By John V. Berry, Esq., www.berrylegal.com
One of the more common issues that arise in the context of security clearance investigations for federal employees is the issue of illegal drug usage and/or inappropriate prescription drug usage for federal employees. This issue is regulated by Adjudicative Guideline H for those federal employees holding or seeking a security clearance. This article discusses the issues that many individuals face with respect to drug usage and their security clearance.
Illegal drug use and abuse can be a major factor in maintaining or obtaining a security clearance. Security concerns regarding this issue arise under Adjudicative Guideline H, Drug Involvement and Substance Misuse of Security Executive Agency Directive (SEAD) 4. Adjudicative Guideline H is the section of the Adjudicative Guidelines which involves a federal employee’s use of illegal drugs or misuse of otherwise legal prescription drugs. Guideline H also evaluates the use of drugs by an applicant or clearance holder and its impact on an individual’s ability to obtain or maintain a security clearance.
Guideline H Rules for Federal Employee Clearance Applicants or Holders
Guideline H, Drug Usage, provides the following concerns for clearance holders and illegal drug use or abuse of prescriptions:
The Concern. The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.
Guideline H issues usually come into play when a federal employee has engaged in the use of illegal drugs or misused prescription drugs. The most common way in which this issue arises is when a federal employee is arrested, completes a new SF-86 (eQIP), or self-reports the drug use. If recent usage is involved, these types of issues tend to require more investigation prior to the issuance of a security clearance or may require a full clearance review. The clear concern for federal agencies that evaluate security clearances is that illegal drug use can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information.
Security Concerns Raised by Drug Usage
When issues arise involving illegal drug use or misuse of prescription drugs for federal employees, in the scope of a security clearance investigation or review, it is very important to take them seriously and to obtain legal representation experienced with these types of issues in order to minimize the potential damage to a security clearance. The Government, in addition to an overall evaluation of an individual who has admitted drug usage concerns, considers a number of mitigating factors in these cases. Keep in mind that most cases these days involve the use of marijuana in states where the use is legal, but where the federal government still considers marijuana use illegal by federal employees.
The mitigating factors for drug use, under Paragraph 26 of SEAD 4, 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.
Examples of Situations With Potential Security Clearance Issues for Federal Employees
Example A: Security clearance holder uses marijuana for the first time because his/her state legalized marijuana and he/she decided to experiment.
Example B: Security clearance holder borrows their daughter’s ADHD medication without a prescription to see if the medication would work effectively for them.
Example C: Security clearance holder purchases marijuana in a state where marijuana is legal for their spouse who is registered as a lawful medical marijuana user.
Example D: Security clearance holder is prescribed pain medication by their doctor but uses it more often than the physician has prescribed it for.
Cases Involving Guideline H Cases where a Clearance Was Denied
The following are 2 examples where individuals’ clearances was denied:
Example A: Applicant’s recent use of marijuana was deemed to be too recent to qualify for a security clearance. Copy of decision is located here.
Issues to Consider for Drug Usage Cases Under Guideline H
In security clearance appeals involving Guideline H, Drug Usage, it is very important to understand just how important it is that the federal employee understands and acknowledges, where appropriate, the misconduct they committed and to acknowledge that it will not happen again. This provides a strong basis for mitigation in many cases. Defending illegal use or an addiction problem only makes mitigation more difficult. It cannot be overstated that security clearance adjudicators take drug usage concerns seriously and are often looking for acceptance of responsibility and other steps in order to mitigate it.
The following are 20 items (not a full list, which is too long to provide here) that we often consider when handling Guideline H cases:
- How long ago was the last illegal drug use?
- How many incidents of illegal drug usage are there in the last 7 years?
- How many incidents of illegal drug usage are there over the federal employee’s lifetime?
- Has there been medical / counseling intervention for the drug usage?
- Has there been any drug treatment given or taken?
- If there has been drug treatment, has it been voluntary or mandatory (i.e. part of a court order related to a criminal case).
- Is it important to get an independent review by a medical expert regarding the likelihood of recurrence of drug issues? An expert physician or psychologist may be needed.
- Has there been abstinence from illegal drug usage or abuse of prescription drugs (and for how long)?
- Was there any confusion about state laws on drug usage (typically with marijuana)?
- Has there been a change in illegal drug usage by the federal employee?
- Who could potentially testify positively about the federal employee’s drug usage and change in drug use behavior?
- What kind of documentation can be used for exhibits to show abstinence from illegal drugs?
- What kind of documentation can be used to show a change in behavior around illegal drugs or associates involved in illegal drugs?
- What types of organizations (Narcotics Anonymous, Church, Treatment Programs, Physicians, other groups) can be used to support the federal employee’s case that he or she avoids or has ended drug misuse?
- What types of evidence can be used to show how serious the federal employee takes the drug use issues? i.e. letters of support, character letters, etc.
- Is a letter of proposed revocation of a security clearance appropriate to add as an exhibit should illegal drug usage issues recur.
- Is there medical or treatment documentation available to potentially use as exhibits during the clearance proceedings?
- Has the federal employee stopped associating with others engaged in illegal drug use?
- Was there some medicinal use needed for the illegal drug (typically marijuana) or prescription drug?
- Did the use of unauthorized prescription drugs lead the federal employee to seek a lawful prescription for the medication?
Illegal drug use and prescription misuse security clearance cases under Guideline H can involve many different types of variables and a number of mitigating factors specific to each case so hiring experienced counsel to represent and advise the individual involved is critical because each case is different. The key in representing federal employees in security clearance proceedings in this type of case is to be prepared.
In sum, when a federal employee is facing illegal drug-related or prescription misuse in reference to a security clearance, it is very important to have experienced counsel. If you need assistance with a security clearance case, please call us at (703) 668-0070 or contact us at www.berrylegal.com, our Facebook page or through this page.