Summary
A 41-year-old welder/brazier for a defense contractor was denied a security clearance under Guideline J (Criminal Conduct) due to a felony conviction for cocaine distribution. In November 1986, the applicant was arrested and charged with felony distribution of cocaine, found guilty, fined $3,000, and sentenced to three years of imprisonment. This conviction and sentence, exceeding one year of incarceration, triggered a per se disqualification from Department of Defense security clearance eligibility under 10 U.S.C. Sec. 986, known as the Smith Amendment.
The applicant's criminal conduct was deemed serious enough to warrant denial, despite the completion of probation. While the applicant demonstrated reliable work performance and efforts at rehabilitation, the judge determined these did not meet the threshold for an exception or waiver under 10 U.S.C. Sec. 986.
Ultimately, the mandatory provisions of the Smith Amendment barred the granting of a security clearance without a meritorious basis for an exception, which was not found in this case. Therefore, the security clearance was denied.
Why the Applicant Was Denied
- The applicant was convicted of a felony for cocaine distribution, resulting in a sentence of more than one year of incarceration, which is disqualifying under the Smith Amendment.
- The judge determined that the applicant's efforts at rehabilitation and reliable work performance did not meet the threshold for a waiver under 10 U.S.C. Sec. 986.
- The applicant's criminal conduct was deemed serious enough to warrant denial of the security clearance despite the completion of probation.
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 judge found that the applicant's past criminal conduct was not recent but did not mitigate the disqualifying conditions due to the Smith Amendment.
- MC brejectedThe Crime Was an Isolated Incident.The applicant had a prior conviction for marijuana possession, indicating a pattern of criminal behavior.
- MC gappliedPotentially Disqualifying Conditions C. and D. May Not Be Mitigated Unless, Where Meritorious Circumstances Exist, the Secretary of Defense Has Granted a Waiver.The judge applied this condition but found no meritorious circumstances to warrant a waiver.
Key Rule Quoted
“The ultimate determination of an applicant's eligibility for a security clearance depends, in large part, on the relevance and materiality of that evidence.”
Procedural Posture
- SOR issuedNov 5, 2001
- Answer filedDec 3, 2001
- Hearing heldJan 15, 2002Applicant supplemented the record with character references.
- Decision dateFeb 21, 2002
Cite For
- Mandatory Disqualification Under the Smith Amendment for Felony Convictions
- Consideration of Rehabilitation Efforts in Security Clearance Determinations
- Impact of Prior Criminal Conduct on Current Security Clearance Eligibility