Does Another Toke of Marijuana Smoke for a Top Secret Clearance Holder Spell Revocation?

Until or if marijuana becomes federally legal, we are going to continue to see security clearance denials or revocations for chronic users that do not intend to change their ways for a national security career, or clearance holders that are dishonest about their use in the past.

This ClearanceJobs blog subscriber argues personal oversight issues when it came to prior marijuana usage and going through his Top Secret clearance renewal process – as opposed to a pattern of dishonesty. Unfortunately, ignorance of the law or policy isn’t an excuse for violating it:

“I am a federal employee in international affairs who first received a TS clearance in 2013. I reported on my SF-86 in 2012 that when I was a minor, I smoked marijuana maybe 4 times, got sick once, so my parents took me to the hospital, and I was later sent to a couple of group counseling sessions (hence the reason I was required to report it). In my interview, I reported that I smoked in high school and then never again. I signed an intent not to use illegal drugs in the future as part of that interview. No other issues at all regarding my SF-86 and interview, and I sailed through the process and began work. The interviewer told me I was one of the easiest cases she had ever done because my history was so clean. Flash forward to 2018 for my clearance renewal, I filled out my SF-86, and in the illegal drug use section I answered “no” all the way down, including the “have you EVER received counseling for illegal drug use” question. I did not think to report the incident as a minor since I already did in my prior SF-86, and was also in a hurry filling it out, and did not notice the “EVER” instead of “last 7 years”. Subsequent to submitting my SF-86, I went on home leave, and my wife and I visited Colorado to do some cycling and hiking. We discovered that marijuana was legal there and saw a dispensary and visited out of curiosity. One thing led to another, and we purchased and shared a single joint. I recall no guidance from my agency on marijuana use in legal states, and my judgement was also quite depleted after 3 years in a difficult country. About 6 months later, at my next post, I had my in-person interview and was asked about the use as a minor and why I did not list it in this recent SF-86. I was then asked if I had any further marijuana use to report. I reported the single use on home leave in CO. I was asked why I marked “no” regarding illegal use while holding a clearance, and I said the use occurred after I submitted the SF-86, and I was unaware that use in a legalized state would be an issue. That was that, no other issues. A year later, I received a SOR implicating Guidelines H and E, stating that I lacked candor on my recent SF-86 by not reporting the use as a minor, lacked candor by not disclosing on my SF-86 that I used while holding a clearance, and also for violating the statement of intent to not use illegal drugs. I retained a reputable security clearance attorney who responded with robust whole-person evidence (numerous high-level awards, promotions, positive annual reviews, a negative drug test I took upon receiving the SOR, five glowing character references from senior agency officials attesting to my integrity and fitness to hold a clearance and that this one mistake was not indicative of a pattern of poor judgement, triathlon and running race awards, volunteer work, and a statement of intent not to do it again with automatic revocation for any future violation). We submitted the response, and my attorney said it was a strong case, and this situation was common and generally not grounds for revocation given my mitigating factors and single use. Another year goes by, and I received a letter of revocation with no explanation or analysis just that I was revoked and could appeal. We are now appealing to the board on substance and due process violations.”

EARLY MARIJUANA USE

Illegal drug involvement can be mitigated if the applicant is no longer involved with drugs, and it is unlikely won’t be involved with them in the future. If this subscriber used 4-5 times in high school, was honest on his SF-86, and signed an intent not to use, and didn’t use, that would be the end of it and his prior drug use would have been mitigated.

HONESTY ON SF-86 AND OTHER GOVERNMENT FORMS

Unfortunately, this wasn’t the end of it for this clearance holder. Honesty is always the best policy when filling out these forms and completing them includes reading every question thoughtfully and carefully. So, the “I didn’t realize the question said, ‘have you EVER’ and thought it said ‘within the last seven years’” defense doesn’t mitigate being an issue used for clearance denial.

Secondly, this subscriber signed an intent not to use while holding a security clearance. Even if he was unaware of it or didn’t realize it, the government will still use that in their case. Until or if the federal government legalizes marijuana use, when you obtain a security clearance, you’re expected to abide by federal law.

APPEALING TO DOHA

A number of applicants who receive a SOR discontinue the process by not responding and the clearance is revoked. An applicant can choose to rebut the SOR. Decisions on cases can be based on review of the written record or on a hearing.

Either an applicant or a DOHA attorney can request these hearings and when stating your case, the judge looks at Adjudicative guidelines that are used to decide if an individual is eligible for a clearance. The government uses 13 criteria to determine if you should obtain access to classified information. Although these judgments are made based on the ‘whole person concept,’ the two applicable adjudicative criteria for this case are Guidelines E and H. Guideline E, Personal Conduct, is most frequently used against applicants who have falsified information on their SF-86. Guideline H, or Drug Involvement, is pretty cut and dry for the clearance holder (don’t do it) but may be a bigger disqualifier as more and more states legalize marijuana with it still being federally illegal.

“My question is, as an adjudicator, how would you view this case? In retrospect, it was clearly a mistake on my part, but one I have been fully open about.”

At this stage in the security clearance denial and revocation, the applicant is counting on the court to uncover a misapplication of the adjudicative criteria. The lawyer will not be able to admit new evidence, but can argue that the government’s application of the whole person concept should indicate a favorable determination. I’ll be interested to see the end result, but you can view past cases that resulted in denial here.

Much about the clearance process resembles the Pirate’s Code: “more what you’d call guidelines than actual rules.” This case-by-case system is meant to consider the whole person, increase process security, and allow the lowest-risk/highest-need candidates to complete the process. This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.