ISCR Case 02-11922.h1

Case Headnote

ISCR Case No. 02-11922.h1

deniedOct 31, 2003· Hon. Roger C. Wesley· hearing

Summary

A 38-year-old maintenance technician for a defense contractor was denied a security clearance under Guideline J (Criminal Conduct). The denial stemmed primarily from a 1987 felony burglary conviction, which resulted in a sentence exceeding one year and triggered the Smith Amendment's mandatory disqualification.

The Statement of Reasons detailed several criminal allegations, including a February 1986 arrest for grand theft auto (charge rejected), the January 1987 felony burglary charge to which the applicant pleaded guilty, and a July 1989 charge for possession of marijuana, resulting in probation. Additionally, the applicant was arrested in March 1991 on an outstanding warrant for conspiracy to deliver cocaine, held for 91 days, and released when the charging state failed to provide further information.

Despite demonstrating rehabilitation and receiving a pardon for the 1987 conviction, the judge found these mitigating factors insufficient to warrant a waiver under the Smith Amendment. Consequently, the security clearance was denied.

Why the Applicant Was Denied

Applicant's felony burglary conviction from 1987 resulted in a sentence exceeding one year, triggering the Smith Amendment's mandatory disqualification.
The judge determined that the evidence of rehabilitation was not sufficient to warrant a waiver recommendation under the Smith Amendment.

Conditions Referenced

Disqualifying

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.

Mitigating

MC aappliedThe Criminal Behavior Was Not Recent.
MC frejectedThere Is Clear Evidence of Successful Rehabilitation.Although there was evidence of rehabilitation, it was not sufficient to overcome the mandatory disqualification under the Smith Amendment.
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

“Congress has not directed the DoD to recognize or give effect to a state pardon in connection with the application of a state statute authorizing pardons.”
— ISCR Case No. 01-00407 (September 18, 2002)

Procedural Posture

SOR issuedApr 22, 2003
Answer filedApr 22, 2003
Hearing heldSep 22, 2003
Decision dateOct 31, 2003

Cite For

Application of the Smith Amendment in Security Clearance Cases
Impact of Felony Convictions on Security Clearance Eligibility
Consideration of Rehabilitation in the Context of Mandatory Disqualifications Under Federal Law.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	arrested in February 1986 and charged with grand theft auto (charge subsequently rejected by district attorney)	For Applicant	Theft or Larceny	Arrested Not Charged	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	—
1.b	arrested in January 1987 and charged with burglary, 2nd degree (a felony), to which he pleaded guilty and was sentenced to 5 years with the state's department of corrections	Against Applicant	Trespassing or Burglary	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	(c) no reliable evidence the individual committed the offense (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—
1.c	charged in July 1989 with possession of controlled substance (marijuana), to which he pleaded guilty and was awarded probation	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	—
1.d	arrested in March 1991 on an outstanding warrant in another state for conspiracy to deliver cocaine (a class II felony), for which he was held in jail for 91 days and released upon failure of the charging state to provide additional information	For Applicant	Drug Related Criminal Charge	Arrested Not Charged	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	—
1.e	specific text not stated in this decision	Against Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

arrested in February 1986 and charged with grand theft auto (charge subsequently rejected by district attorney)

For Applicant

Theft or Larceny

Arrested Not Charged

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

—

1.b

arrested in January 1987 and charged with burglary, 2nd degree (a felony), to which he pleaded guilty and was sentenced to 5 years with the state's department of corrections

Against Applicant

Trespassing or Burglary

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(c) currently on parole or probation

(c) no reliable evidence the individual committed the offense

(d) evidence of successful rehabilitation (time, restitution, employment, etc.)

—

1.c

charged in July 1989 with possession of controlled substance (marijuana), to which he pleaded guilty and was awarded probation

For Applicant

Drug Related Criminal Charge

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

—

1.d

arrested in March 1991 on an outstanding warrant in another state for conspiracy to deliver cocaine (a class II felony), for which he was held in jail for 91 days and released upon failure of the charging state to provide additional information

For Applicant

Drug Related Criminal Charge

Arrested Not Charged

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(b) evidence of criminal conduct, regardless of charge or conviction

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

—

1.e

specific text not stated in this decision

Against Applicant

Unspecified Criminal Conduct

—

Unknown

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES