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LESSON 2
DISLOYALTY, UNSUITABILITY, AND DEROGATORY INFORMATION
| CRITICAL TASKS: | 301-340-2001 |
OVERVIEW
LESSON DESCRIPTION
In this lesson, you will learn how derogatory information provided to CI agents is used in loyalty/suitability investigations.
TERMINAL LEARNING OBJECTIVE:
| TASKS: You will be able to list the types of activity that constitute disloyalty; identify individual characteristics that may cause someone to perform disloyal acts; and describe how derogatory information is handled. |
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CONDITIONS: You will be given narrative information and extracts from FM 34-60. |
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STANDARDS: Based on derogatory information received, you will conduct CI investigations into disloyalty and unsuitability in accordance with applicable regulations. |
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REFERENCES: The material contained in this lesson was derived from the following references in addition to the ones listed earlier in Lesson 1: AR 635-200.DA Pam 600-8. FM 34-60. |
INTRODUCTION
A CI investigation will usually concern an individual's loyalty and suitability for government service. An understanding of what constitutes disloyalty and unsuitability is essential for the proper conduct of these investigations.
This lesson has one part. At the end, there is a practice exercise. Answer all questions on the practice exercise and check your answers. Do NOT go on until you answer all the questions correctly.
PERSONNEL SECURITY PROGRAM.
Basic guidance for establishing a personnel security program is located in Executive Order 10450, which, in 1953, established the standards governing federal employment. EO 10450 states that an individual's acceptance or retention in federal employment must be clearly consistent with the national security. Under this standard, no true subversive could be found eligible for federal service.
EO 10450 also requires the disqualification from federal service on security grounds of all persons whose defective character, moral turpitude, questionable conduct, or other unfitness makes them subject to bribery, blackmail, or other pressure.
Definitions.
Personnel Security Investigations (PSI) serve as a basis for determining security acceptability for assignment and retention of military and civilian personnel in sensitive positions. Classified information or material will be entrusted only to persons cleared to receive such, and only when they have a need-to-know. The one type of PSI is the background investigation or BI.
Derogatory/adverse information is information that constitutes a possible basis for denial or revocation of security clearance or access to defense information. It may also be the basis for rejection or separation from service or employment with DA. In addition, it may be any information that would reflect unfavorably on an individual's loyalty, character, integrity, trustworthiness, and reliability. There are two categories: loyalty and suitability.
Adverse loyalty information is information that reflects unfavorably upon the loyalty of a US citizen.
Adverse suitability information is information that casts doubt upon an individual's character, trustworthiness, or reliability.
LOYALTY.
Rationale of the Loyalty Program.
The loyalty program exists to exclude true subversives from government employment. A true subversive is one who works to destroy our government by unlawful means. The government defends itself by setting a standard of conduct and then excluding true subversives from government employment because they do not meet that standard.
A loyalty action is not a criminal prosecution, but rather an administrative action to preclude security risks that would be caused by hiring subversives for government employment.
The acceptance or retention of any person in the military establishment must be clearly consistent with the interest of national security (EO 10450).
Specific criteria used to implement this standard in the Army are contained in AR 380-67.
Other binding regulations are:
* AR 600-37, which concerns unfavorable information.
* AR 604-10, which deals with the acceptance and retention of military personnel in the Army.
The logic of the regulation requires that when an individual's loyalty is in doubt, and his or her clearance is denied or revoked under, the individual must be processed for elimination under AR 604-10.
Rights of the Individual in Security Adjudications.
Civilians. The landmark case in this area, Greene v. McElroy, 360 US 474 (1959), showed that the constitution will not tolerate an arbitrary revocation of a security clearance. The Navy revoked Greene's security clearance and informed ERCO, Greene's employer, that the company would lose military contracts if Greene remained as an employee. Greene was fired by ERCO. He brought suit and won a decision in the Supreme Court. One of Greene's contentions was that he was denied the right to confront the witness against him.
DOD Civilian Employees. The Secretary of Defense was given the power to remove civilian employees without providing confrontation where national security would be seriously endangered. EO 10865 states if full confrontation is denied, the individual will be "given a summary of the information, which shall be as comprehensive and detailed as the national security permits." However, all cases to date have permitted full confrontation.
Military Members. Paragraph 6-7, AR 604-10 states the military member will "be confronted with the witnesses against him to the maximum extent possible...consistent with national security." While the military member receives less than a full confrontation at the hearing, the adjudicator will consider the fact that the military member "may have been handicapped in his defense by the nondisclosure to him of classified information or by the lack of opportunity to cross-examine persons constituting sources of such information."
Subversion Evidence.
Loyalty is Presumed. Disloyalty must be proved by evidence of subversive activity. The decision will be favorable to the subject if the agent fails to provide the adjudicator with evidence of subversive activity.
Grounds for finding a subject to be disloyal would include evidence that he has committed, attempted to commit, or conspired to commit any act of sabotage, treason, espionage, or sedition. All of these crimes contain an element of disloyalty. When a CI agent uncovers evidence of such crimes, his superiors will turn it over to the proper authorities for legal action.
Disloyalty can be proven only on the basis of an individual's actions not on his beliefs or reading habits. Consequently, the evidence used to prove disloyalty breaks down into the following categories:
* Evidence of active and knowing membership in a subversive organization.
* Evidence of subversive activity.
* Evidence of advocacy of the violent overthrow of the government.
Membership in a subversive organization - or even being a knowing but passive member of such an organization is not a sufficient basis for initiating a disloyalty investigation. The individual must not only be aware of a subversive organization's unlawful goals, but also must be active in trying to achieve these unlawful goals.
Close, continuing association with a known subversive individual can be used as one criterion in gauging subversive activity. However, proof the individual sympathizes with the known subversive and acts with specific intent to aid the subversive in committing an unlawful act is required to begin a valid loyalty action.
The Smith Act establishes advocacy of the overthrow of the government by force or violence as a criminal offense. If an individual could be lawfully punished under the Smith Act, the individual may be legally rejected or eliminated from the military service on loyalty grounds.
Discharges. The usual approach for many years was to give an undesirable discharge to individuals removed from military service on loyalty grounds. This policy took into consideration the activities of an individual prior to, as well as during, military service. In the case of Harmon v. Bruker, 355 US 579 (1958), the Supreme Court held the Army could take into consideration the individual's record for his period of military service. Honorable service resulted in an honorable discharge.
SUITABILITY.
Definition of Adverse Suitability Information.
A character defect is defined as information which, although not reflecting adversely on an individual's loyalty to the US, does cast doubt upon his good character, integrity, trustworthiness, or reliability. It raises a doubt that granting him access to classified information is consistent with national security.
The Suitability/Security Connection.
Character defects do not necessarily mean a person is a security risk. However, past investigations of espionage directed against the US have shown that suitability is a matter of concern to agencies responsible for personnel security.
People whose character defects have made them vulnerable to blackmail may be referred to as pressure risks. If a subversive strikes at their weak points (character defects), they could become subversive risks, even though they are loyal to the US.
Suitability is not solely a security consideration. It is primarily a personnel matter. The personnel security clearance program's interest in suitability is limited to those areas in which there is a rational, demonstrable connection with security.
Suitability has an indirect relationship with security. It does not necessarily follow that persons who engage in conduct that abuses generally accepted standards of morality will act in a manner contrary to the best interest of national security. Many individuals who have served the military and the US Government faithfully have led less than virtuous personal lives.
Unsupported or unresolved unfavorable suitability information may severely prejudice an individual's reputation and future. Every instance of unsuitability does not necessarily indicate a security risk; this distinction must be understood by everyone concerned with the suitability phase of the personnel security program.
Suitability Action Adjudication.
The adjudicator cannot be arbitrary, unreasonable, or capricious he or she must avoid hasty decisions. Unless credible derogatory information concerning suitability is uncovered, an individual is presumed to be suitable and will be granted a security clearance.
A rational connection between a character defect and a security risk is needed to support any unfavorable decision. This rational connection demonstrates the security risk presented by an unsuitable person. Every person is a security risk to some degree. Absolute security may be achieved only by absolute immobility. The adjudicator's problem is to determine whether the risk is greater than the risk presented by the average person.
The danger to security from vulnerable or unreliable persons is apparent. An individual who fears exposure of something that he has done, or is doing, is a target for blackmail. An individual is unsuitable by virtue of his conduct in violation of personnel regulations or the UCMJ. The conduct creates the unsuitability and vulnerability because fear of exposure creates the security risk.
The ultimate determination must be an overly common sense determination based on all available information, both favorable and unfavorable. Consideration must be given to the gravity of the derogatory information, the age of the individual, and the circumstances existing when the incident occurred; subsequent conduct, behavior, and performance of duty. Isolated instances of youthful indiscretion must not be construed as permanent proof of a character defect.
SUMMARY OF THE BASIS FOR DENIAL OR REVOCATION OF CLEARANCE.
The ultimate determination of whether granting a clearance is clearly consistent with the interests of national security must derive from a common-sense interpretation of all available information, both favorable and unfavorable. The granting, denial, or revocation of a security clearance may be a matter of far-reaching consequences to DA as well as to the individual concerned. Therefore, arbitrary and perfunctionary decisions must be avoided.
Depending upon their seriousness, the activities and associations listed below, whether current or past, may be the basis for denial of access to classified defense information or revocation of clearance:
Commission of any act of sabotage, espionage, treason, sedition, or attempts, threat, or preparation thereof; or conspiring with or aiding or abetting another to commit or attempt to commit any act of sabotage, espionage, treason, or sedition.
Establishing or continuing a sympathetic association with--
* A saboteur.
* A spy.
* A traitor.
* A seditionist.
* Anarchist or revolutionist.
* An espionage or secret agent.
* Representative of a foreign nation.
* Representative of a foreign nation whose interests are inimical to the interests of the US.
* Person who advocates the use of force or violence to overthrow the US Government or the alteration of the US Government by unconstitutional means.
Performing or attempting to perform his duties, to serve the interests of another government rather than the interests of the US.
Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, group, or combination of persons which is totalitarian, fascist, communist, or subversive. This includes organizations which have adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the US Constitution or which seeks to alter the form of the US Government by unconstitutional means.
Participation in the activities of an organization established as a front for an organization referred to above when the individual's personal views are sympathetic to the subversive purposes of such organizations.
Participation in the activities of an organization referred to above, in a capacity where the individual should reasonably have had knowledge of the subversive aims or purposes of the organization.
Participation in the activities of an organization with knowledge it has been infiltrated by members of subversive groups under circumstances indicating the individual was a part of, or sympathetic to, an infiltrating element or sympathetic to its purpose.
Sympathetic association with a member or members of an organization referred to above or sympathetic interests in totalitarian, fascist, communist, or similar subversive movements.
Currently maintaining a close continuing association with a person who has engaged in activities or associations of the type referred to above. A close continuing association may be considered to exist if the individual lives with, frequently visits, or frequently communicates with such person.
Close continuing association of the type described above, even though later separated by distance, if the circumstances indicate the renewal of the association is probable.
Any facts which furnish reason to believe the individual may be subject to coercion, influence, or pressure which may cause the individual to act contrary to the best interest of national security. Among matters which should be considered in this category are the presence of a spouse, parent, brother, sister, or offspring in a nation, a satellite thereof, or an occupied area thereof, whose interests are inimical to the interests of the US.
Failure or refusal to sign or pleading protection of the Fifth Amendment to the US Constitution or Article 31, UCMJ, in refusing to completely answer questions contained in Standard Form 86. Failing or refusing to answer any pertinent questions propounded in the course of an official investigation, interrogation, or examination, conducted for the purpose of ascertaining the existence or extent, or both, of conduct of the nature described above.
Willful violation or disregard of security regulations.
Intentional unauthorized disclosure to any person of classified information or disclosure of other information prohibited by any law.
Any deliberate misrepresentation, falsification, or omission of material fact.
Any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct; habitual use of intoxicants to excess; drug abuse; or sexual perversion.
Acts of reckless, irresponsible, or wanton nature which indicate such poor judgment and instability as to suggest the individual might disclose security information to unauthorized persons or assist such persons, whether deliberately or inadvertently, in activities inimical to the security of the US.
All other behavior, activities, or associations which tend to show the person is not reliable or trustworthy.
Any illness, including any mental condition, of such nature which, in the opinion of competent medical authority, may cause significant defect in the judgment or reliability of the individual.
Any excessive indebtedness, recurring financial difficulties, unexplained affluence or repetitive absences without leave which would lead one to believe that the individual might act contrary to the best interest of national security.
Refusal to take the Oath of Allegiance or Oath of Service and Obedience.
Repeated acts of carelessness leading to inadvertent loss or compromise of classified material.
RELATIONSHIP BETWEEN SECURITY AND PERSONNEL REGULATIONS.
When a commander becomes aware of unfavorable information derived from intelligence files and security investigations, the commander will take one or more of the following actions:
* Suspend or deny access to classified information under the provisions of AR 380-67. Also, if necessary, initiate an investigation under the provision of AR 381-20 or other appropriate directives to ascertain the facts.
* Reassign the individual to a less sensitive position.
* Suspend favorable personnel actions (flag the soldier).
Access Suspension.
Commander's Options. A commander who becomes aware of credible derogatory information, falling within the scope of page E-1, AR 380-67, that concerns a member of the command who has a security clearance, will take one of the following courses of action:
Suspend the individual's access to classified information. Annotate DA Form 873, Part III. Conduct an inquiry or request an investigation from Defense Security Service (DSS), if appropriate. Complete DA Form 5248-R and forward to the US Central Personnel Security Clearance Facility (CCF) with DA Form 873 attached.
Suspend the individual's access and forward all derogatory information to the Commander, CCF, on DA Form 5248-R with commander's recommendation and DA Form 873 attached. Item II of DA Form 5248-R will indicate information forwarded is considered sufficient for determination and no further inquiry or investigation is pending or contemplated.
If the information available to the commander is insufficient to warrant suspension of access, or in a borderline case in which propriety of suspension action is questionable, forward the derogatory information to the CCF on DA Form 5248-R. This indicates access has not been suspended pending final determination by Commander, CCF.
If the individual is currently indoctrinated for Sensitive Compartmented Information (SCI) access, process suspension action in accordance with TB 380-35.
Reporting of Derogatory Information.
Initial Reports. Reports of access suspension will include a brief summary of the action that caused the suspension and will indicate that the commander or appropriate authorities are conducting an inquiry/investigation into the incident.
Follow-up Reports. Reports will be submitted at 60-day intervals if the commander has not taken final action, or for example if the matter is still pending action by civil court. A brief synopsis is all that CCF will require until the commander takes final action is taken by the commander.
Final Reports. At the termination of command action, a final report will be forwarded to CCF. The report will indicate the action taken as a result of the incident that caused the initial suspension. The final report should contain recommendations of the command concerning the subject's restoration of access or revocation action of the security clearance. It should include documentation of the derogatory information, for example, Military Police (MP) reports or blotter entries, AR 15-6 investigations, commander's inquiries, results of limited investigations, copies of courts-martial or Article 15s, medical reports or psychiatric examinations, and so on. CCF will not consider as final a report that subject is pending discharge under the provisions of AR 635-200. When the individual has been discharged, a copy of the discharge order will be forwarded to CCF as an enclosure to DA Form 5248-R.
Restoration of Access.
The Commander, CCF, is the only person designated to restore access suspended by a local commander. Restoration of access is accomplished by executing a new DA Form 873 with the information provided by CCF.
Elimination from Military Service Prior to Security Determination.
When revocation action is recommended and the individual is also being considered or processed for elimination from the US Army, the commander will monitor the individual's elimination action. He will take all appropriate measures to expedite the resolution of the proposed revocation before the subject elimination. If the individual is eliminated from military service before a final security determination by the Commander, CCF, the local commander will complete the following actions.
The Commander, CCF, will be notified the individual has been discharged. Notification will include full identifying data and refer to the report of access suspension. A copy of the order authorizing discharge will be forwarded as an enclosure to the DA Form 5248-R.
If the DA Form 873 was not previously forwarded to CCF, it will be withdrawn from the individual's Military Personnel Record Jacket (MPRJ) and the "Remarks" block annotated "Eliminated from the US Army for cause...(date)."
Denial/Revocation of Security Clearance.
Only the Commander, CCF, may deny or revoke a security clearance under the provisions of para 8-201(a), AR 380-67.
When credible derogatory information is received at CCF and an adverse security clearance action is contemplated, the Commander, CCF, will:
* Forward a letter of intent to deny or revoke a security clearance to the individual, through the commander.
* Provide a copy of the letter of intent to the appropriate office accredited by the US Army Investigative Records Repository (USAIRR).
* Forward the pertinent information for command action when the information available to CCF indicates disciplinary or elimination action may be warranted.
The commander will ensure the individual acknowledges receipt of the letter of intent by signing and dating the form letter enclosed with the letter of intent. The individual must indicate whether he intends to submit a rebuttal. The form letter acknowledging receipt of the Letter of Intent will be immediately forwarded to the Commander, CCF, by the official who presents the letter to the individual.
All replies to letters of intent will be endorsed by the individual's immediate commander and then sent through channels to the Commander, CCF. Endorsements should include commander's recommendation(s) relating to the individual's security clearance.
The additional time required to forward the individual's response through channels must be considered in the 60 days allowed for return of the letter of intent to CCF. Commanders will give the individual a realistic suspense date in which to reply to the letter of intent to allow adequate mailing time through channels.
If unusual circumstances will prevent the individual's reply from reaching CCF within 60 days a request for an extension must be furnished prior to the 60-day suspense. This letter must explain the reason for the delay and indicate the date by which CCF may expect the reply's arrival.
After receiving the response to the letter of intent, the commander, CCF will make a final determination and will then furnish it to the local commander. A copy will be furnished to the appropriate office accredited by the USAIRR.
A commander who receives a letter of intent to deny or revoke a security clearance concerning an individual who is no longer assigned to the unit, will take one of the following actions:
* If the individual was transferred, endorse the letter of intent and send it to the gaining command to complete the action. Forward an information copy of the endorsement to the Commander, CCF, ATTN: PCC-FP-RR.
* If the individual has separated/ discharged from the Army, advise the Commander, CCF, and furnish a copy of the separated/discharge orders.
When an individual is incarcerated by military or civil authorities following his conviction of a criminal offense, or when an individual is dropped from the rolls as a deserter, the commander will take the following actions:
* Withdraw the DA Form 873 from the individual's MPRJ and stamp, or print across the face, "Revoked by authority of the Commander, CCF, Deserter--(Date)," or "Revoked by authority of Commander, CCF, Incarcerated--(Date)."
* Forward the DA Form 873 to the Commander, CCF, ATTN: PCC-FP-RR, Fort George G. Meade, Maryland 20755.
Suspension of Favorable Personnel Actions.
Commanders and DA staff agencies must ensure favorable personnel actions are suspended for members against whom an investigation is initiated. Military or civilian authorities may initiate investigations into credible allegations or incidents that reflect unfavorably on the character or integrity of the member. The investigation begins when any of these authorities decides to investigate the involvement of the Army member.
Suspension will be initiated on all members, E-4 and above, when the investigation is formal. Suspension may also be initiated on any commissioned or warrant officer when an informal investigation could result in administrative, punitive, or disciplinary action.
Report suspension of favorable personnel actions on DA Form 268. (See Appendix D for a sample.) Commanders will prepare DA Form 268 or prepare a DA Form 4187 (Personnel Action) asking the Personnel and Administrative Center (PAC) to prepare the DA Form 268. The adjutant, executive officer, or deputy commander will sign DA Form 268. When DA staff agencies initiate a suspension, they will prepare DA Form 268 and distribute it. DA Form 268 prepared by a commander or PAC is sent to custodian of the MPRJ for distribution.
The commander will submit interim reports 2 months after the suspension action is initiated and every 2 months thereafter until the case is closed. (Example: a suspension initiated on 15 January 1995 will require an interim report to be submitted by 15 March 1997, until an interim report is no longer required or final report is submitted.) Exceptions are noted below:
Interim reports are required only once 15 May 1997, and so on, for a member dropped from the roll. Control of reports will be assumed by the command where the member is returned to military control for final disposition. An interim report is required upon the member's return to military control.
If the command has submitted an interim report stating that it has punished the subject by Article 15 or court-martial, no further interim reports are required.
For the above cases, the command will resume submissions when there is a change in status of the case or the member.
The commander will submit separate reports on each suspension action. For example, a member involved in an incident under investigation before the first suspense is closed, may become subject to another suspension action.
Reports on each suspension action are exempt from reports control under paragraph 7-2h, AR 335-15.
Distribution of interim and final reports will include the same distribution as the initial report.
The commander or DA agency that controls a suspension of favorable personnel action will ensure interim and final reports are submitted promptly. These reports are required to complete suspension control files. They protect the rights of its member. When interim or final reports are not received within a reasonable time by the addressee who received initial reports, the receiving command or agency will begin action to determine the status of the case.
Final unfavorable reports submitted on officers will include the following:
* Letters of reprimand, admonition, or censure to be included in the member's Official Military Personnel File (OMPF) (original and one copy). Letters will be processed according to Chapter 2, AR 680-37.
* Court-martial orders (two copies).
* All Article 15s.
The final DA Form 268 on enlisted members will include a summary of disciplinary or administrative action taken in block 18 (Synopsis of Available Information). Supporting documents are not needed.
For procedures on suspension of favorable action, see DA Pam 600-8.
Command Responsibility. In other than security cases, the responsible commander or DA agency initiating a suspension of favorable personnel action will maintain control until the case is closed or transferred to another commander.
In security cases, major commanders will establish procedures to submit and control suspension reports for all members for whom suspension action has been initiated under AR 604-10.
PRACTICE EXERCISE
