Tag: Military Law Q&A

Yes, undisclosed marital infidelity can result in the loss of a security clearance, but the primary issue is often the concealment itself rather than the infidelity. The case is typically adjudicated under Adjudicative Guideline D (Sexual Behavior) and, more importantly, Guideline E (Personal Conduct). The government’s concern under Guideline D is that hidden sexual behavior can make an individual a target for blackmail or coercion by a foreign intelligence service. The secret creates a vulnerability.

The Guideline E concern is about honesty and integrity. If an applicant is asked about extramarital affairs on their SF-86 security questionnaire or during an interview and they deliberately lie or conceal the information, this is considered a serious lack of candor. The adjudicator will reason that if the applicant is willing to lie to the government about their personal life, they cannot be trusted to be honest about other security matters or to safeguard classified information. The act of falsification is often viewed as more disqualifying than the underlying affair.

A security clearance attorney defending an applicant must address both issues. They will advise the client to be completely truthful and to self-report the conduct if it was previously omitted. The attorney will then build a mitigation case. They will present evidence that the affair is over, that the vulnerability to blackmail no longer exists (e.g., the spouse is now aware), and that the applicant has taken steps to ensure responsible future conduct. The goal is to show the judge that despite the past poor judgment, the applicant is currently reliable and trustworthy.…

When a government contractor is accused of falsifying entries on their security clearance questionnaire (SF-86), a shifting evidentiary burden applies during the adjudication process before DOHA. The government has the initial burden of production. They must present evidence that supports the allegation of falsification. This is typically done by showing the SF-86 form where the applicant answered “no” to a question, and then presenting a conflicting official record, like a criminal history report or a credit check, that shows the answer should have been “yes.”

Once the government has established that a false statement was made, the burden effectively shifts to the applicant. The applicant must now produce evidence to rebut the presumption that the falsification was intentional and to mitigate the resulting security concerns under Adjudicative Guideline E (Personal Conduct). The ultimate legal standard the judge applies is whether granting the clearance is “clearly consistent with the national interest,” which means any doubt is resolved in favor of the government.

The contractor and their attorney must therefore present a strong, affirmative case. They must provide a credible, non-deceptive reason for the false statement, arguing it was an innocent mistake or a misunderstanding of the question, not a deliberate lie. They must also present a wealth of positive evidence under the “whole person concept” to demonstrate their overall honesty, integrity, and reliability. This is a high burden, as the act of falsification itself strikes at the heart of the trustworthiness required to hold a clearance.…

A military judge evaluates credibility disputes in urinalysis defense testimony by weighing the plausibility of the accused’s story against the objective scientific evidence and the testimony of government witnesses. When an accused testifies in their own defense, for example, claiming “unknowing ingestion,” the judge, acting as the trier of fact in a bench trial, must decide if their testimony is believable enough to create a reasonable doubt. The judge considers multiple factors in this evaluation.

First, the judge will assess the internal consistency and detail of the accused’s testimony. A vague, changing story is not credible. A detailed, consistent account of what they believe they ingested, how they got it, and why they thought it was safe is more persuasive. The judge will also observe the accused’s demeanor on the witness stand, looking for signs of sincerity or deception. Second, the judge will weigh the testimony against any corroborating evidence. Did the accused produce the supplement bottle for testing? Do their bank records show a legitimate purchase? Did a friend witness the event?

Finally, the judge will weigh the accused’s story against the government’s expert testimony. The government’s toxicologist may testify that the drug levels in the urine are too high to be consistent with a one-time accidental ingestion. The defense’s expert may testify to the contrary. The judge must evaluate the credibility of the competing experts. Ultimately, the judge synthesizes all these factors to decide if the defense’s version of events is plausible enough to create a reasonable doubt that the drug use was “knowing and wrongful.”…

Yes, a service member or veteran can request a reconsideration of their discharge characterization based on a new medical diagnosis that was not available at the time of their separation. The proper venue for this request is the service’s Discharge Review Board (DRB), if within 15 years of discharge, or the Board for Correction of Military Records (BCMR/BCNR) at any time. These boards are empowered to upgrade a discharge to correct an error or injustice.

The legal basis for the request is that the misconduct that led to the less-than-honorable discharge was a direct symptom of a then-undiagnosed medical or mental health condition, such as Post-Traumatic Stress Disorder (PTSD) or a Traumatic Brain Injury (TBI). The argument is that it is an injustice for a veteran’s record to be permanently stained by a negative discharge characterization for behavior that was caused by a service-connected medical condition.

An attorney representing the veteran will file a detailed application with the board. The most critical piece of evidence is the “nexus letter”—a formal medical opinion from a qualified doctor (often from the VA) that explicitly links the veteran’s past misconduct to the symptoms of their newly diagnosed condition. The application will also include the veteran’s full medical records and evidence of their good conduct since leaving the service. This is a very common and often successful basis for a discharge upgrade.…

When a commander initiates separation proceedings shortly after having endorsed the same service member for retention or promotion, it creates a significant factual inconsistency that a defense attorney can use to attack the commander’s credibility and motives. This sudden reversal of opinion suggests that the current recommendation for separation may not be based on a fair and holistic assessment of the soldier’s record, but on a more recent, perhaps minor, incident that is being blown out of proportion, or on a personal bias.

The defense attorney’s strategy at the separation board is to highlight this hypocrisy. They will introduce the commander’s previous, positive endorsement as a key piece of defense evidence. During cross-examination of the commander or in their closing argument, the attorney will ask, “What changed so dramatically about this soldier’s character and potential in the past few months to cause you to go from recommending retention to recommending discharge?” This puts the commander on the defensive and forces them to justify their contradictory positions.

The attorney will argue to the board that the commander’s earlier, positive assessment is a more accurate reflection of the soldier’s true value and potential. They will contend that the current recommendation for separation is an overreaction or an abuse of authority. This can be a very effective way to persuade the board members that the command’s current position is not credible and that the soldier should be retained, consistent with the commander’s own prior endorsement.…

Not necessarily. Whether a minor procedural error during a urinalysis test is “fatal” to the government’s case in a Non-Judicial Punishment (NJP) proceeding is a matter of the commander’s discretion. Unlike a court-martial, where a military judge will strictly apply the rules of evidence and procedure, a commander at an NJP has more flexibility. The standard is whether the commander is personally convinced by the evidence that the misconduct occurred.

A military defense attorney will still identify and argue every single procedural error, no matter how minor. This could be a small mistake on the DD Form 2624, a slight deviation from the collection protocol, or a minor administrative oversight. The attorney will argue that the military’s drug testing program demands perfection and that any error, no matter how small, casts doubt on the reliability of the test result. They will argue that the commander should not punish a soldier based on flawed evidence.

However, a commander can legally decide that a minor error, such as a time being off by a few minutes or a misspelled name on a form, is a “harmless error” that does not affect the scientific validity of the positive result. A major, substantive error, like a clear break in the chain of custody, would likely be fatal. But for minor errors, the commander has the discretion to overlook them. The attorney’s job is to persuade the commander that upholding the integrity of the program by demanding perfection is the correct and just course of action.…

Yes, a failed drug test at the Military Entrance Processing Station (MEPS) will have a significant, and often permanent, effect on any future attempt to enter the military, even if many years have passed with no subsequent misconduct. When an applicant fails the drug test, a permanent record is created in the military’s enlistment processing systems. They are typically given a permanent disqualification and a reentry code (RE-4) that makes them ineligible for future enlistment in any branch of the armed forces.

To overcome this, the individual must obtain a waiver. The waiver process for a prior drug failure is extremely difficult and approvals are very rare. The burden is on the applicant to show that they have been completely rehabilitated and are now, years later, a person of outstanding moral character who is suitable for military service. This requires a compelling and well-documented case.

An individual seeking such a waiver would need to provide a mountain of positive evidence. This includes a long and stable history of employment and education, clean criminal background checks, numerous strong letters of recommendation from respected community members, and a personal statement taking full responsibility for the past error. Even with all this, the waiver authority has full discretion to deny the request. The failed drug test at MEPS creates a very high, and often insurmountable, barrier to any future military service.…

Military adjudicative panels and DOHA judges assess risk under Adjudicative Guideline I (Psychological Conditions) by focusing on the potential for the condition to impact an individual’s judgment, reliability, and ability to protect classified information, rather than on the diagnosis itself. The mere presence of a mental health diagnosis, such as depression, anxiety, or PTSD, is not automatically disqualifying. The panel conducts a careful, individualized assessment of the specific circumstances.

The panel will evaluate several key factors to determine the level of risk. They will look at the seriousness and stability of the condition, whether it is being professionally treated, and whether the individual is complying with that treatment. A favorable prognosis from a qualified mental health professional is one of the most important pieces of evidence. The panel wants to see that the condition is being managed responsibly and is not currently causing any impairment in the applicant’s judgment or on-the-job performance.

An attorney representing the applicant will present a comprehensive mitigation case. They will provide all the relevant medical records and will often have the treating psychologist or an independent expert testify. The expert will explain the condition to the panel and offer a professional opinion that the applicant is psychologically stable and that their condition does not pose a security risk. By demonstrating responsible management and a favorable prognosis, the attorney can show the panel that the Guideline I concerns have been successfully mitigated.…

The steps for reinstatement after a security clearance was revoked due to a clear case of mistaken identity are focused on presenting definitive proof of the error to the appropriate government adjudicative body. This is a situation where a manifest injustice has occurred, as the government based its adverse decision on derogatory information that belongs to someone else.

The first step, with the help of a security clearance attorney, is to gather all the official documentation that proves the mistaken identity. This could include certified court records showing the dismissal of charges against the applicant because they were not the right person, a formal letter from the law enforcement agency acknowledging the error, or fingerprint records that prove the applicant is not the individual with the criminal history. The evidence must be clear and dispositive.

The attorney will then file a formal request for reconsideration or a motion to reopen the case with the agency that revoked the clearance (e.g., DOHA). The filing will present the new, powerful evidence of mistaken identity and will argue that the entire basis for the original revocation was factually incorrect. The request will ask that the revocation be immediately set aside and the clearance reinstated. Because this is a case of clear government error, once the definitive proof is presented, the agency is obligated to correct the record and grant relief.…

Yes, an officer can absolutely be retained in the service after a successful formal appeal of a General Officer Memorandum of Reprimand (GOMOR). The purpose of the appeal process is to correct errors and injustices. If an officer’s appeal is successful, it can significantly improve their chances of retention and continued career success. The success of the appeal is the key.

There are two primary outcomes of a successful GOMOR appeal filed with a body like the Department of the Army Suitability Evaluation Board (DASEB). The first and best outcome is the complete removal of the GOMOR from the officer’s official military personnel file. This means the reprimand is legally nullified as if it never happened. With a clean record, there is no basis for a command to seek separation, and the officer is fully competitive for promotion and retention.

A second, more common outcome is for the board to direct that the GOMOR be transferred from the officer’s performance section of their file to the restricted, non-viewable section. While the reprimand still technically exists, it is hidden from the view of all future promotion and selection boards. This effectively neutralizes its career-ending impact. By having the GOMOR either removed or restricted, the officer is put back on a path to a successful career, making retention the normal and expected outcome.…