SMITH AMENDMENT WAIVER REPORT ISSUED
Disclaimer: The following articles are provided for information purposes only and are not to be construed as actual legal advice nor take the place of legal counsel.
Under Secretary of Defense Memorandum of August 30, 2006 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." This grant of authority was the long-awaited opening of the log-jam where provisions had been legislatively approved and enacted for consideration of waivers in cases where a Dishonorable Discharge was issued or where an applicant had actually served a prison sentence of a year or longer in jail.
Though it is still very early in the process, there are a few factors that appear clear regarding what types of cases are more likely to receive favorable consideration with regard to the granting of a Smith Amendment waiver:
- 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.