Military Member & Clearance Investigations

Are you Active Duty and meeting with a security clearance investigator? Got some current or past misconduct in your life? What are your rights under Article 31, UCMJ, 10 U.S. Code § 831, when being "investigated?" Not what you think perhaps -- read United States v. Payne, 47 M.J. 37 (C.A.A.F. 1997).

In this case the service-member-appellant had been accused of rape. Appellant did not confess and also rejected a polygraph on the advice of counsel. Eventually the charges were dropped and he was allowed to go to his new duty assignment. Once at his new assignment he submitted an application to revalidate his security clearance. During the interview process with a DIS (civilian) investigator the prior rape allegation was discussed and a polygraph offered. Appellant agreed to submit to a polygraph. Prior to the pretest the DIS agent advised appellant of his rights under Article 31, UCMJ, and also, strangely because it was non-custodial, of a right to counsel. There was some discussion about appellant's "former" attorney but no contact or request for counsel was made. Ultimately, the appellant failed the polygraph and confessed to the prior rape allegation.

The following points flow from this case.
1. Under the circumstances this was not a criminal investigation or interview.
2. The DIS agents were not subject to the Code.
3. Mil. R. Evid. 305(e) was not violated.

The following lesson can be taken from this case.
1. Remember that when seeking a security clearance anything you say might end up being reported to law enforcement.
2. This is an important point because one of the reasons a security clearance can be denied is failure to cooperate in a security clearance investigation.
3. You are between Scylla and Charybdis (a rock and a hard place).

The following actions should be taken in a situation like this.
1. Stop the interview.
2. Tell the interviewer you'd like to seek legal advice and get back to him/her.
3. Talk to a lawyer knowledgeable in security clearance matters and the UCMJ.
4. You won't be denied a clearance just because you want to speak to a lawyer. And you can have a lawyer present (as we have done in cases).