KEYWORD: Guideline J
DIGEST: The question of whether a work-release program counts as incarceration is mixed
question of fact and law.  The Board cannot assume that the many such programs functioning
concurrently in the United States necessarily impose the same restrictions on convicts.  Given the
limited record the Board cannot conclude that Department Counsel met their burden of proving
controverted facts.  Favorable decision affirmed.
CASENO: 04-00354.a1
DATE: 03/26/2007
DATE: March 26, 2007
In Re:
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SSN: -------
Applicant for Security Clearance
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ISCR Case No. 04-00354
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Robert E. Coacher, Esq., Department Counsel
FOR APPLICANT
Arvin Reingold, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 4, 2005, DOHA issued a statement of reasons advising Applicant of the basis
for that decision—security concerns raised under Guideline J (Criminal Conduct), of Department
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of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive).  Applicant requested a hearing.
On June 8, 2006, after the hearing, Chief Administrative Judge Robert Robinson Gales granted
Applicant’s request for a security clearance. Department Counsel timely appealed pursuant to the
Directive ¶¶ E3.1.28 and E3.1.30.
 Department Counsel raised the following issue on appeal: whether the Administrative
Judge’s decision was arbitrary, capricious and contrary to law for failing to hold that Applicant was
barred by the Smith Amendment (10 U.S.C. § 986) from hold a security clearance. 
The Chief Administrative Judge did not find that Applicant was barred by the Smith
Amendment from holding a security clearance because Applicant spent less than a year in jail and
a  state penitentiary.  Applicant spent additional time in a work-release program which the Judge did
not count as incarceration for purposes of Smith Act. Department Counsel challenges the Chief
Judge’s decision on that basis.  The Board notes that the Chief Administrative Judge highlighted the
question at the hearing and left the record open for additional material on the question.  Nonetheless,
there are only two exhibits in the record (a security clearance application and a statement of subject
prepared by Applicant) both of which were received at the hearing.  Under the Directive, Department
Counsel has the burden of proving controverted facts in DOHA proceedings.  The question of
whether work-release should be considered incarceration for purposes of the Smith Act is a mixed
question of fact and law.  The Board cannot assume that the many such programs functioning
concurrently in the Unites States necessarily impose the same restrictions on convicts. Given the
limited record evidence in this record, the Board cannot conclude that Department Counsel met their
burden regarding the pertinent controverted facts.  Thus, the Administrative Judge did not err in
granting Applicant a clearance. 
Order
The decision of the Administrative Judge granting Applicant a clearance is AFFIRMED.
Signed: Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Michael D. Hipple      
Michael D. Hipple
Administrative Judge
Member, Appeal Board
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Signed: Jean E. Smallin                
Jean E. Smallin
Administrative Judge
Member, Appeal Board