Summary
A 22-year-old defense contractor employee was denied a security clearance primarily under Guideline J (Criminal Conduct) due to a felony conviction for receiving stolen property. In May 1998, the applicant was charged and subsequently found guilty of this felony in her home state. She received a suspended sentence of three years in the penitentiary and was ordered to pay $540.50 in court costs and restitution.
The denial was based on the finding that her felony conviction, which resulted in a sentence of more than 365 days confinement (even if suspended), rendered her per se disqualified from holding a Department of Defense security clearance under 10 U.S.C. Sec. 986, also known as the Smith Amendment. While the applicant demonstrated rehabilitation and severed ties with negative influences, and mitigating conditions such as the conduct not being recent, the circumstances surrounding the conduct having been mitigated, and the applicant having voluntarily sought assistance were considered, they were not sufficient to overcome the mandatory provisions of the Smith Amendment.
The judge determined that the applicant's actions were voluntary and knowing, influenced by peer pressure but not to an extent that would mitigate the disqualifying conditions. The conviction was considered recent, and her rehabilitation, though commendable, did not meet the threshold for a waiver under the Smith Amendment. Consequently, the security clearance was denied.
Why the Applicant Was Denied
- The applicant was convicted of a felony for receiving stolen property, which is covered by the Smith Amendment, barring her from holding a security clearance.
- The judge found that the applicant's actions were voluntary and knowing, influenced by peer pressure but not sufficient to mitigate the disqualifying conditions.
- The applicant's conviction was recent, and her rehabilitation, while commendable, did not meet the threshold for a waiver under the Smith Amendment.
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 crejectedThe Person Was Pressured or Coerced Into Committing the Act and Those Pressures Are No Longer Present in That Person's Life.The judge found that the applicant's actions were voluntary and knowing.
- MC brejectedThe Crime Was an Isolated Incident.The judge determined that the conviction was not isolated due to the nature of the conduct.
- 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 judge noted that the Smith Amendment's provisions apply, and a waiver was not granted.
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 issuedAug 30, 2001
- Answer filedOct 4, 2001
- Hearing heldNov 13, 2001
- Decision dateDec 26, 2001
Cite For
- Application of the Smith Amendment Regarding Felony Convictions
- Impact of Peer Pressure on Criminal Conduct Under Guideline J
- Consideration of Rehabilitation in the Context of Mandatory Disqualifications Under Federal Law.