Summary
The applicant, a 41-year-old software engineer for a defense contractor, was denied a security clearance due to a history of drug-related felony convictions in 1988, which resulted in consecutive sentences exceeding one year. Despite demonstrating significant rehabilitation through education and professional success, the judge concluded that the mandatory provisions of the Smith Amendment barred her from holding a security clearance without a waiver.
Under Guideline J (Criminal Conduct), the Statement of Reasons alleged the following: Applicant was convicted in May 1988 of cultivating marijuana, maintaining a dwelling house for the keeping of controlled and dangerous substances, and unlawful possession of drug paraphernalia. She was sentenced to five years imprisonment and a $5,000.00 fine on Count I, two years imprisonment and a $2,000.00 fine on Count II, and one year imprisonment and a $1,000.00 fine on Count V (1.a). Applicant's conduct is covered by the Smith Amendment (10 U.S.C. Sec. 986), which 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 (1.b).
The judge denied the clearance. The government raised disqualifying conditions DC a, DC b, DC c. The judge applied mitigating conditions MC a, MC b, MC f, MC g. The decision turned on the following: Applicant was convicted of multiple drug-related felonies in 1988, resulting in sentences exceeding one year, which are covered by the Smith Amendment; The judge found that the mandatory provisions of the Smith Amendment precluded granting a security clearance without a waiver.
Why the Applicant Was Denied
- Applicant was convicted of multiple drug-related felonies in 1988, resulting in sentences exceeding one year, which are covered by the Smith Amendment.
- The judge found that the mandatory provisions of the Smith Amendment precluded granting a security clearance without a waiver.
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 aappliedThe Criminal Behavior Was Not Recent.
- MC bappliedThe Crime Was an Isolated Incident.
- MC fappliedThere Is Clear Evidence of Successful Rehabilitation.
- MC graisedPotentially 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.
Key Rule Quoted
“The required showing of nexus, however, does not require the Government to affirmatively demonstrate the applicant has actually mishandled or abused classified information before it can deny or revoke a security clearance.”
Procedural Posture
- SOR issuedJun 4, 2002
- Answer filedJun 19, 2002
- Hearing heldOct 23, 2002
- Decision dateJan 22, 2003
Cite For
- Application of the Smith Amendment in Security Clearance Cases
- Consideration of Rehabilitation in the Context of Criminal Conduct
- Impact of Felony Convictions on Security Clearance Eligibility Under Guideline J