DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARY MANPOWER AND RESERVE AFFAIRS 111 ARMY PENTAGON WASHINGTON DC

Transcription

1 DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARY MANPOWER AND RESERVE AFFAIRS 111 ARMY PENTAGON WASHINGTON DC SAMR MEMORANDUM FOR SEE DISTRIBUTION SUBJECT: Clarifying Policy in Army Directive References: a. Army Directive (AD) , Conduct of Screening and Background Checks For Individuals Who Have Regular Contact With Children in Army Programs, 10 September b. Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) memorandum, Additional Guidance on Army Directive , 6 January 2016 (hereby rescinded). c. Memorandum, ASA (M&RA), 6 January 2017, subject: Extension of Additional Guidance on AD , (hereby rescinded). d. Department of Defense Instruction (DoDI) , Background Checks on Individuals In DoD Child Care Services, Incorporating Change 1, 14 July e. Army Regulation (AR) , (Child Development Services), 11 May f. Title 5, Code of Federal Regulations, Part 731, Suitability. g. AR 25-22, (The Army Privacy Program), 22 December h. DoDI , Child Development Programs (CDPS), 5 August i. Department of Defense Manual , Background Checks On Individuals In Department Of Defense Child Development And Youth Programs, 24 January j. AR 215-3, (Nonappropriated Funds Instrumentalities Personnel Policy), 16 September Purpose. This memorandum issues new implementation guidance regarding background checks for child services positions; supplementing reference 1a and superseding references 1b and 1c.

2 3. Applicability. This guidance applies to all categories of personnel covered by references 1a and 1d. 4. Policy. a. Centralization of Child Services Background Checks. The Army G-1 Child Services Suitability Cell (CSSC) conducts centralized processing of child services background checks. CSSC provides services to selected Installation Management Command (IMCOM) garrisons and Cadet Command for Junior Reserve Officer Training Corps instructors. 1 The CSSC background checks include obtaining and reviewing the following: Federal Bureau of Investigation (FBI) fingerprint checks; Installation Records Checks (IRC); National Background Investigation Bureau (NBIB) investigations; reports from the State Criminal History Repository (SCHR); and any other relevant sources. The CSSC categorizes all and adjudicates some derogatory information, manages associated processes, and retains Army records of child services background checks. b. Reference Checks. Reference checks are particularly important for positions requiring interaction with children to ensure the Army fulfills its responsibility to provide a safe environment for children and youth under the age of 18 in Army programs. Reference checks are part of the hiring strategy and are used to verify information provided by the candidate, predict the candidate s success, and gain additional knowledge about the candidate s abilities prior to a decision being made to proceed with hiring or placement. Reference checks are critically important prior to approving any selection. (1) Reference checks for child services personnel are described in reference 1e. All personnel covered by references 1a and 1d will undergo reference checks. Military personnel, who in the course of performing their military duties have regular contact with children, do not require reference checks. (2) Military personnel having regular contact with children while serving in a volunteer position, or other non-duty capacity, must undergo reference checks IAW this sub-paragraph. (3) Reference checks revealing information considered derogatory (as defined in reference 1a or 1d) must be forwarded to the Local, Command, or Headquarters, Department of the Army (HQDA) Program Review Board (PRB), as applicable, for suitability consideration. 1 The end state goal for the CSSC is to provide services to all Army activities with child services personnel. 2

3 (4) If reference checks meet criteria described in paragraph 4.b(3), above, the provisions of paragraph 4c, below, apply. c. Due Process Procedure. (1) Challenging Accuracy of Derogatory Information. Army activities will provide individuals the opportunity to challenge the accuracy and completeness of derogatory information, as defined by references 1a and 1d, received from all sources. Notice and opportunity to respond must be provided whenever derogatory information constitutes a potential basis for either automatic/mandatory or discretionary/presumptive disqualification from service and forms the basis of a decision to either forward the file for further consideration or terminate the process. Notice and opportunity to respond are not necessary for minor derogatory information, as defined in paragraph 4s of this memorandum and paragraph 7 of enclosure, unless it will form the basis for a decision to forward or not forward the file for further consideration. (2) If, after consideration of any response provided to rebut the derogatory information, the management official wishes to forward the file for further consideration, the entire derogatory information packet along with the individual s response should be forwarded to the applicable Program Review Board (PRB) for suitability consideration. (3) If an unfavorable suitability determination is made, appeal rights must be provided. Appeals for civilian employees will follow the requirements of reference 1d. For all other categories of personnel, management will provide individuals with written notice of the unfavorable determination, a 10 calendar day opportunity to respond, and notice of the final determination. Any additional information submitted by the individual shall be considered in the review process. d. Movement Between Positions (Including Permanent Changes of Station (PCS)). When vetted and cleared Army child services personnel transfer to new Army positions with the same scope of the duties and responsibilities with respect to children: (1) Preliminary background checks (FBI Fingerprint and IRCs), request for a new NBIB investigation, or initiation of Line of Sight Supervision (LOSS) is only required if: (a) In accordance with reference 1f, a break in service extends beyond 24 months (excluding periods of leave without pay (LWOP). The 24 month threshold does not apply to Family Child Care (FCC) providers or other in-home care providers (e.g., respite care), since they must undergo reverification every 12 months in accordance with reference 1a. 3

4 (b) The time elapsed from the previously completed background checks for an employee (excluding periods of LWOP), contractor, specified volunteer, or other individual residing in a FCC home is greater than 24 months, a complete reverification (including preliminary background checks (IRCs, FBI FP) with SCHR checks (as applicable) is required. (2) Soldiers who, in the regular course of their military duties (not as volunteers or in other capacities), have regular contact with children will not normally have a break in service between assignments. Therefore, if there are completed background checks and applicable reverifications, then there will be no requirement for new checks upon reassignments. (3) Normally, the previous Army suitability decision should be honored. However, the gaining commander may re-adjudicate the case of previously adjudicated derogatory information if concerns regarding such derogatory information exist. e. Disciplinary Actions and Suitability. An individual s poor performance or misconduct while in a position requiring regular contact with children will be handled in accordance with applicable personnel policies and regulatory/statutory guidance, after consultation with local labor counselors. Derogatory information previously adjudicated through normal processes will not be considered by the PRB at reverification. Any new derogatory information discovered through the reverification process may be referred to the PRB. f. Specified Volunteers Providing Line of Sight Supervision (LOSS). IAW with reference 1d, specified volunteers are not considered staff members; therefore, they are not authorized to provide LOSS. Any assignments of specified volunteers as LOSS supervisors must be terminated within 30 days of the effective date of this policy. g. Foreign Nationals (FN). Investigations and background checks for FNs will be as extensive as possible, considering U.S. and host nation laws, policy, and guidance. (1) For FNs in positions in the United States, background checks will be conducted as follows: (a) FNs who have resided in the United States for at least three of the previous five years. FBI Fingerprint checks; Installation Records Checks; SCHR checks; and a NBIB Tier 1 investigation (to include an INTERPOL check if the FN resided outside of the United States for more than six months during the five year period). 4

5 (b) FN who have resided in the United States for less than three of the previous five years. FBI Fingerprint checks; Installation Records Checks; SCHR checks; and a standalone INTERPOL check from NBIB. (c) Reverifications for FNs in the United States will follow the requirements of references 1a and d (as applicable). (2) For FNs in overseas positions, background checks will be conducted as follows: (a) Subject to host country law, FN applicants must undergo a background check/investigation comparable to those required in reference 1d, enclosure 3. (b) For FN applicants who resided in a foreign country (other than the current overseas location) for any consecutive period of six months or more in the previous five years, a standalone INTERPOL check will be requested from NBIB. 2 (c) The European Criminal Records Information System facilitates the exchange of information on criminal records throughout the European Union (EU). FN applicants of European origin being employed in a European country in which they are not a citizen will obtain and present a European Police Good Conduct Certificate (EPGCC) as part of the child services background check process. 3 (d) Reverifications will follow the requirements of references 1a and 1d. h. INTERPOL Checks for U.S. Citizens. If a U.S. citizen has resided in a foreign country for any consecutive period of six months or more in the previous five years, a standalone INTERPOL check will be requested from NBIB. i. DoD Consolidated Adjudication Facility (CAF) Decisions. When CAF makes a favorable child services determination of suitability based on results of an NBIB investigation and SCHR checks, and pre-employment background checks and/or documents disclose no other derogatory information, the CAF decision will be final. j. Criteria for Automatic/Mandatory Disqualification. Effective immediately, reference 1d takes precedence over guidance in reference 1a. If there is any doubt about whether the conduct calls into question the applicant s integrity or judgment, or raises 2 When required by host nation law, the applicant should be notified how his/her personal information will be used and/or transferred outside the host country and must consent to this transfer for purposes of obtaining the Interpol check. 3 The EPGCC is an established instrument to check the background of employees for employment purposes in Europe. 5

6 questions about whether the conduct constitutes mandatory or presumptive disqualification criteria, the case will be forwarded for full adjudication. (1) Reference 1d, enclosure 3, paragraph 3b(1)(a), is clarified to include: child pornography; bestiality; or aggravated sexual abuse. (2) Reference 1d, enclosure 3, Paragraph 3b(1)(c), is clarified as follows: A "felony drug offense" is considered to be a felony conviction in a civilian court, or conviction under the UCMJ at a special or general court martial. k. Presumptive/Discretionary Disqualifying Criteria. Guidance in reference 1d takes precedence over guidance in reference 1a and will be applied immediately. If there is any doubt about whether the conduct or events could call into question the applicant s integrity or judgment, or if the criteria applies, the case will be forwarded for full adjudication. Reference 1d, enclosure 3, paragraph 4a(4), is clarified to include stalking, solicitation of a prostitute, and prostitution. l. Credit Checks. Credit checks will be required for certain positions having regular contact with children. (1) Personnel in Tier 1 positions identified by management and also identified as having significant financial responsibilities (using the NBIB Position Designation Tool (PDT)) will have a credit check added to the initial Tier 1 or Special Agreement Check SCHR request. Individuals with existing Tier 1 investigations moving to positions with significant financial responsibilities will have a credit SAC initiated. No credit check is required at reverification. (2) Personnel in Tier 2 or Tier 4 positions (identified using the NBIB PDT), will automatically have a credit check included in the initial and reverification Tier 2 or Tier 4 reinvestigation. m. Securing Documentation. The Commander Designated Entity (CDE) will maintain paper or electronic records of the results of initial and recurring background checks for child services positions. Paper files will be stored in a locked filing cabinet and electronic files are to be protected in accordance with reference 1g. n. Annual Update of Statement of Previous Arrest or Charge. The requirement to update the Statement of Previous Arrest or Charge contained in reference 1a (Enclosure 3, paragraph 4f; Enclosure 4, paragraph 4d; and Enclosure 5, paragraph 7) is hereby rescinded. Activities will continue to ensure individuals maintain DD Form 2981 for personnel in child and youth programs as required in reference 1h. 6

7 o. IRCs. Until a system is available to check prior DoD affiliation, all candidates for child services positions will undergo IRCs. p. Drug and Alcohol Records Checks. Checks for drug and alcohol records require responses from both the Army Substance Abuse Program and medical treatment facility. q. Reverification for Specified Volunteers and Individuals Residing in Homes of In Home Care Providers. Reverification for specified volunteers and individuals residing in homes of in-home care providers will be completed every five years in accordance with reference 1d. Individuals residing in homes of in-home care providers are required to immediately self-report incidents of disqualifying criteria, in accordance with reference 1d. r. Preliminary Records Checks. Local Civilian Law Enforcement, Provost Marshal Office / Directorate of Emergency Services, and Mental Health Records and Housing checks are no longer required. The preliminary checks will consist of the FBI fingerprint check and the IRC. The IRC must include a check of the Army Law Enforcement Reporting and Tracking System, Defense Criminal Index of Investigations, the Army Substance Abuse and the Substance Use Disorder Clinical Care programs, and the Army Central Registry. s. Adjudication of Minor Derogatory Information. If the incidence of minor derogatory information is isolated, non-recurring, not part of a pattern of behavior and mitigated by time, the CDE, CSSC representative, or Commander/equivalent may adjudicate the case (additional guidance in Enclosure). However, if there is any doubt whether the finding or record is minor, if a combination of events and/or conduct in one or more of the categories indicates a pattern of behavior which could call into question the applicant s suitability for a child services assignment, or if a criminal case was pleaded out as a lesser charge, the Commander/equivalent will forward the case to the Command or HQDA PRB for adjudication. (1) The CDE or CSSC representative must be a trained and cleared component adjudicator in order to adjudicate minor derogatory information. (2) The garrison or equivalent commander may adjudicate minor criminal derogatory information as described in reference 1a, enclosure 6, paragraph 1c(6). (3) Final garrison, CSSC or Commander/equivalent decisions may only be made if no presumptive/discretionary disqualifying derogatory information exists. When a case includes both minor and presumptive/discretionary derogatory information, all 7

8 derogatory information must be reviewed and adjudicated through the full PRB panel process. t. Transitioning Between Personnel Categories. An individual who is cleared for one personnel category (for instance, specified volunteer) and subsequently applies for, or is assigned to, a different personnel category (for instance, FCC provider) may be subject to additional background check or investigative requirements and must be readjudicated through the applicable process even if the individual was previously found suitable to serve in the original category. u. Volunteers for Non-Federal Entities (NFEs). Private organizations such as the Boy Scouts of America, the Girl Scouts of America, and the American Red Cross are not Army sponsored or Army sanctioned programs, even if they operate on Army installations. The word scouts should not appear in the definition of Army Sponsored or Sanctioned Programs as listed under Terms in reference 1a, enclosure 7; therefore, there is no requirement to conduct background checks or investigations on volunteers for NFEs. v. Junior Reserve Officer Training Corps (JROTC) Adjudication. The Director, JROTC or, when applicable the acting Director, may exercise garrison commander authority for adjudicating JROTC cases. 5. Effective date. This policy guidance is effective immediately. 6. The Deputy Assistant Secretary of the Army for Military Personnel and Quality of Life (DASA(MPQ)) is the proponent for this program and has authority to grant exceptions to this policy. 7. My POC is Ms. Christine Traugott, christine.m.traugott.civ@mail.mil, or (703) Encl RAYMOND T. HOROHO Senior Official Performing the Duties of the Assistant Secretary of the Army (Manpower and Reserve Affairs) 8

9 DISTRIBUTION: Principal Officials of Headquarters, Department of the Army Commander U.S. Army Forces Command U.S. Army Training and Doctrine Command U.S. Army Materiel Command U.S. Army Pacific U.S. Army Europe U.S. Army Central U.S. Army North U.S. Army South U.S. Army Africa/Southern European Task Force U.S. Army Special Operations Command Military Surface Deployment and Distribution Command U.S. Army Space and Missile Defense Command/Army Strategic Command U.S. Army Cyber Command U.S. Army Medical Command U.S. Army Intelligence and Security Command U.S. Army Criminal Investigation Command U.S. Army Corps of Engineers U.S. Army Military District of Washington U.S. Army Test and Evaluation Command U.S. Army Installation Management Command U.S. Army Human Resources Command U.S. Army Financial Management Command U.S. Army Marketing and Engagement Brigade Superintendent, United States Military Academy Director, U.S. Army Acquisition Support Center Superintendent, Arlington National Cemetery Commandant, U.S. Army War College Director, U.S. Army Civilian Human Resources Agency CF: Director, Army National Guard Director, Business Transformation Commander, Eighth Army Deputy Chief of Staff for Intelligence, ATTN: DAMI-CP Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs), ATTN: SAMR-CP Office of the Assistant Chief of Staff for Installation Management, ATTN: DAIM-IS Office of the General Counsel, ATTN: SAGC-OP (Mr. McCallum) Office of The Judge Advocate General, ATTN: DAJA-LE (Ms. Esparraguera) 9

10 Additional Instructions 1. Reference Checks. a. All decisions related to the selection of child services personnel (as defined in reference 1d) will be supported by at least 2 references from previous employers. If the individual has not previously worked or if the previous employer fails to respond after two attempts, two other professional, volunteer, or school references may be used. If the individual being considered is not able to provide names from these sources, the manager will document this and only then may use other personal references (excluding relatives). b. Managers and supervisors of employees, and managers responsible for programs requiring the services of contractors, in-home care providers, volunteers and others covered by reference 1a, will obtain at least 2 references as described in para 4b above, and fully consider all positive and negative feedback prior to making a hiring or placement determination. c. The responsible supervisor or manager will not proceed with hiring or placement if the information obtained casts doubt on the individual s ability to perform successfully in the position. 2. Challenging Accuracy of Derogatory Information. a. Reference 1d requires that individuals with derogatory information discovered in their background checks be given the opportunity to challenge the accuracy and completeness of the information identified. This requirement applies to automatic/mandatory and presumptive/discretionary derogatory information discovered through IRCs, FBI Fingerprint results, the NBIB investigation, reports from states through the SCHR checks, or other sources (to include self-disclosure). b. Management will provide individuals with reported derogatory information the opportunity to challenge the derogatory information by providing them notice of the information, an opportunity to review the information, and an opportunity to challenge the accuracy and completeness of the reported information. Individuals provided notice and an opportunity to challenge derogatory information must do so within ten (10) calendar days of notification. Any information submitted by the individual should be considered in the review process. Official documentation showing the derogatory information is not accurate must be given the most weight in any decision. 3. Movement Between Positions (Including PCS). The gaining organization will obtain the suitability file and/or source documents, to include the record of the final adjudication, from the losing organization. 4. FNs. A request for a standalone Interpol check for a FN (residing in the United States or overseas) will be submitted as a Reimbursable Suitability/Security Clarifying Policy for Army Directive Enclosure

11 Investigation (RSI) (code T). The Federal Investigations Processing Center (FIPC) 553 form will be used to request this check. If no previous Office of Personnel Management (OPM)/NBIB investigation exists for the subject, or if the most recent investigation completed by OPM/NBIB is four years old or older, a new Standard Form 85 is required. 5. Interpol Check for U.S. Citizens. A request for a standalone Interpol check for a U.S citizen will be submitted as an RSI (code T). The FIPC 553 form will be used to request this check. If the most recent investigation completed by OPM/NBIB is four years old or older, a new Standard Form 85 is required. 6. DoD CAF Decisions. a. For cases being processed by the CSSC, all preliminary background checks and other pre-employment documents that disclose derogatory information must be uploaded into Electronic Questionnaires for Investigations Processing (e-qip) for CAF consideration, IAW reference 1i. b. For all activities not serviced by the CSSC, if preliminary background checks and/or other pre-employment documents disclose derogatory information that is not contained in the OPM investigation and SCHR check results, then the entire case will be reviewed by the local and/or command/component PRBs, as applicable. 7. Minor Derogatory Information. a. Examples of minor derogatory information pursuant to reference 1a, enclosure 6, paragraph 1(c)(4), are: (1) Traffic offense(s) not involving alcohol or drugs, reckless driving, or a pattern of traffic offenses occurring more than four years prior to the background check, even if there is nexus to the position. (2) Violations of regulations, such as on-post animal control or noise guidelines, where there is no report of a citation issued or action taken by the military police; or Service Member discharges, from any component of DoD, for failure to meet height and weight or physical fitness standards with an honorable characterization of service. b. Examples of minor criminal derogatory information pursuant to reference 1a, enclosure 6, paragraph 1c(6), are: (1) An isolated incident of minor criminal conduct that occurred ten years or more in the past. Examples include, but are not limited to, drunk and disorderly, liquor law violation (use/possession by minor), disorderly conduct, disturbing the peace, resisting arrest, abusive language, unlawful assembly, vagrancy, loitering, simple 2

12 assault with no physical contact, and trespassing. Assault involving physical contact and similar charges are never considered minor. (2) Arrest or misdemeanor charge for possession of marijuana or marijuana paraphernalia that occurred ten years or more in the past. These cases are distinguished from felony drug offenses, which are criteria for mandatory disqualification. (3) An isolated incident of Driving Under the Influence (DUI) or Driving While Intoxicated (DWI) that occurred ten years or more in the past. c. Examples of minor derogatory information meeting the criteria of reference 1a, enclosure 6, paragraph 1(c)(7), are: (1) Discrepancies between preliminary documents and the NBIB investigation results related to dates of attendance at schools or dates of employment, when clarifying documentation from the individual mitigates the discrepancy. (2) Minor employment or educational issues in the NBIB investigation report that occurred more than four years ago (e.g., issues related to absenteeism, negative attitude, or personality conflict). 3