Summary
A 49-year-old communications systems engineer for a defense contractor was denied a security clearance under Guideline J (Criminal Conduct). The denial stemmed from a 1982 conviction for conspiracy to traffic in cocaine, for which the applicant received a five-year prison sentence. Although a charge of trafficking in cocaine was dropped, the applicant pleaded nolo contendere to the conspiracy charge following an arrest in January 1980.
The primary reason for denial was the Smith Amendment (10 U.S.C. Sec. 986), which imposes a mandatory bar on individuals with felony convictions resulting in over one year of incarceration from holding a security clearance, unless a waiver is granted. Despite the applicant completing probation and receiving a state pardon, the judge ruled that the pardon did not negate the conviction's effects under the Smith Amendment.
The judge acknowledged the applicant's rehabilitation and applied several mitigating conditions, but ultimately determined that the mandatory bar applied. The applicant also abandoned challenges to the constitutionality of the Smith Amendment's application. Consequently, the security clearance was denied.
Why the Applicant Was Denied
- Applicant was convicted of a felony and sentenced to more than one year of imprisonment, triggering the Smith Amendment's mandatory bar.
- The judge found that a state pardon does not negate the effects of the underlying conviction under the Smith Amendment.
- The applicant abandoned challenges to the constitutionality of the Smith Amendment's application to his case.
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.
Key Rule Quoted
“"The reasoning of the Board is this: Applicant's receipt of a state pardon (as here) finds no exception and cannot be presumed to be excepted from Congress' preemptive coverage of actions deemed to bar a grant or retainer of a security clearance by a federal agency."”
Procedural Posture
- SOR issuedNov 15, 2002
- Answer filedDec 1, 2002
- Hearing heldMar 27, 2003Originally scheduled for March 10, 2003, but adjourned.
- Decision dateSep 12, 2003Amended decision issued.
Cite For
- Application of the Smith Amendment in Security Clearance Cases
- Impact of State Pardons on Federal Security Clearance Eligibility
- Consideration of Rehabilitation in the Context of Mandatory Disqualifications Under Guideline J