Reporting Misconduct in the Army: Security Clearances

October 26, 2020

What are the requirements for Reporting Misconduct in the Army in regards to Security Clearances?

This article addresses the requirements to report misconduct to a Soldier's Security Office, in the Army. Self-reporting misconduct to the chain of command, which has different rules, is covered in this article.

Army Regulation 380-67, available at this link, addresses what a Soldier does and does not have to report to his/her Security Office. The general requirement is set forth in paragraph 9-4 and says that any Soldier "...having access to classified information must report promptly to their security office" any conduct covered under paragraphs 2-4 or Appendix I.

Paragraph 2-4 lists "criminal or dishonest conduct," "disregard of public law, statutes, EOs, or regulations, including violation of security regulations or practices," "habitual or episodic use of intoxicants to excess," "illegal or improper use, possession, transfer, or sale of or addiction to any controlled or psychoactive substance, narcotic, cannabis, or other dangerous drug," or "sexual behavior that involves a criminal offense..."

Appendix I is very broad, but includes alcohol incidents (i.e. DUIs, disturbing the peace), drug offenses, sexual offenses, and "criminal conduct."

This regulation is overly broad and essentially can be interpreted to mean that Soldiers should self-report, to their Security Office, any conduct that could be considered criminal. Failing to do so could have security clearance ramifications as well as result in an adverse action (i.e. Article 15, Letter of Reprimand) under the UCMJ.

The first thing a Soldier should ask is do they "have access to classified information." Likely, Security Offices interpret this to mean that anyone with a Security Clearance has access to classified information. However, certainly a reasonable interpretation would be that if a Soldier is not "read-on" to any programs, they would have no access to classified information. That being said, the safe interpretation is that if a Soldier has a Security Clearance, he/she is considered to "have access to classified information."

Therefore, any Soldier with a Security Clearance has an obligation to report, to their Security Office, any "criminal or dishonest conduct" that he/she has engaged in. Importantly, the requirements of Army Regulation 380-67 do not apply to reporting misconduct to the Chain of Command. The requirements outlined above apply only to reporting misconduct to the Security Office. While that distinction may seem trivial, it certainly is not.

Additionally, Soldiers need to be aware of the DoD Continuous Evaluation Program, explained at this link.

Any Soldier who is considering self-reporting their "criminal or dishonest conduct" to their Security Office should consult a military lawyer before doing so. Careful analysis by a military lawyer is needed.

This article was written by Attorney Matthew Barry

The Law Office of Matthew Barry represents clients worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.