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CASE

The statutory bars

Almost everything in a clearance case is weighed: the conduct, the circumstances, the whole person. The Bond Amendment is the exception: a federal statute naming a small set of situations in which an agency may not grant eligibility regardless of the weighing. The bars are narrow, and two statutory versions appear in the decided record.

The absolute bar: current unlawful drug use

A federal agency may not grant or renew a clearance at any level for someone who currently uses a controlled substance unlawfully or is an addict. Marijuana counts regardless of state law, because the bar follows federal law. This bar is not waivable. It reaches current use only: past use is weighed like any other concern, under Guideline H, where time since the last use matters and is measured on time since conduct.

Three narrower bars, for the most sensitive access

Three more bars apply only to the most sensitive categories of access (SCI, Special Access Programs, and Restricted Data), not to an ordinary Secret or Top Secret clearance:

  • a conviction with imprisonment for more than one year,
  • a dishonorable discharge, or
  • a court or board finding of mental incompetence.

Unlike the drug bar, each of these can be waived in meritorious cases. For contractor cases, that waiver decision belongs to the Director of DOHA.

The predecessor: the Smith Amendment (2000 to 2008)

From 2000 to 2008, an earlier version of these bars (the Smith Amendment, 10 U.S.C. 986) applied to Department of Defense cases only, and its reach was broader: its conviction bar reached ordinary clearances, not just the most sensitive programs. Congress replaced it in 2008 with the Bond Amendment, which extended the rules government-wide while narrowing the conviction, discharge, and incompetence bars to SCI, Special Access Programs, and Restricted Data. Older decisions in the record apply the Smith version, so the two names describe different eras of the same rule.

In the decided record

471 hearing-level cases in the record discuss one of the bars by name (444 the Smith-era version, 45 the Bond Amendment). Discussing a bar is not the same as being decided by it: some of these decisions weigh whether the bar applies and find it does not. As a group they were resolved favorably 11.7% of the time (55 of 471), far below the record overall. The decisions are available in full: cases discussing the Bond Amendment and the Smith-era cases.

Descriptive reference built from the public record and published rules. Not legal advice and not a prediction. Counts update as new decisions are ingested. The weighed side of every case is covered in the 13 guidelines.