Smith Amendment Waivers

Do you want a security clearance, or have been told you are required to get one, but have been convicted of a crime, or incarcerated for more than one year? Then you need to be familiar with the Smith Amendment.

Smith Amendment rules prohibit anyone convicted of a crime and incarcerated for more than one year from obtaining a security clearance without a waiver.

The Smith Amendment was repealed on 28 Jan 08 and a new law was created. The new law went into effect on 1 Jan 08 and requires a revision of the Adjudicative Guidelines.

The questions on the SF86 do not reflect the wording contained in The Adjudicative Guidelines. A "yes" response to questions on the SF86 only alerts the reviewer and investigator to potential issues that may require more attention.

The tricky part is the wording, "under dishonorable conditions." The Defense Office of Hearings & Appeals has interpreted this as a dishonorable discharge for enlisted personnel and any dismissal for misconduct by officers.

It's still important to be aware of instant disqualifers. There are two conditions that absolutely result in clearance denial--current use of illegal drugs and being mentally incompetent.

Two conditions that require a waiver for special access authorizations (SCI, SAP, Restricted Data)--discharge from the military under "dishonorable conditions" and convicted of a crime and imprisonment for more than one year.

The tricky part is the wording, "under dishonorable conditions." The Defense Office of Hearings & Appeals has interpreted this as a dishonorable discharge for enlisted personnel and any dismissal for misconduct by officers.

Some individuals are interested in the evolution of a document. Congress modified the Smith Amendment on October 9, 2004. You can read about this on the following website, and also further below:

http://www.fas.org/sgp/eprint/smithamend3.pdf

On August 30, 2006, Under Secretary of Defense Memorandum, gave authority to the Director, Washington Headquarters Services (WHS); Director, Defense Intelligence Agency (DIA); Director, National Security Agency (NSA); Director, Defense Office of Hearings and Appeals (DOHA); and Secretaries of the Military Departments; or their respective designees, to grant waivers in "meritorious cases where mitigating factors exist that are consistent with the mitigating factors described in the Adjudicative Guidelines."

Even with modifications and a repeal of the Smith Amendment its good to be clear on which cases are more likely to receive favorable consideration with regard to the granting of a Smith Amendment waiver as shown below:

* Age at time of commission of offenses. Commission of the offenses while a teenager or early 20s, when the individual may be more likely to be considered as a "youthful offender" significantly mitigates the behavior more than for an older offender;
* Number and nature of offenses. A single offense or a limited number of offenses within a narrow period of time as opposed to a larger number of offenses over a more extended period of time.
* Amount of time that has passed since the commission of offenses. A substantial period of time must have elapsed since the behavior for the case to be considered "meritorious."
* A clean record since commission of offenses. There must be a clear demonstration of compliance with the "Five R's" of Reform, Regret, Responsibility, Rehabilitation and Remoteness of the behavior.
* Renewal of a clearance. Though not specified, it is not unreasonable to anticipate that an applicant who was granted a clearance before the enactment of the Smith Amendment, and therefore faces an "ex post facto" application of the prohibition on granting a clearance will have a more equitable position than a first time applicant for a clearance.
* Granting of a Pardon/Restoration of Rights. May enhance the case through a demonstration that the punishing jurisdiction has also recognized the applicants behavioral changes.
* Living an exemplary life. Doing more than simply having a job, paying taxes, raising a family and complying with the law, which is what everyone is expected to do, will increase the possibility of a waiver being granted.