The contradiction between federal laws making marijuana use illegal and the growing swath of states legalizing the drug continues to trip up those applying for positions with the federal government. The Office of the Director of National Intelligence has sought to clarify policies on marijuana use, but continues to emphasize how drug use while holding a security clearance remains a major fact against applicants. Ignorance of the laws, even drug laws, is rarely a workable excuse.
True or False: If you use drugs while holding a clearance there is no way you will be able to keep your eligibility.
We have cautioned here – despite changing views toward marijuana use, the ‘accidental’ drug user rarely gets a pass when it comes to a security clearance determination. That particularly holds true for individuals who are found to be using drugs while actively holding a security clearance. The Office of the Director of National Intelligence issued clarifying guidance around marijuna use, and specifically indicating that period of abstinence should begin at the time the SF-86 was submitted, and that illegal marijuana use alone shouldn’t be determinative in a clearance adjudication, but should be evaluated based on the whole person concept.
That language was helpful for the prior drug user. But it didn’t leave a lot of hope for the accidental clearance holder who partook while holding a security clearance. A recent case that appeared before the Defense Office of Hearings and Appeals, however, does. The individual in question was a 30-year old budget analyst with the Department of Defense. He was granted a Secret clearance in 2017, but used marijuana three times in the 2019-2020 timeframe, while holding the Secret clearance. The applicant then filled out a subsequent SF-86 for a Top Secret clearance and realized his marijuana use was an issue when he listed it on the form. He noted that his infrequent use had been based on the ‘legal’ nature of the drug in the state he was in and his ignorance of the federal law being an issue for his security clearance.
The individual refrained from drugs and hasn’t used since submitting his second SF-86 in June of 2020. The individual’s application for a Top Secret clearance was initially denied based on drug involvement and personal conduct issues. But in the first instance of an individual who admitted to using drugs while holding a security clearance, the appeal court overturned the initial ruling and granted access to classified information based on the ‘minor’ marijuana use and in light of the whole person concept. The applicant had several factors operating in his favor:
- The drug use was infrequent.
- The drug use took place in a state where marijuana use was legal under state law.
- The applicant quickly disclosed his issue and rectified his error.
I think the biggest factor in the applicant’s favor was his quick disclosure of the infrequent use on an SF-86. I feel relatively confident that had the applicant failed to list the drug use on his Top Secret application and it was later disclosed, he would have had personal conduct issues that couldn’t have been overcome. Overall, the relatively infrequent nature of the use easily placed the applicant in a category where he was able to demonstrate he was unlikely to continue to use or be around drugs – a key mitigating factor.
False: Drug Use While Holding a Clearance Can Be Mitigated.
Don’t expect lightning to strike twice – drug use while holding a clearance is tough to overcome. But if you can demonstrate that you truly were ignorant of the federal law, and not willfully using, this case shows you do have a path to a successful clearance determination. The security clearance process is truly all about ascertaining risk based on the whole person concept. Don’t let one slip up keep you from pursuing a cleared career.
