Marijuana is not a new issue to applicants seeking a security clearance. However, the sentiment has changed in recent years in several states which could cause, or could have caused, more security clearance candidates to engage in the use of marijuana. As of the writing of this article, over six states have legalized marijuana use, and several others have “decriminalized” or allowed for medicinal use of marijuana. There are some states still considering legalization and decriminalization as well.

Impacts of Federal Law on Clearance Decisions

The major problem for an applicant seeking a security clearance is that, regardless of state laws, marijuana is still illegal at the federal level. Use, possession, and transportation of marijuana, as well as association with marijuana users, and several other factors can potentially disqualify applicants for a security clearance.

The issue is widespread amongst candidates seeking a security clearance. The most common question asked by our clients who have engaged in the use of marijuana, is how to address their prior involvement with marijuana when applying for a security clearance. The answer is not so simple and there are several factors taken into consideration when the government is adjudicating applicants for a security clearance that will affect the applicant’s eligibility. However, there are certain activities individuals can engage in to give them a better chance of success when applying for a security clearance, which are indicated below.

Check Out the National Security Adjudicative Guidelines

Let’s start with Security Executive Agent Directive 4 (SEAD 4), the National Security Adjudicative Guidelines. As stated in Section E.1., “The National Security Adjudicative Guidelines in Appendix A shall be used by all authorized adjudicative agencies when rendering a determination for initial or continued eligibility for access to classified information or initial or continued eligibility to hold a sensitive position”.

Guideline H: Drug Involvement and Substance Misuse

In review of Appendix A, we find Guideline H: Drug Involvement and Substance Misuse, which is explained through paragraphs 24, 25, and 26. Paragraph 26 is where we will concentrate, and it states,

“Conditions that could mitigate security concerns include:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to:

(1) disassociation from drug-using associates and contacts;

(2) changing or avoiding the environment where drugs were used; and

(3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.”

SEAD 4, Appendix A, paragraph 26 has provided a guide to mitigating marijuana issues. In addition to reviewing that Directive, here are some actions I sometimes encourage my clients to take:

Establish a timeline of use including frequency

This is helpful when filling out the SF-86/eQIP (“Application”). It can be detrimental to your application if you are not prepared to explain the full extent of your prior usage. Individuals who recall additional instances or timeframes of drug usage after filling out the application can be placed in a difficult position if the government were to allege that they falsified information on their application because they forgot to include the full extent of their prior drug involvement. Unfortunately, it has been my experience that individuals placed in this position have a difficult time proving they forgot this information at the time they filled out the application. However, it is possible.

Engage in drug education

Find a local, in-person drug education course and complete it. This can also be online, but it may be looked at in a more positive light if done in person. Complete the course and obtain a certificate of completion. Make sure to include the fact that you completed the course in your application and be prepared to present a completion certificate to the investigator or to the government.

Obtain a drug evaluation from a qualified professional

Obtaining an evaluation does not insinuate you have a drug problem. However, if you have abstained from using marijuana for any legitimate period, a qualified professional evaluation bolstering your abstinence, and any diagnosis or prognosis in your favor is positive for your application. If you can obtain this evidence prior to the submission of your application, you can reference the positive evaluation in the application similar to the drug education.

Note: It is possible your evaluation could yield unwanted results. In that case, contact an attorney immediately before proceeding.

Engage in drug testing

It may be wise to engage in drug testing (e.g., urinalysis) to prove you are no longer using marijuana. Utilizing this strategy may be less valuable to some individuals, which is dependent on several factors. Providing the government several months of urinalysis can support a conclusion of sobriety. Given the expense of testing, it would be wise to consult an attorney before undergoing testing to see if it will help your case.

Divulge use to others

Pressure, coercion, and duress are serious concerns for the government when adjudicating a security clearance. Telling your family, friends, and work colleagues can be beneficial in attempting to mitigate marijuana use. Moreover, telling others about your prior mistakes and stating your intentions to no longer engage in this activity in the future can go a long way towards your credibility if those individuals are interviewed and share that information with investigators.

Note: informing friends, family, and especially colleagues comes with risks of negative consequences. Please weigh those potential consequences before divulging this information and be sure you are comfortable taking those risks.

Establish a good reason for Remaining Abstinent

The government has stated that “I want a security clearance” is not a good reason to have stopped using illegal drugs. The Appeal Board for the Defense Office of Hearings and Appeals has stated, “Without question, a security clearance decision is not an effort to compel an applicant to refrain from the use of illegal drugs. There are other laws directed toward that end.” ISCR Case No. 16-03460.a1 (App. Bd. 2018). The government has recognized and takes the position that an applicant’s reasoning to not to use drugs must be compelled by something other, or more, than their desire to obtain a security clearance. Therefore, you should establish a credible purpose to no longer use marijuana in the future. Be sure this purpose is accurate and true, otherwise you may be making a false statement. If you can not come up with a good reason to stop using drugs, perhaps a security clearance is not for you.

Creating a Statement of Intent

This is referenced in SEAD 4, Appendix A, paragraph 26, above, however it is worth referencing here again. A statement of intent is essentially a promise from you to the government that you will not engage in use of illegal drugs in the future. Including this in your application is recommended if it is true.

When in Doubt, Contact an Attorney

Engaging in these suggestions does not guarantee you will obtain a security clearance, but it can assist you in the endeavor. If you have additional questions or concerns, you should contact an attorney who works in the Security Clearance related field.

 

DISCLAIMER: The foregoing are mere suggestions. There is no guarantee any adjudicating authority will find the information valuable. Engaging in any of these activities in no way guarantees you will obtain a security clearance or that you will mitigate any prior drug use.

The information in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in this article without seeking legal or other professional advice.

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Troy Nussbaum is an attorney licensed in Maryland and Washington, D.C. Mr. Nussbaum manages the law firm of Henault & Sysko, LLC in Anne Arundel County, Maryland. Mr. Nussbaum practices Nationwide in the areas of Security Clearance Law, Federal Suitability & Fitness Law, Federal Employment Disciplinary Law, and Debarment from Federal Contracting. Mr. Nussbaum attended the University of Baltimore School of Law and West Virginia University. Mr. Nussbaum is a member of the Security Clearance Lawyers Associations (SCLA), the Maryland State Bar Association (MSBA), and the Anne Arundel Bar Association (AABA).
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