Summary
A 35-year-old engineering associate for a defense contractor was denied a security clearance primarily under Guideline J (Criminal Conduct) due to felony convictions for marijuana distribution. In February 1997, the applicant was arrested and subsequently found guilty of attempted possession with intent to distribute marijuana, transportation of marijuana, and conspiracy to possess marijuana. The initial sentence included fines, a six-month suspension of driving privileges, and terms of imprisonment of five years, ten years, and five years for the respective charges.
The applicant's sentence was later reduced to eight months of incarceration, with the remainder suspended, conditioned on good behavior, supervised probation, and payment of approximately $2,544.00 in costs. Despite completing probation and demonstrating professional progress, the Department of Defense determined that the applicant was per se disqualified from holding a security clearance.
This disqualification was based on the Smith Amendment (10 U.S.C. Sec. 986), which mandates denial for individuals sentenced to more than one year of incarceration, even if the sentence is suspended. Although several mitigating conditions were considered, the judge found that the applicant's conduct fell squarely under this amendment, leading to the denial of the security clearance.
Why the Applicant Was Denied
- The applicant was convicted of three felony offenses related to marijuana distribution, resulting in a suspended sentence exceeding one year.
- The applicant's conduct is covered by the Smith Amendment, which prohibits security clearance for those sentenced to more than one year of incarceration without a meritorious exception.
Conditions Referenced
- DC araisedAllegations or Admission of Criminal Conduct.
- DC braisedA Single Serious Crime or Multiple Lesser Offenses.
- DC craisedConviction in a Federal or State Court, Including a Court-martial of a Crime and Sentenced to Imprisonment for a Term Exceeding One Year.
- MC arejectedThe Criminal Behavior Was Not Recent.The applicant's conduct was considered recent due to ongoing probation.
- MC brejectedThe Crime Was an Isolated Incident.The applicant's criminal conduct was not deemed isolated given the nature of the offenses.
- MC crejectedThe Person Was Pressured or Coerced Into Committing the Act and Those Pressures Are No Longer Present in That Person's Life.The applicant's age, intelligence, and military experience did not support a claim of coercion.
- MC gappliedPotentially Disqualifying Conditions C. and D. May Not Be Mitigated Unless, Where Meritorious Circumstances Exist, the Secretary of Defense or the Secretary of the Military Department Concerned Has Granted a Waiver.The applicant's case did not meet the threshold for a waiver under the Smith Amendment.
Key Rule Quoted
“The Smith Amendment bars persons sentenced to more than one year of incarceration, regardless of time actually served, from ever holding a security clearance, absent a meritorious basis for an exception.”
Procedural Posture
- SOR issuedSep 28, 2001
- Answer filedNov 27, 2001
- Hearing heldJan 15, 2002
- Decision dateFeb 19, 2002
Cite For
- Application of the Smith Amendment Regarding Felony Convictions
- Mandatory Disqualification for Sentences Exceeding One Year
- Consideration of Mitigating Conditions in Criminal Conduct Cases