Summary
A 43-year-old defense contractor was denied a security clearance under Guideline J (Criminal Conduct) due to a 1981 burglary conviction. The applicant had been found guilty of burglary and sentenced to one to ten years in prison. This conviction raised disqualifying conditions J.a, J.b, and J.c.
Despite the applicant's demonstration of significant rehabilitation and stable employment over the past two decades, and the application of mitigating conditions J.a, J.c, J.d, and J.f, the clearance was denied. The primary reason for denial was the mandatory nature of the Smith Amendment (10 U.S.C. Section 986).
The Smith Amendment disqualifies individuals convicted of a crime and sentenced to imprisonment for a term exceeding one year. This statutory provision does not allow for mitigation based on rehabilitation or other circumstances unless a waiver is granted by the Secretary of Defense. In this case, the applicant was not eligible for such a waiver, leading to the denial of the security clearance.
Why the Applicant Was Denied
- The applicant was convicted of a crime and sentenced to imprisonment for a term exceeding one year, which disqualifies her under the Smith Amendment.
- The statutory provision does not allow for mitigation based on rehabilitation or other circumstances unless a waiver is granted by the Secretary of Defense.
Conditions Referenced
- J.araisedAllegations or Admissions of Criminal Conduct
- J.braisedA Single Serious Crime or Multiple Lesser Offenses
- J.craisedConviction in a Federal or a State Court of a Crime and Sentenced to Imprisonment for a Term Exceeding One Year
- J.aappliedThe Criminal Behavior Was Not Recent
- J.cappliedThe Person Was Pressured or Coerced Into Committing the Act and Those Pressures Are No Longer Present in That Person's Life
- J.dappliedThe Factors Leading to the Violation Are Not Likely to Recur
- J.fappliedThere Is Clear Evidence of Successful Rehabilitation
Key Rule Quoted
“The responsibility for producing evidence initially falls on the Government to demonstrate that it is not clearly consistent with the national interest to grant or continue Applicant's access to classified information.”
Procedural Posture
- SOR issuedJul 31, 2003
- Answer filedAug 28, 2003notarized
- Hearing heldDec 9, 2003at a location near where Applicant works and lives
- Decision dateMar 3, 2004
Cite For
- Application of the Smith Amendment (10 U.S.C. Section 986) Regarding Criminal Conduct Disqualifications
- Consideration of Rehabilitation in the Context of Statutory Disqualifications
- The Burden of Proof on the Government in Security Clearance Cases.