12 FAM 230 

Personnel Security

(CT:DS-264;   10-21-2016)
(Office of Origin:  DS/SI/PSS)

12 FAM 231  GENERAL PROVISIONS

12 FAM 231.1  Definitions

(CT:DS-264;   10-21-2016)

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 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” 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 applicants “security file” as described in 12 FAM 227.4 paragraph (d).  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)  A disclosure of information by the employee to a supervisor in the employee's direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, 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 communication described by and that complies with subsection (a) (1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); subsection (d) (5) (A) of section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3033); or subsection (k) (5) (A), (D), or (G), of section 103H of the National Security Act of 1947 (50 U.S.C. 3517);

(c)  The exercise of any appeal, complaint, or grievance with regard to the violation of section A or B of Presidential Policy Directive/PPD-19;

(d)  Lawfully participating in an investigation or proceeding regarding a violation of section A or B of Presidential Policy Directive/PPD-19;

(e)  Cooperating with or disclosing information to an Inspector General, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General; or

(f)   If the actions described under subparagraphs (3) through (5) do not result in the employee disclosing classified information or other information contrary to law.

(6)  (U) 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.  They will be referred to throughout as the “requestor";

(8)  Security Appeals Panel – A high level panel responsible for reviewing appeals from access determinations, consistent with Part 5 of E.O. 12968; and

(9)  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-264;   10-21-2016)

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 Office 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 HR/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-264;   10-21-2016)

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 HR, 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  ELIGIBILITY FOR SECURITY CLEARANCE

12 FAM 233.1  Standards for Eligibility

(CT:DS-199;   11-12-2013)

a. Eligibility for a security clearance is predicated upon the individual meeting the personnel security standards set forth in E.O. 12968 and the Government-wide Adjudicative Guidelines.  No employee shall be deemed eligible for access to classified information 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. Individuals shall be determined eligible for a security clearance only if they 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; 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 eligibility for a security clearance, DS will examine a sufficient period of a person’s life to make an affirmative determination that the person is eligible for a security clearance.

c.  A determination of eligibility for a security clearance is a discretionary security decision based on judgments by appropriately trained adjudicative personnel.  An individual shall be determined eligible for a security clearance only where facts and circumstances indicate access to classified information 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, age, or sexual orientation in granting access to classified information.

e. In determining eligibility for a security clearance, 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 the standards in this section may be raised solely on the basis of the sexual orientation of the employee.

g. No negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling.  Indeed, such counseling may be a positive factor in eligibility determinations.  However, behavior that suggests a mental health condition may be considered where it directly relates to the standards for eligibility.  A mental health condition that does not impact an employee’s judgment, reliability, or stability will not have an adverse impact on a security clearance review.

12 FAM 233.2  Government-Wide Adjudicative Guidelines

(CT:DS-141;   10-28-2008)

a. DS determines eligibility for a security clearance in accordance with the Government-wide Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, approved by the President, which are summarized below.

b. As stated in the Adjudicative Guidelines, the adjudicative process is the careful weighing of a number of variables known as the whole person concept.  Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.

c.  The Adjudicative Guidelines establish thirteen factors that may raise eligibility concerns.  They are:

·         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

·         Guideline I:   Psychological Conditions

·         Guideline J:  Criminal Conduct

·         Guideline K:  Handling of Protected Information

·         Guideline L:  Outside Activities

·         Guideline M:  Use of Information Technology Systems

d. The ability to develop specific thresholds for action under these guidelines is limited by the nature and complexity of human behavior.  The ultimate determination of whether the granting or continuing of a security clearance is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the issues listed above, each of which is to be evaluated in the context of the whole person.

e. Although adverse information concerning a single Adjudicative Guideline may not be sufficient for an unfavorable determination, an individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior.  Notwithstanding the whole person concept, pursuit of further investigation may be terminated by DS in the face of reliable, significant, disqualifying, or adverse information.

f.  In evaluating the relevance of an individual's conduct in the context of the Adjudicative Guidelines, DS will consider the following factors:

(1)  The nature, extent, and seriousness of the conduct;

(2)  The circumstances surrounding the conduct, to include knowledgeable participation;

(3)  The frequency and recentness of the conduct;

(4)  The individual's age and maturity at the time of the conduct;

(5)  The extent to which participation is voluntary;

(6)  The presence or absence of rehabilitation and other permanent behavioral changes;

(7)  The motivation for the conduct;

(8)  The potential for pressure, coercion, exploitation, or duress; and

(9)  The likelihood of continuation or recurrence.

g. When information of security concern becomes known about an individual who is currently eligible for access to classified information, DS will also consider whether the person:

(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 employment; and

(6)  Should have his or her access temporarily suspended pending final adjudication of the information.

h. Decisions regarding eligibility for access to classified information take into account factors that could cause a conflict of interest and place a person in the position of having to choose between his or her commitment to the United States, including the commitment to protect classified information, and any other compelling loyalty.  Access decisions also take into account a person’s reliability, trustworthiness, and ability to protect classified information.  No coercive policing could replace the self-discipline and integrity of the person entrusted with the nation’s secrets as the most effective means of protecting them.  When a person’s life history shows evidence of unreliability or untrustworthiness, questions arise whether the person can be relied on and trusted to exercise the responsibility necessary for working in a secure environment where protecting classified information is paramount.

i.  Each case will be judged on its own merits.  An individual shall be determined eligible only where facts and circumstances indicate access to classified information is clearly consistent with the national security interests of the United States.  Any doubt shall be resolved in favor of the national security.

12 FAM 233.3  Granting a Security Clearance

(CT:DS-141;   10-28-2008)

When DS determines that granting an individual a security clearance is appropriate, DS/SI/PSS will promptly notify the requestor via email.  The requestor must notify the applicant, or in the case of a contractor, DS/IS/IND must notify the COR.  A hardcopy will be placed in the applicant’s security file as proof of notification.

12 FAM 233.4  Suspension of Security Clearance

(CT:DS-141;   10-28-2008)

a. When derogatory information is received regarding an employee with access to classified information, the Director of the Diplomatic Security Service (DS/DSS), based on a recommendation from the Senior Coordinator for Security Infrastructure (DS/SI), 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 the individual must complete certain requirements to maintain his or her 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 shall be notified, in writing, that his/her security clearance has been suspended.  DS shall also notify the appropriate human resource personnel or DS/IS/IND, and regional security officer, as appropriate, of the suspension.

d. Personnel whose security clearances have been suspended may not be placed on temporary duty status at diplomatic facilities abroad without the expressed written consent of DS/DSS.  They also may not be retained in positions requiring a security clearance except as specifically approved by DS on an interim basis with specified conditions and limitations.

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 varies greatly 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 director (DS/DSS) 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-264;   10-21-2016)

a. Assignment restrictions are conditions placed on a security clearance.  They are used to prevent potential targeting and harassment by foreign intelligence services as well as to lessen foreign influence and/or foreign preference security concerns; for example, if an employee and/or his or her close family members maintain citizenship or dual citizenship with that country or have substantial financial interests or foreign contacts there.  Foreign influence and preference are two of the U.S. Government’s Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.

b. If DS/SI/PSS identifies a security concern that may be disqualifying, i.e., one that could be used to reach an unfavorable determination on an individual’s eligibility for access to classified information, and the security concern can be lessened by restricting the individual’s assignment, the DS/SI/PSS office director may place an assignment restriction on the individual’s security clearance.

c.  Assignment restrictions may be determined when the initial clearance determination is made, during periodic reinvestigation, or when an individual’s personal situation changes; i.e., marriage, cohabitation, etc. (see 12 FAM 270).  An individual may be restricted from permanent assignment to a particular country or countries, or in some cases, a desk and/or program where that country or countries are the primary focus.  Desks or other 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. Employees:  Employees will be notified in writing by DS/SI/PSS of the specific reasons for the office director’s assignment restriction decision, except for rare circumstances when those reasons cannot be divulged due to national security.  Additionally, the Office of Career Development and Assignments (HR/CDA) (for Foreign Service employees), HR/REE (for Foreign Service candidates) bureau security officers (BSOs) (for Civil Service) and/or Charleston Shared Services Center (for FSFRC members) are notified by DS/SI/PSS when an employee has an assignment restriction.

e. Applicants:  In applicant cases, the office requesting the security clearance (relevant HR, DS/IS/IND for contractors, When Actually Employed (WAE) coordinator, Charleston Shared Services Center (for FSFRC applicants), etc.) will be notified when an applicant is given an assignment restriction.  The requestor is tasked with notifying the applicant of his/her assignment restriction and advising the applicant that he/she may contact DS/SI/PSS to obtain a copy of the office director’s decision, to include the assignment restriction adjudicative analysis.

f.  The employee is ultimately responsible for ensuring that he or she is not assigned to or work in a country, desk, or program to which he or she has an assignment restriction.

g. Review:  Within 30 days of receiving the PSS office director’s decision, to include the assignment restriction adjudicative analysis, the individual (employee or applicant) may request a review of that decision by the director of the Diplomatic Security service (principal deputy assistant secretary of state DS/DSS).  In exceptional circumstances, the employee/applicant may request an additional 15 days from DS/SI/PSS to complete this request for a review.  To request a review by the DSS director, the employee must submit a written response, including an executive summary, with any supporting documentation to DS/SI/PSS.  The decision of DS/DSS will be final.

h. Assignment restrictions will be reviewed by DS/SI/PSS each time an individual’s continued eligibility for access to classified information is re-adjudicated, typically every five years.  DS/SI/PSS may remove or continue the restriction at that time.  If an individual believes he or she has information (e.g., divorce or other) that may affect the continued need for an assignment restriction, he or she does not need to wait until a routine periodic reinvestigation is initiated but may submit updated information to DS/SI/PSS (via email at DSDirectorPSS@state.gov) and request reconsideration.

12 FAM 234  DENIAL OR REVOCATION OF SECURITY CLEARANCE

12 FAM 234.1  DS Decision and Review

(CT:DS-264;   10-21-2016)

a. When DS/SI/PSS concludes that the issuance or retention of a security clearance is not clearly consistent with the national security interests of the United States, DS/SI/PSS shall forward a recommendation for denial or revocation of security clearance, together with all relevant material, to DS/SI (or designee) for referral to the director (DS/DSS) for consideration.

b. If the director (DS/DSS) approves the recommendation, DS/SI/PSS will notify the individual, in writing, of the decision to deny or revoke that individual’s security clearance.  The notification will provide as comprehensive and detailed an explanation of the basis for the decision as the national security interests of the United States and other applicable law permits.  The letter will also advise the individual of his or her right to:

(1)  Be represented by counsel or other representative at his or her own expense;

(2)  Request, in writing and within 10 days of receipt of the letter, any documents, records, and reports upon which the denial or revocation of eligibility 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 (3 U.S.C. 552a).  If so requested, DS will endeavor to provide the documents within 30 days; and

(3)  Request, in writing and within 10 days of receipt of the letter, the entire investigative file, to the extent permitted by national security and other applicable law.  If so requested, DS will provide the file promptly and prior to the time set for the individual’s written reply:

(a)  Submit within 30 days of receipt of the investigative file or any other requested documents (unless DS grants an extension) a written reply to and request for review of the decision to deny or revoke his or her eligibility for access to classified information; and

(b)  If the individual is an employee who believes an action affecting his or her 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 the 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.

c.  If the individual 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 paragraph b (3)(b) above if he or she is properly cleared.

d. 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.

e. Other than as provided in subsections 12 FAM 234.1 paragraph b(2) and (3), neither Executive Order 12968 nor these procedures authorizes the individual to request information or other forms of “discovery”.

f.  Suspension from employment.  The Department may determine that immediate suspension without pay from employment under 5 U.S.C. 7532 is deemed advisable.

g. Review of denial or revocation.  When review is requested pursuant to subsection 12 FAM 234.1 paragraph b(3)(a), the assistant secretary for Diplomatic Security will review the director’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 234.2.

12 FAM 234.2  Inspector General Review of Alleged Reprisal

(CT:DS-264;   10-21-2016)

When the individual makes a reprisal allegation as referenced in 12 FAM 234.1 paragraph b(3)(b), the inspector general (IG), or his or her 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 Assistant Secretary for Diplomatic Security referenced in subsection 12 FAM 234.1 paragraph (g).  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-264;   10-21-2016)

a. Appeal of DS decision.  If the individual wishes to appeal the denial or revocation of a security clearance, 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 panel.  After receipt of the appeal, DS/SI/PSS will transmit the appeal and other relevant material to the Security Appeals Panel, which will endeavor to schedule a meeting to hear the appeal within four weeks of receiving the appeal.

b. Security Appeals Panel.  The Security Appeals Panel will be comprised of the Under Secretary for Management, the Principal Deputy Assistant Secretary for the Bureau of Human Resources, and an Assistant Secretary or Deputy, or equivalent, from a third bureau designated by the Under Secretary for Management.  When any member of the Appeals Panel is unable to serve, the Secretary, Deputy Secretary, or the Under Secretary for Management may designate an alternate.  The most senior member will serve as chair of the Appeals Panel.  A representative from the Office of the Legal Adviser and a representative from DS will serve as non-voting advisors to the Appeals Panel.

c.  Administrative Support.  Upon receipt of the appeal from DS, the Under Secretary for Management will schedule and notify DS of the date on which the Security Appeals Panel 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 will ensure that the employee, the panel members, and the legal adviser’s representative are notified of the date.  DS 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 legal adviser’s representative will advise the individual of relevant procedures and of the panel’s final decision in the case.

d. 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 panel will be the sole arbiter of relevance.

e. Personal Appearance.  The individual will have an opportunity to appear before the Security Appeals Panel in person, if requested.  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 in advance of the appearance, as provided in subparagraph d above.  The individual has no right to compel such statements.

f.  Deliberation.  The panel may request additional information from the individual or from the Department prior to rendering its decision.

g. Decision of the Security Appeals Panel.  The Security Appeals Panel may decide to grant or reinstate the security clearance or not to grant or reinstate the security clearance, and, to the extent authorized by law, take such other steps as it deems appropriate.  The panel will carefully consider the IG’s determination and recommendations, if any, before reaching its decision.  In reaching its decision, the panel will determine whether the granting or reinstating of the individual’s security clearance is clearly consistent with the national security interests of the United States.  Any doubt shall be resolved in favor of national security.  The panel’s decision shall be the final decision of the Department.

h. Appeal of Alleged Reprisal to the Inspector General External Review Panel.  An employee who makes a reprisal allegation pursuant to 12 FAM 234.1 paragraph (b)(3)(ii), 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 employee’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 employee, as nearly as practicable and reasonable, to the position such employee would have held had the reprisal not occurred.  The Under Secretary will forward the ERP’s recommendation to the Security Appeals Panel, which will carefully consider the recommendations and reach a decision in the matter.  The Security 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.

i.  Nothing in these provisions shall be deemed to limit or affect the responsibility and power 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 power 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