Defense Security Service Notice on Implementation of the Smith Amendment
31 July 2001
The following summarizes the Department of Defense's (DoD) implementation of restrictions on the granting or renewal of security clearances as mandated by the provisions of the Floyd D. Spence National Defense Authorization Act for fiscal year 2001. Detailed direction, implementation guidance and revisions to adjudicative guidelines are stated in the memorandum issued on June 7, 2001 by the Deputy Secretary of Defense. That memorandum can be found at the Defense Security Service web site at http://www.dss.mil/isec/smith_amendment.htm.
Section 1071 (also referred to as the "Smith Amendment") of the Act prohibits DoD from granting or renewing a security clearance for an applicant under the circumstances identified below. These provisions apply to DoD military, civilian and industrial personnel. They law does not apply to clearances issued by any other agency.
Any person covered by the statute is disqualified from being granted a security clearance by the Department of Defense if the person:(1) Has been convicted in any court of the United States (federal, military or state) of a crime and sentenced for a term exceeding one year (it is the length of the sentence imposed, and not the actual time served that is critical);
(2) Is an unlawful user of, or is addicted to, a controlled substance, as defined at 21 USC §802.
(3) Is mentally incompetent, as determined by a mental health professional approved by DoD or
(4) Has been discharged or dismissed from the Armed Forces under dishonorable conditions.
This prohibition applies to all pending security clearance applications in which a final decision has not been issued as of June 7, 2001. This policy does not apply to conversions and reinstatements of current security clearances. However, an applicant with an existing clearance for whom a periodic reinvestigation (PR) or other investigation reveals an issue involving one or more of the four disqualifying statutory provisions cited above will have his or her clearance revoked, even if the issue had previously been favorably resolved.
The statute does permit a waiver to the prohibitions stated in provisions (1) and (4) in meritorious cases. For DoD industrial personnel clearances, the official designated to consider waiver requests is the Secretary of Defense. The Defense Office of Hearings and Appeals (DOHA), when issuing a Statement of Reasons (SOR) denying or revoking a security clearance in a case involving provisions (1) or (4), will inform the applicant of the waiver provision, and provide guidance for submitting a request for waiver should the applicant wish to do so.
Because of the need to develop a complete record upon which to evaluate whether a case is covered by provisions (2) or (3) and whether a waiver of provisions (1) or (4) of the statutory provisions is meritorious, all cases potentially covered by the statute will be fully investigated and adjudicated in accordance with current Executive Order and DoD Directive and Regulatory guidance, including applicable due process procedures.