Many employees and contractors of the United States federal government, military personnel, and government officials, who require access to classified information in the course of performing their duties, are required to obtain and maintain a security clearance. However, many who apply for a security clearance can be denied for a multitude of reasons, including drug involvement. Likewise, many who currently maintain a security clearance can have it revoked for the same reason.

In this article we will discuss one of the most common reasons for the rejection, or revocation, of a security clearance, as well as the facts you need to understand Guideline H: Drug Involvement.

WHAT IS GUIDELINE H?

When discussing the adjudicative guidelines for evaluating security clearances, Security Executive Agent Directive (SEAD) 4 outlines the concerns surrounding Guideline H:

“Improper or illegal involvement with drugs raises questions regarding an individual’s willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information.”

Simply put, the government is concerned that applicants for or holders of a security clearance, who are involved in the improper or illegal consumption of drugs, may fail to safeguard and protect national security information if they are under the influence of said drugs. Additionally, an individual involved in the improper or illegal consumption of drugs may be more easily subject to coercion, exploitation, or manipulation as a result of their dependence on drugs.

WHAT IS THE IMPROPER OR ILLEGAL INVOLVEMENT WITH DRUGS?

SEAD 4 provides a definition:

“Drugs are defined as mood and behavior altering substances, and include: Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), inhalants and other similar substances. Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.”

So, per the definition, any consumption of a drug prohibited by law would constitute an illegal involvement with drugs. Likewise, although a drug may have been prescribed by a physician, any use that deviates from the prescription could trigger a violation of Guideline H.

Over the past several years there has been a major push to legalize marijuana use. And although several states have legalized use of the drug, it remains illegal at the federal level. So keep in mind: although your state may legalize certain drugs, your involvement with those drugs could still trigger a violation of Guideline H, resulting in either the denial or revocation of a security clearance. The use of prescription marijuana is federally illegal.

SECURITY CONCERNS TO BE AWARE OF UNDER GUIDELINE H

There are many different situations that could flag a clearance application for security concerns and may even disqualify the application, or lead to a revocation of a current security clearance. According to the SEAD-4, these conditions include:

• any drug abuse (as described above);
• illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution;
• diagnosis by a credentialed medical professional (e.g., physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence;
• evaluation of drug abuse or drug dependence by a licensed clinical social worker who is a staff member of a recognized drug treatment program; or
• failure to successfully complete a drug treatment program prescribed by a credentialed medical professional. Recent drug involvement, especially following the granting of a security clearance, or an expressed intent not to discontinue use, will almost invariably result in an unfavorable determination.

HOW TO POTENTIALLY MITIGATE DRUG INVOLVEMENT CONCERNS?

Although you are required to disclose any and all past drug involvement on Standard Form 86 (SF86), the Questionnaire for National Security Positions, there are a variety of mitigating factors that may be considered. These mitigating conditions include:

• the drug involvement was not recent;
• the drug involvement was an isolated or aberration event;
• a demonstrated intent not to abuse any drugs in the future; or
• satisfactory completion of a prescribed drug treatment program, including rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a credentialed medical professional.

Recent cases underscore that there remains the expectation within the defense and national security communities that cleared workers will have decidedly left their pasts behind them and refrain from any illegal or improper behavior.

In one particular case, an applicant for a security clearance was charged with a violation of Guideline H for his involvement with marijuana. The applicant believed his conduct was not illegal because the state legalized the use of marijuana. As a result, the applicant disclosed the marijuana use on several security clearance applications. In the opinion, the judge found that once the applicant learned marijuana use was illegal under federal law, he stopped using marijuana. Additionally, the drug use was over three years old and the applicant was forthcoming of the drug use. As a result, the applicant mitigated Guideline H concerns.

In another similar case, an applicant admitted to experimenting with marijuana while she was in college and graduate school. During her background interview, she stated she regretted using marijuana and did not intend to use marijuana or any other illegal drug in the future. The applicant also signed a statement of intent to abstain from all illegal drug use with the acknowledgement that any future involvement with illegal drugs would be grounds for revocation of her security clearance. She fully disclosed the drug use on her SF86 and during her background investigation. Based on this, the judge mitigated the Guideline H concerns.

The takeaway? Do not become involved with illegal drugs even if they are legalized at the state level; if you have experimented with or used illegal drugs in the past, fully disclose it on your SF86 and background interviews; and state your intention to fully abstain from all future illegal drug use.

WHAT DO I DO IF MY CLEARANCE IS DENIED OR REVOKED?

If you are issued notification of intent to deny or revoke your clearance under Guideline H, Drug Involvement, it is still possible to obtain or keep your clearance with the help of an experienced, knowledgeable security clearance lawyer. Applicants should not attempt to resolve these concerns without the assistance of an experienced security clearance attorney. The security clearance adjudication process is heavily empirical, and you bear the burden of proof in clearing the security concern.

Tully Rinckey attorneys understand that issues involving security clearances can be challenging, and they will handle your matter with the attention it deserves. If you have additional questions about rejection, or revocation of a security clearance, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation or schedule a consultation online.

Lachlan McKinion is an Associate in Tully Rinckey’s Washington, D.C., office, where he focuses on national security and security clearance law. Lachlan’s practice includes appellate litigation before the Merit Systems Protection Board, guiding Intelligence Community and Defense clients through the security adjudication process, and representing whistleblowers before the Office of Special Counsel and various Intelligence and Defense Inspectors General.