In a recent Department of Energy security clearance administrative hearing, a DOE contractor defended his admission that he unlawfully used a controlled substance which was not prescribed to him. While there are many scenarios in which this could occur, the oft-overlooked circumstances here may sound familiar to many of our readers.

The individual in his testimony admitted that several months prior to his security clearance investigation, he underwent a root canal procedure. His dentist failed to prescribe him medication and the next evening, he experienced tremendous pain coming from the area of the root canal. He tried over the counter medications with very little relief of the discomfort. He opted out of going to the emergency room, which prompted his wife to offer him one of her lawfully prescribed medications, a Tylenol 3 (which contains hydrocodone, a controlled substance). His testimony was clear that he took the medicine solely to manage pain, and not to “get high”. The next day, the pain had subsided enough that he was able to manage it with over the counter medication. The individual’s wife testimony matched his, and she testified he was not a drug addict and she had not observed him using drugs, prescribed or otherwise for nothing but their intended purpose. After hearing the evidence, the Administrative Judge, Katie Quintana, made the following determination:

Misuse of a prescription medication is a condition that can raise a security concern and disqualify an individual from holding a security clearance. See Guideline H, PP 24-25. Such concerns can be mitigated by showing that: (a) the behavior was so infrequent or so long ago that it is unlikely to recur and does not cast doubt on an individual’s current reliability, trustworthiness, or judgment; or (b) an individual acknowledges his or her drug involvement, provides evidence of actions taken to overcome this problem, and has established pattern of abstinence, including dissociating from drug-using associations, avoiding the environment where he or she used drugs, and providing a signed statement of intent to abstain from all drug-involvement. Id. at P 26(a), (b).

In this situation, I conclude that the Individual’s use of the hydrocodone was an isolated incident brought about by a single, pain-induced lapse in judgment. I see nothing in the record that would indicate that the Individual regularly engages in substance misuse, illegal use of controlled substances, or is addicted to drugs. Although the Individual improperly used a medication that was not prescribed to him, he used it in a manner consistent with its intended purpose, did not abuse it, and properly disposed of it once realizing and acknowledging his mistake. The Individual submitted the negative results of a voluntary drug test, 3and he demonstrated great candor in volunteering his use of the medication during a routine security clearance investigation, without prompting. Ex. H; Tr. 17, 29. Further, he has committed to abstaining from “all drug involvement and substance misuse.” Ex. K. I cannot conclude that this one isolated impugns the Individual’s reliability or trustworthiness for the purposes of maintaining his security clearance…and that the DOE should restore access authorization at this time”

It must be pointed out, however, that the ruling only deals with the standing of the individual’s security clearance and does not exonerate him from specific agency rules or instructions on illegal use of drugs, if such rules so exist. For example, such an admission while serving in a military branch could trigger an entirely separate chain of disciplinary actions, to include discharge or separation from the service. The scenario that comes to mind is the use of stimulants prescribed to another individual, a reportedly common occurrence on many college campuses. Talking your way back into your security clearance is one thing; keeping yourself employed is entirely another.

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Joe Jabara, JD, is the Director, of the Hub, For Cyber Education and Awareness, Wichita State University. He also serves as an adjunct faculty at two other universities teaching Intelligence and Cyber Law. Prior to his current job, he served 30 years in the Air Force, Air Force Reserve, and Kansas Air National Guard. His last ten years were spent in command/leadership positions, the bulk of which were at the 184th Intelligence Wing as Vice Commander.