Sec. 1043. Unfavorable security clearance eligibility determinations and appeals
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Each head of a component of the Department of Defense shall provide to each covered individual described in paragraph
(2)of such component seeking or having access to classified information or sensitive compartment information with administrative due process procedures described in paragraph
(3)through the Defense Office of Hearings and Appeals. A covered individual described in this paragraph is a member of the Armed Forces, a civilian employee employed by a component of the Department of Defense, or a contractor employee described in Department of Defense Manual 5220.22, Volume 2 (relating to National Industrial Security Program: Industrial Security Procedures for Government Activities), or successor manual. The administrative due process procedures described in this paragraph are the administrative due process procedures described in Department of Defense Directive 5220.6 (relating to Defense Industrial Personnel Security Clearance Review Program), or successor directive, and Executive Order 10865 ( 50 U.S.C. 3161 note; relating to safeguarding classified information within industry). In order to simplify, centralize, and unify the administrative processes for unfavorable security clearance eligibility determinations for covered individuals described in subsection (a)(2), the Secretary of Defense shall ensure that all hearings, appeals, and final denials and revocations of security clearance eligibility are performed by the Defense Office of Hearings and Appeals with administrative due process procedures. The Secretary of Defense shall update Department of Defense Manual 5200.02 (relating to procedures for Department of Defense Personnel Security Program) and Department of Defense Manual 5220.22, Volume 2 (relating to National Industrial Security Program: Industrial Security Procedures for Government Activities) to conform with the requirements of subsections
(a)and (b). The Director of the Defense Office of Hearings and Appeals may render eligibility determinations for access to classified information and sensitive compartmented information pursuant to procedures and guidelines that the Director shall issue in consultation with the Director of National Intelligence. In a case in which a contractor or civilian employee of the Federal Government holding an active security clearance is seeking to transfer that clearance for a new position in the Department of Defense and in which an agency or department of the Federal Government possesses security relevant information about that clearance holder that is related to eligibility for access to classified information and makes known the existence of such security relevant information in the commonly accessible security clearance databases of the Federal Government, but without taking any action to suspend or revoke that clearance holder’s security clearance, the Department of Defense component considering the transfer of a clearance shall promptly make a request to receive the security relevant information from the agency or department in possession of such information. In a case in which an agency or department of the Federal Government receives a request to share security relevant information about a clearance holder pursuant to paragraph
(1)but fails to do so within 30 days of the date on which the request is made, such failure shall trigger procedural and substantive due process rights, established for the purposes of carrying out this section, for the clearance holder to challenge the security relevant information as if the information were the equivalent of a suspension, denial, or revocation of the underlying clearance. Members of the Armed Forces and civilian employees of the Department of Defense may not be suspended without pay because a security clearance is suspended or revoked prior to the conclusion of any appeal process to enable such members and employee to support themselves during an appeal process and to support themselves without resigning from Government employment and thereby losing standing to appeal the suspension or revocation of access to classified information. This section shall take effect on the earlier of— the date on which the General Counsel of the Department of Defense certifies to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives that the Defense Office of Hearings and Appeals is prepared for the provisions of this section to take effect; or September 30, 2024. This section shall apply to revocations of eligibility to access classified information or sensitive compartmented information that occur on or after the date on which this section takes effect pursuant to paragraph (1). Nothing in this section shall be construed to diminish or otherwise affect the authority of the head of a component of the Department to suspend access to classified information or a special access program, including sensitive compartmented information, in exigent circumstances, should the head determine that continued access of a covered individual is inconsistent with protecting the national security of the United States.
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Sec. 1043
Unfavorable security clearance eligibility determinations and appeals
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