS shall provide a status update for any Department employee who has been the subject of a pending assignment restriction review for more than 30 days.
g. As a routine practice, assignment restrictions will be reviewed by DS/SI/PSS each time an employee submits the Standard Form 86 (SF86), Questionnaire for National Security, typically every five years. DS/SI/PSS may remove or continue the restriction at that time.
h. If an employee has material information (e.g., divorce from or death of a foreign contact, divestment of foreign financial interest) that would affect the continued need for an assignment restriction, the employee may submit that information to DS/SI/PSS (via email at DSDirectorPSS@state.gov) and request reconsideration. The DS/SI Senior Coordinator will review the information and determine whether to remove or sustain the assignment restriction.
i. If, following a review under subparagraph (h) of this section, the DS/SI Senior Coordinator sustains the assignment restriction, the employee may request a review of that decision by the Principal Deputy Assistant Secretary for Diplomatic Security (DS PDAS). The DS PDAS will endeavor to render a decision to sustain or remove the assignment restriction within 30 days of receipt of the individual’s request for review. If the DS PDAS sustains the assignment restriction, the individual may appeal to the Assignments Security Appeals Panel (A-SAP).
k. All questions about assignment restrictions may be directed to DS/SI/PSS at DSDirectorPSS@state.gov.
12 FAM 234 DENIAL OR REVOCATION OF SECURITY CLEARANCE and REVIEW OF ASSIGNMENT RESTRICTIONS
12 FAM 234.1 DS Decision and Review
(CT:DS-428; 07-18-2024)
a. Notice of intent to deny. When the DS/SI Senior Coordinator concludes that the issuance of a security clearance may not be clearly consistent with the national security interests of the United States, DS/SI/PSS informs the applicant that DS/SI is likely to deny the security clearance. DS/SI/PSS will provide the applicant with a statement citing the security concerns and provide the applicant with an opportunity to withdraw or continue with the security clearance processing. If the applicant withdraws, the security clearance process will terminate. If the applicant fails to respond within 10 business days, the security clearance process will terminate.
b. Denial of a security clearance. If the applicant chooses to continue with the security clearance processing after being so advised, and if the DS/SI Senior Coordinator concludes that the issuance of a security clearance is not clearly consistent with the national security interests of the United States, DS/SI will deny the individual’s security clearance.
c. Revocation of a security clearance. If the DS/SI Senior Coordinator concludes that retention of a security clearance is not clearly consistent with the national security interests of the United States, DS/SI will revoke the individual’s security clearance.
d. Notification, Request of Documents, and Representation. DS/SI/PSS will notify the applicant or employee in writing, of the DS/SI Senior Coordinator’s decision to deny or revoke that individual’s security clearance, or to sustain an assignment restriction pursuant to 12 FAM 233.5(h). The notification will provide as comprehensive and detailed a written explanation of the basis for the decision as the national security interests of the United States and other applicable law permit. An individual whose security clearance is denied or revoked, or whose assignment restriction was sustained, is instructed to acknowledge receipt of the DS/SI/PSS notification within 10 business days by returning a written memorandum, which will be provided by DS/SI/PSS with the notification letter. If the individual wishes to request any documents, records, and/or reports upon which the denial or revocation or assignment restriction decision was based, and/or the individual’s entire investigative file, the individual must do so with the acknowledgement of receipt. The individual must also advise whether the individual would like to request a review of the decision and/or whether the individual intends to submit a written reply to the decision. Consistent with E.O. 12968, as amended, the DS/SI/PSS notification letter will advise the individual of the right to:
(1) Be represented by counsel or other representative at the individual’s own expense;
(2) Request, in writing and within 10 business days of receipt of the letter, any documents, records, and reports upon which the denial or revocation of eligibility or assignment restriction sustainment is based, to the extent that the documents would be provided if requested under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C. 552a). If so requested, DS/SI/PSS will endeavor to provide the documents within 30 days;
(3) Request, in writing and within 10 business days of receipt of the DS/SI/PSS letter, the individual’s entire investigative file, to the extent permitted by national security and other applicable law. If so requested, DS will provide the file to the individual promptly and prior to the time set for the individual’s written reply;
(4) Submit within 30 days of receipt of the notification, or if the investigative file or any other documents, records, and/or reports are requested, within 30 days of receipt of the investigative file and/or such documents, a written reply to, and request for review of, the decision to deny or revoke the individual’s eligibility for access to classified information or to sustain the assignment restriction. If timely requested and deemed appropriate, DS/SI/PSS may grant an extension of time to submit the written reply and request for review; and
(5) Be provided written notice of and reasons for the results of the review, the identity of the deciding authority, and written notice of the right to appeal. For more information about appeals procedure, see 12 FAM 234.3.
e. Presidential Policy Directive 19. If the employee covered by Presidential Policy Directive 19 believes an action affecting the covered employee’s security clearance was taken as reprisal for a protected disclosure, the employee’s written reply must include, with as much specificity as possible, information about the protected disclosure and the conduct constituting the alleged reprisal, in addition to any other arguments supporting the individual’s request for review. Within five days of submitting a written reply to DS/SI/PSS asserting a reprisal, the individual must, as part of the individual’s request for review, provide a separate written request for review of the alleged reprisal to the Office of Inspector General (OIG). This request must contain, with as much specificity as possible, information about the protected disclosure and the conduct constituting the alleged reprisal.
f. Representatives. If the applicant or employee is represented by counsel or other representative, the representative does not have a right to have access to or to review any material. However, to the extent authorized by the individual and the Department, the representative may review material that the individual has access to pursuant to 12 FAM 234.1 if the representative is properly cleared.
g. Classified information. In appropriate cases and where consistent with national security, DS may, but is not required to, permit the individual and/or the counsel or other representative to have access to classified information upon which a denial or revocation of eligibility is based.
h. Limitations. Other than as provided in subsections 12 FAM 234.1, neither Executive Order 12968, as amended, nor these procedures authorizes the individual to request information or other forms of “discovery”.
i. Suspension from employment. The Department may determine that immediate suspension without pay from employment under 5 U.S.C. 7532 is deemed advisable.
j. Review of denial or revocation. When review is requested by an applicant or employee pursuant to subsection 12 FAM 234.1 or 12 FAM 233.5, the Principal Deputy Assistant Secretary (PDAS) for Diplomatic Security will review the DS/SI Senior Coordinator’s decision and the individual's reply, if any. DS will provide the individual with written notice of and reasons for the results of the review and, where appropriate, of the right to appeal as provided in 12 FAM 234.3.
k. Temporary duty. Employees whose security clearance have been revoked may not be placed on TDY status.
12 FAM 234.2 Inspector General Review of Alleged Reprisal
(CT:DS-428; 07-18-2024)
When the employee covered by Presidential Policy Directive 19 makes a reprisal allegation as referenced in 12 FAM 234.1(e), the Inspector General (IG), or the IG’s designee, will conduct an independent review to determine whether an action affecting the employee’s eligibility for access to classified information was taken in violation of PPD-19. IG review under this subsection will occur simultaneous to, but independent of, the review by the DS PDAS referenced in 12 FAM 234.1(j). Upon conclusion of its review, the IG will provide a written determination and any recommendations to the Under Secretary for Management. The Under Secretary for Management will transmit the IG materials to the Security Appeals Panel, if one is convened in the matter, and to other Department officials as appropriate.
12 FAM 234.3 Appeals Procedure
(CT:DS-428; 07-18-2024)
a. Appeal of DS Review Decision. If the applicant or employee wishes to appeal the decision of the DS PDAS to sustain a security clearance denial, revocation, or assignment restriction, the individual must submit to DS/SI/PSS an appeal within 30 days of notice of the right to appeal. Such notice shall specify whether the individual wishes to make a personal appearance before the Security Appeals Panel (SAP) or the Assignments Security Appeals Panel (A-SAP), as appropriate. After receipt of the request for appeal, DS/SI/PSS will transmit the appeal and other relevant material to the SAP or A-SAP, which will endeavor to schedule a meeting to hear the appeal promptly.
b. Security Appeals Panel (SAP). The SAP for sustained security clearance denial or revocation cases will be comprised of three voting members – the Under Secretary for Management (M) (who will serve as the chair), the Bureau of Global Talent Management (GTM) Principal Deputy Assistant Secretary (PDAS), and the PDAS for the Bureau of Intelligence and Research (INR). M as chair may designate an alternate member at the PDAS level when necessary for timely management of the requested appeal. A representative from the Office of the Legal Adviser (L/M) and a representative from DS/SI will serve as non-voting advisors to the SAP. The DS/SI representative and any accompanying counsel (L/M/DS) will not be present during the SAP’s deliberations.
c. Assignments Security Appeals Panel (A-SAP). The A-SAP for the assignment restrictions process is comprised of five voting members: M (who serves as chair), the PDAS for the Bureau of Global Talent Management (GTM), the PDAS for the Bureau of Intelligence and Research (INR), the Director of the Office of Civil Rights (S/OCR), and the PDAS from the geographic bureau applicable to the assignment restriction. A representative from the Office of the Legal Adviser (L/M) and a representative from DS/SI will serve as non-voting advisors to the A-SAP. The DS/SI representative and any accompanying counsel (L/M/DS) will not be present during the A-SAP’s deliberations.
d. Administrative Support. Upon receipt of the appeal from DS/SI/PSS, the Under Secretary for Management will schedule and notify the SAP/A-SAP members of the date on which the SAP/A-SAP will begin deliberations of the individual’s appeal and the time for a personal appearance, if requested. In coordination with the Under Secretary for Management’s staff, DS/SI/PSS will ensure that the individual and/or the individual’s representative, the panel members, and the representative of the Office of the Legal Adviser (L/M) are notified of the date. DS/SI/PSS will also promptly provide the individual with the materials provided to the panel to the extent the documents would be provided if requested under the Freedom of Information Act or the Privacy Act, as applicable. The representative of the Office of the Legal Adviser (L/M) will advise the individual of relevant procedures and of the panel’s final decision in the case, which will be issued by the SAP/A-SAP chair.
e. Written Arguments and Exhibits. No later than two weeks prior to the personal appearance, the individual may submit to DS/SI/PSS any additional written arguments and any relevant documents, materials, and information the individual wants the panel to consider. The SAP/A-SAP will be the sole arbiter of relevance.
f. Personal Appearance. The individual will have an opportunity to appear before the SAP/A-SAP in person, or virtually, if requested, although the individual’s optional appearance is at the individual’s discretion. The personal appearance will not be adversarial in nature. The individual may not produce or request witnesses at this appearance; any witness statements that the individual wishes to introduce must be submitted in writing and no later than two weeks before the scheduled appearance, as provided in subparagraph e above. The individual has no right to compel such witness statements.
g. Deliberation. The SAP/A-SAP may request additional information from the individual or from the Department prior to rendering its decision.
h. Decision of the Appeals Panel. The SAP may decide to sustain the denial or revocation, or grant or reinstate the security clearance, and, to the extent authorized by law, take such other steps as it deems appropriate. The A-SAP may decide to remove, sustain, or modify an assignment restriction. The SAP/A-SAP will carefully consider the IG’s determination and recommendations, if any, before reaching its decision. In reaching its decision, the SAP/A-SAP will determine whether the granting or reinstating of the individual’s security clearance or the sustaining or removing of an assignment restriction is clearly consistent with the national security interests of the United States. Any doubt shall be resolved in favor of national security. The SAP’s/A-SAP’s decision shall be the final decision of the Department.
i. All appeals will be resolved as soon as feasible, considering the complexities of the case under consideration. In assignment restriction appeals, the A-SAP shall convene within 120 days of an appeal being requested in writing by the employee.
j. Appeal of Alleged Reprisal to the Inspector General External Review Panel. An employee covered by Presidential Policy Directive 19 who makes a reprisal allegation pursuant to 12 FAM 234.1(e), and whose security clearance is not reinstated after exhausting the Department review process, may request review of the alleged reprisal by the External Review Panel (ERP) established pursuant to PPD-19. External review is conducted at the sole discretion of the Inspector General of the Intelligence Community. If the ERP finds that the Department took action affecting the individual’s eligibility for access to classified information as reprisal for a protected disclosure in violation of PPD-19, the ERP may recommend to the Under Secretary for Management that the Department take corrective action to return the individual, as nearly as practicable and reasonable, to the position such individual would have held had the reprisal not occurred. The Under Secretary will forward the ERP’s recommendation to the SAP or A-SAP, as appropriate, which will carefully consider the recommendations and reach a decision in the matter. The appeals panel will notify the Secretary of State of the corrective actions ordered, if any, in response to the recommendations. Within 90 days of receiving the ERP’s recommendations, the Department will inform the ERP and the Director of National Intelligence of any corrective actions taken in response to the recommendations.
k. Nothing in these provisions shall be deemed to limit or affect the responsibility and authority of the Secretary pursuant to any law or other Executive order to deny or terminate access to classified information in the interests of national security, where the Secretary determines that the procedures herein cannot be invoked in a manner that is consistent with national security. This determination shall be conclusive. Nothing in these provisions shall be deemed to limit or affect the responsibility and authority of the Secretary to make determinations of suitability for employment.
12 FAM 235 SUSPENSION FROM EMPLOYMENT UNDER 5 U.S.C. 7532
12 FAM 235.1 Authority and Applicability
(CT:DS-141; 10-28-2008)
a. The Act of August 26, 1950 (64 Stat. 476), codified at 5 U.S.C. 7532, confers upon the Secretary of State the authority, in the Secretary’s absolute discretion, to suspend without pay any civilian officer or employee of the Department (including the Foreign Service of the United States) when deemed necessary in the interest of the national security (see 12 FAM 235.2). The Secretary delegates the authority to approve denial, revocation, or reinstatement of security clearance eligibility to the Assistant Secretary, Bureau of Diplomatic Security. When deemed appropriate, DS may take interim or alternative actions administratively, in accordance with 12 FAM 233.4.
b. These procedures will be used only in case of suspension from employment under 5 U.S.C. 7532, and will in such instance supersede the procedures set forth in 12 FAM 234 for revocation of security clearance eligibility.
12 FAM 235.2 Initiation of Suspension from Employment Under 5 U.S.C. 7532
(CT:DS-141; 10-28-2008)
a. The Department may not suspend an employee from employment under the authority set out in 12 FAM 235.1 pending further investigation, when the information indicates that the employee could be retained in some other appropriate duty status during a continuing investigation without a material adverse effect on U.S. national security, or the Department’s effectiveness in fulfilling its responsibilities in the national interest. Absent persuasive and pressing risk to the national security, the Department must not suspend employment under this section based on mere suspicion, nor for matters that should be resolved under other authority or procedures. However, if information is received or developed at any stage of the investigation that indicates an employee’s continued employment is not clearly consistent with the interests of the national security and that immediate action is necessary to protect such interests, then nothing in these regulations should preclude the employee’s suspension under 5 U.S.C. 7532.
b. When deemed necessary in the interests of national security, the Assistant Secretary, Bureau of Diplomatic Security, must submit a recommendation to suspend an employee from employment under 5 U.S.C. 7532, along with appropriate investigative materials, to the Secretary (or the Under Secretary for Management, acting in such matters as the Secretary’s designee). The Secretary (or designee) will conduct an immediate review and evaluation, and make a positive determination as to the necessity for the recommended action. When action recommended by DS cannot be affirmatively supported, the Secretary (or designee) will provide a written statement to that effect to the Assistant Secretary, Bureau of Diplomatic Security. The statement will also be included as a part of the investigative file of the individual concerned, and the individual will be reinstated with any back pay due. (See 12 FAM 236.)
12 FAM 236 PROCEDURES AFTER SUSPENSION FROM EMPLOYMENT UNDER 5 U.S.C. 7532
12 FAM 236.1 Notice and Answer
(CT:DS-264; 10-21-2016)
After an employee’s suspension under the provisions of 12 FAM 235.2 paragraph b, the procedures stated below must be followed.
12 FAM 236.1-1 Statement of Charges
(CT:DS-141; 10-28-2008)
a. A suspended employee (under 5 U.S.C. 7532), who is a citizen of the United States and who has a permanent or indefinite appointment and has completed the probationary or trial period, will be furnished a written statement of charges within 30 days after suspension.
b. The statement of charges will be signed by the Assistant Secretary, Bureau of Diplomatic Security, and be as specific and detailed as permitted by security considerations, including the need for protection of confidential sources of information. The statement will be subject to amendment within 30 days of issuance.
c. The employee will have the right within 30 days after issuance of the statement of charges, or any amendment thereof, to answer the charges and submit affidavits.
12 FAM 236.1-2 Notification of Suspension
(CT:DS-141; 10-28-2008)
a. A suspended employee (under 5 U.S.C. 7532), not within the terms referenced in 12 FAM 236.1-1, will be notified as soon as possible of the reasons for suspension.
b. The notice will be signed by the Assistant Secretary, Bureau of Diplomatic Security, and will be as specific and detailed as permitted by security considerations, including the need for protection of confidential sources.
c. The employee will have the right to submit, within 30 days after notice of the reasons for suspension, a statement with affidavits refuting or explaining the stated reasons for suspension.
12 FAM 236.2 Sufficiency of Answer
12 FAM 236.2-1 Hearing and Final Recommendations
(CT:DS-141; 10-28-2008)
Statements, affidavits, and supporting documents submitted in answer to the notice or charges referred to in 12 FAM 236.1-1 and 12 FAM 236.1-2 must be considered by a designated representative from the Office of the Legal Adviser for sufficiency. The Under Secretary for Management, the Legal Adviser, and the Assistant Secretary, Bureau of Diplomatic Security, will then conduct a hearing to allow the employee to answer charges, give explanations, examine and cross-examine witnesses, and to present documentary evidence. After consultation, a joint recommendation for the disposition of the case will be provided, along with all relevant documentation (including results of the hearing and any documentary evidence), to the Secretary (or the Secretary’s designee). If the recommendations differ, both will be provided for consideration by the Secretary (or the Secretary’s designee).
12 FAM 236.2-2 Determination
(CT:DS-141; 10-28-2008)
Upon receipt of the recommendation or recommendations referred to in 12 FAM 236.2-1, the Secretary (or the Secretary’s designee) must review the entire case and make a determination of the case as follows:
(1) If reinstatement of the suspended employee to the position from which the employee has been suspended is found to be clearly consistent with national security interests, the Secretary (or the Secretary’s designee) may restore the employee to such position, and provide any compensation (i.e., back pay) lost because of the suspension; or
(2) If reinstatement to the position from which the employee has been suspended is not found to be clearly consistent with national security interests, but it is found that employment of the suspended employee in another position in the Department is clearly consistent with national security interests, the Secretary (or the Secretary’s designee) may restore the employee to duty in such other position, with security clearance (or none) appropriate to the new position, and provide any compensation (i.e., back pay) lost because of the suspension; or
(3) If the Secretary does not find that reinstatement of the suspended employee to any position in the Department is clearly consistent with national security interests, the Secretary will terminate the employment of the suspended employee.
12 FAM 236.2-3 Notification
(CT:DS-141; 10-28-2008)
The Department must furnish the employee with a formal notice of the final disposition of the charges.
12 FAM 237 THROUGH 239 UNASSIGNED
12 FAM Exhibit 230
SEAD 4 Appendix C
(CT:DS-298; 07-27-2018)
EXCEPTIONS
Exceptions are an adjudicative decision to grant initial or continued eligibility for access to classified information or to hold a sensitive position despite failure to meet the full adjudicative or investigative standards. The authorized exceptions are defined below and supersede the definitions in Office of Management and Budget memorandum, Reciprocal Recognition of Existing Personnel Security Clearances, 14 November 2007.
Waiver (W):
Eligibility granted or continued despite the presence of substantial issue information that would normally preclude eligibility. Approval authorities may approve a waiver only when the benefit of initial or continued eligibility clearly outweighs any security concerns. A waiver may also require conditions for eligibility as described below.
Condition (C):
Eligibility granted or continued, despite the presence of issue information that can be partially but not completely mitigated, with the provision that additional security measures shall be required to mitigate the issue(s). Such measures include, but are not limited to, additional security monitoring, access restrictions, submission of periodic financial statements, or attendance at counseling sessions.
Deviation (D):
Eligibility granted or continued despite either a significant gap in coverage or scope of the investigation. "Significant gap" for this purpose means either complete lack of coverage for a period of six months or longer within the most recent five years investigated or the lack of one or more relevant investigative scope components (e.g., employment checks, financial review, or a subject interview) in its entirety.
Out of Scope (0):
Reinvestigation is overdue.