Summary
Applicant, a 61-year-old owner of a defense contractor, was denied a security clearance due to a felony conviction for federal income tax evasion in 1986, which resulted in a sentence exceeding one year of incarceration. Despite demonstrating rehabilitation and fulfilling tax obligations since his release, the mandatory provisions of the Smith Amendment barred clearance without a waiver. The judge acknowledged the applicant's positive transformation but ultimately concluded that the statutory disqualification remained in effect.
Under Guideline J (Criminal Conduct), the Statement of Reasons alleged the following: Applicant was convicted of a felony offense in 1986 for which he was sentenced to 366 days of incarceration for the offense of federal income tax evasion (failing to file his federal income tax returns for tax years 1980 and 1981) (1.a). As the result of Applicant's alleged felony conviction and sentence to more than 365 days confinement (actual service of less time notwithstanding), he is alleged to be per se disqualified from having a security clearance granted or renewed by the Department of Defense (DoD), pursuant to 10 U.S.C. Sec. 986, subject to any determination of an authorized waiver exception in a meritorious case (1.b).
The judge denied the clearance. The government raised disqualifying conditions DC c. The judge applied mitigating conditions MC f, MC a, MC b. The decision turned on the following: Applicant was convicted of a felony offense for federal income tax evasion, resulting in a sentence of more than one year of incarceration, which is covered by the Smith Amendment's mandatory disqualification; The judge found that the applicant's conduct fell under the provisions of 10 U.S.C. Sec. 986, which prohibits granting a security clearance to individuals with such convictions unless a waiver is granted; Despite evidence of rehabilitation, the judge determined that the statutory bar could not be mitigated without a waiver from the Secretary of Defense.
Why the applicant was denied
- Applicant was convicted of a felony offense for federal income tax evasion, resulting in a sentence of more than one year of incarceration, which is covered by the Smith Amendment's mandatory disqualification.
- The judge found that the applicant's conduct fell under the provisions of 10 U.S.C. Sec. 986, which prohibits granting a security clearance to individuals with such convictions unless a waiver is granted.
- Despite evidence of rehabilitation, the judge determined that the statutory bar could not be mitigated without a waiver from the Secretary of Defense.
Conditions referenced
- 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 fappliedThere Is Clear Evidence of Successful Rehabilitation.
- MC aappliedThe Criminal Behavior Was Not Recent.
- MC bappliedThe Crime Was an Isolated Incident.
Key rule quoted
“The Amendment does establish waiver authority for determined meritorious cases and places waiver authority in the Sec Def or the Secretary of the Military Department concerned.”
Procedural posture
- SOR issuedAug 16, 2001
- Answer filedSep 12, 2001
- Hearing heldDec 12, 2001
- Decision dateJan 24, 2002
Cite for
- Application of the Smith Amendment in Security Clearance Cases
- Consideration of Rehabilitation in the Context of Mandatory Disqualifications
- Waiver Authority Under 10 U.S.C. Sec. 986 for Felony Convictions