Security clearance denials for past marijuana use typically fall into one of two categories. The first category are those cases involving past use while not holding a security clearance. These cases are generally straightforward and winnable on appeal, provided there are no aggravating circumstances and sufficient time has elapsed since the last use.

The second category of cases are those in which the individual used marijuana while holding a security clearance. These cases are significantly more difficult to win, even if the use occurred years prior. The main issue is almost always the violation of the government’s rules (and the concern it will happen again) as opposed to the marijuana use itself.

New Strain of Marijuana Cases in DoD CAF

Recently, however, a third strain of cases has been emerging from the Department of Defense Consolidated Adjudications Facility (DoD CAF). In these cases, adjudicators have hammered applicants who used marijuana after being granted a security clearance, but while no longer having access or eligibility, under the theory that the applicants were then on notice to the fact that marijuana use is still federally illegal because of their security briefing years prior.

This new hardline stance, which boils down to “you should have known better”, is a curious approach at a time when both societal norms and the Biden Administration seem to be moving in the opposite direction.

Equally puzzling is the CAF’s decided lack of consistency on the issue. It seems that only a small handful of adjudicators have adopted this more antagonistic approach, whereas many others are still operating on the old understandings outlined above.

Whatever approach the CAF decides to take on past marijuana use, it should be consistent and transparent. Opaque policies, or those that are applied inconsistently, threaten to undermine confidence in the institution and create perceptions of unfair treatment.

Clear Lesson for Security Clearance Holders

In the meantime, the lesson for security clearance applicants is clear: use marijuana after previously holding a security clearance at your own risk. If that lesson is being imparted too late – i.e., if you’ve already used marijuana after previously holding a clearance – consider taking a few proactive steps to improve your odds before reapplying for a clearance.

Proactive steps that will be viewed favorably by security officials include moving away from or otherwise separating yourself from the people and places involved in the drug use; putting a minimum of 12 months (ideally more) between the last use and your reapplication date; and preferably being able to demonstrate some healthy lifestyle changes that are arguably incompatible with marijuana use – for example, starting a new exercise regimen.

Additionally, applicants should be willing to sign a statement of intent committing to complete abstinence from future use of marijuana or any other illegal drugs, and may also wish to consider a hair strand drug test as a means of conclusively demonstrating no recent use.

 

This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied.  Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation. 

 

Related News

Attorney Sean M. Bigley represents clients worldwide in security clearance denials, revocations, and the security clearance application process. He is a former investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management). For more information, please visit www.bigleylaw.com. Readers will also find a low-cost, self-help option for obtaining copies of their security clearance background investigations and DISS/Scattered Castles records at www.bigleylaw.com/security-clearance-investigation-records.

<