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How to Obtain or Maintain a Security Clearance Despite Prior Drug Use

Posted by Allison R. Weber, Esq.
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Under Guideline H, Drug Involvement, the government may have security concerns about past or current illegal drug use since this can raise questions as to your judgment, trustworthiness, reliability, and integrity. Those possessing a security clearance are required to be responsible and reliable when it comes to their duties, and this responsibility is not limited to official activity during business hours. It extends to all personal conduct occurring off-duty hours as well. The government runs a tight ship when it comes to drug usage since drugs can alter your state of mind thereby impacting your judgment, or alternatively, may serve as a basis for coercion.

What Can Get You In Trouble

While there are many different bases that can trigger Guideline H concerns, the most common is usage prior to obtaining a clearance—whether that is disclosed during the application process or whether it comes up years later after already receiving a clearance. For instance, this could occur when applying for a Top Secret Clearance, which includes a more extensive inquiry into your past and present conduct.

The key factors to whether this concern is significant enough to preclude you from obtaining a clearance or to cause your clearance to be revoked are:

  • When the usage occurred and the duration of abstinence since the last usage;
  • The frequency, duration, and context of use;
  • How the government became aware of the usage (proactive affirmative disclosure, disclosure in anticipation of being caught, failing a drug test, etc.);
  • Whether you voluntarily sought evaluation, counseling, or other treatment;
  • Whether you possessed a clearance at the time of your use, and
  • Whether you possess an intent to continue misusing any controlled or illegal substances.

The Impact on Your Clearance

So, does this mean if you’ve had any illegal involvement with drugs, you have no chance of obtaining or maintaining a security clearance? No, but you will have to mitigate the government’s concerns. This means proving that your previous drug usage will not impact the government’s ability to trust you, or that your current drug use was under such circumstances that it does not raise a concern (i.e., innocent ingestion).

Obviously, getting caught using drugs while possessing a clearance is the worst-case scenario, especially if you had an opportunity to self-report prior to getting caught. A close second, however, is the failure to disclose current or prior usage when asked, as this is clear evidence that the usage poses a risk that will be used to coerce or influence you to take actions contrary to our nation’s best interests. This highlights the government’s desire that you not hide your activities and instead are proactive and candid about any drug involvement you have had.

Marijuana Missteps for Clearance Holders

One common pitfall many clearance holders have fallen into recently is using marijuana, now that it is legal at the state level. While many states across the country have legalized medical and/or recreational marijuana usage, marijuana is still criminal and is classified as a Schedule 1 drug at the federal level. Many clearance holders are unaware of this distinction and engage in use that puts their clearance in jeopardy.

Even if you aren’t smoking, a trip to a dispensary or investing in marijuana stocks could unknowingly jeopardize your security clearance. While it is not outright prohibited to invest in marijuana related stocks (as there is no specific guidance by DCSA yet), it may raise some red flags since it is still associated with a Schedule 1 substance, which is illegal on the federal level. Even without guidance, it would technically be a “drug involvement”—which is why the guideline is drug involvement and substance misuse and not just drug use, to further expand the guideline’s reach. It would likely be frowned upon and could result in the loss of one’s clearance. Any doubt is ruled in favor of national security, so the best avenue would be to avoid marijuana stocks altogether.

Also, a trip to a dispensary can absolutely be grounds for reporting and could lead to a Statement of Reasons (SOR), as it is also considered drug involvement. Purchasing marijuana, regardless of whether it is legal in a specific state, is still against federal law. It would constitute possession of marijuana which would be one of the disqualifying conditions under Guideline H, so that would also be security violation that would need to be reported and could likely result in an SOR. The form of use (smoking v. edibles) is irrelevant as well. Any use is illegal.

A Real-World Guideline H Outcome

Let’s take a look at a Defense Office of Hearings and Appeals case involving Guideline H, to see how prior drug use can impact security clearance holders. While many of these cases don’t always end favorably, the applicant in this case was able to successfully mitigate drug involvement security concerns.

Case No. 20-03656

The applicant in this case is a 24-year-old Management Analyst who graduated in 2019 and began working with his current employer in 2020, where he learned he needed to apply for a security clearance. On his applications, he was candid about his past illegal drug use.

He used marijuana with varying frequency from 2014 to 2019—twice in high school and regularly in college. The applicant also used cocaine that belonged to others between 2016 and 2019, and shared that he purchased it once in 2018. He also used LSD twice on college camping trips. However, his drug use diminished as he completed his undergrad degree. He gave up drug use upon graduation to begin his professional career as a mature adult.

The applicant was forthcoming about his drug use and expressed intent not to resume drug use, because of his commitment to his career. He also met with a licensed substance abuse treatment professional and counselor who determined he does not have a substance abuse disorder. The counselor confirmed his intent and ability to refrain from drug use.

The judge found that given the applicant’s age and circumstances, his past drug use could be described as youthful indiscretion. The applicant provided believable reasons for quitting his drug use, does not spend time with drug-using acquaintances, and shared intent not to go back to drug use now that he has committed himself to a professional career. The judge found that while the applicant has only been drug-free for a year-and-a-half, that is a significant time period for one his age, and granted eligibility for a security clearance.1

Protect Your Cleared Career

Ultimately, a person should look at the federal laws in relation to marijuana and the SEAD 4 guidance against any drug involvement. You don’t have to use illegal drugs to have your clearance revoked under Guideline H, simple involvement is enough to trigger the disqualifying conditions under this guideline. Best rule of thumb is to avoid any activities that can be perceived as involving illegal drugs.

There are many ways to show the government that you can be trusted and that your previous involvement with drugs is not indicative of your present overall character. Ultimately, knowing how to advocate for yourself should the government question your drug involvement can be the difference between maintaining your security clearance and losing your career. Considering the stakes, it is important to remain cognizant of your involvement with any sort of drug, legal or not, as it could end up significantly damaging your career.

Find more articles about safeguarding your security clearance here.

As a Senior Associate at Tully Rinckey PLLC, Allison focuses her practice on all aspects of military and national security law. Allison provides security clearance representation on matters ranging from assisting clients in proactively disclosing information to avoid issues, completing applications, responding to Statements of Reason, and attending revocation hearings. She can be reached at [email protected] or at (716) 439-4700.

1https://doha.ogc.osd.mil/Industrial-Security-Program/Industrial-Security-Clearance-Decisions/ISCR-Hearing-Decisions/2021-ISCR-Hearing-Decisions/FileId/156820/
This entry was posted on Monday, November 08, 2021 9:34 am

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