Summary
A 49-year-old communications systems engineer, employed by 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. This conviction triggered the Smith Amendment, which imposes a mandatory bar on individuals with certain felony convictions from holding a security clearance.
Despite completing probation and receiving a state pardon, the judge determined that the pardon did not negate the effects of the underlying felony conviction under the Smith Amendment. The applicant had been arrested in January 1980, charged with trafficking and conspiracy to traffic in cocaine, and subsequently pleaded nolo contendere to the conspiracy charge.
The denial was based on the applicant's felony conviction and sentence of more than one year, which directly invoked the Smith Amendment's mandatory bar. While several mitigating conditions were considered, the judge ultimately recommended further consideration for a waiver of the bar, but the 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 against holding a security clearance.
- The judge found that a state pardon does not negate the effects of the underlying conviction 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 aappliedThe Criminal Behavior Was Not Recent.
- MC bappliedThe Crime Was an Isolated Incident.
- MC fappliedThere Is Clear Evidence of Successful Rehabilitation.
- 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.
Key Rule Quoted
“Pardons do not vitiate the effect of the underlying conviction on a clearance application in a Smith Amendment case.”
Procedural Posture
- SOR issuedNov 15, 2002
- Answer filedDec 1, 2002First amended answer treated as response.
- Hearing heldMar 27, 2003Originally scheduled for March 10, 2003, but adjourned.
- Decision dateJun 30, 2003
Cite For
- Application of the Smith Amendment in Security Clearance Cases
- Impact of a Felony Conviction on Security Clearance Eligibility
- Consideration of Waivers for Mandatory Disqualifications Under the Smith Amendment