By John V. Berry, Esq., www.berrylegal.com
One of the more common issues that arise in the context of security clearance investigations is the issue of illegal drug usage and prescription drug usage (by other than the intended recipient) for federal employees and government contractors. This is regulated by Adjudicative Guideline H for those holding or seeking a security clearance. We represent federal employees and government contractors before all federal, intelligence and military agencies. 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 obtain 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 Guidelines which involves a security clearance holder or applicant’s use of illegal drugs or misuse of prescription drugs. Guideline H also evaluates the use of drugs by an applicant or clearance holder and it’s impact on an individual’s ability to obtain or maintain a security clearance.
Guideline H Rules for 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 or government contractor have engaged in the use of illegal drugs or misused of prescription drugs. The most common way in which this issue begins is when an employee is arrested or self-reports one of these issues. If recent, 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 abuse of prescription drugs, 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 or otherwise mitigate the security concerns. The Government, in addition to an overall evaluation of an individual who has admitted drug usage concerns, considers a number of mitigating factors. Keep in mind that most cases these days involve the use of marijuana in states where the use is legal, but the federal government still considers marijuana use illegal.
These mitigating factors, 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.
Cases Which Involve Favorable Clearance Determinations Under Guideline H
Example A: Applicant presented sufficient evidence to mitigate his infrequent use of marijuana. Copy of decision is located here.
Example B: Applicant mitigated security concerns arising from his history of marijuana use. Based upon a review of the record as a whole, national security eligibility for access to classified information was granted. Copy of decision is located here.
Example C: Applicant mitigated the security concerns under drug involvement and substance misuse, criminal conduct, and personal conduct. Continued eligibility for access to classified information was granted. Copy of decision is located here.
Cases Involving Guideline H Cases where Clearance Was Denied
The following are 3 examples where individuals clearances were denied and 3 examples where the individual’s clearance was granted under Guideline H.
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.
Example B: Applicant’s history of marijuana use from August 2015 through June 2017 has not been mitigated by sufficient evidence of reform and rehabilitation. Copy of decision is located here.
Example C: Applicant failed to mitigate the security concerns raised by her history of illegal drug use, purchase, and prescription drug abuse. Copy of decision is located here.
Issues to Consider for Drug Usage Cases Under Guideline H
In security clearance cases under Guideline H, Drug Usage, it is very important to understand just how important it is to demonstrate that the individual understands and acknowledges (where appropriate) the misconduct they committed and acknowledge that it will not happen again. Denying a known addiction problem or prior illegal usage only makes mitigation more difficult. It cannot be overstated that security clearance adjudicators take drug usage concerns seriously. Absent significant evidence of rehabilitation or other efforts, it can be hard to keep or obtain a security clearance.
Here are 15 items (not a full list, which is too long to list 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 applicant’s lifetime?
- Has there been medical / counseling intervention for drug usage?
- Has there been any drug treatment given or taken? Was such treatment 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 physician regarding the likelihood of recurrence of drug issues? An expert physician may be needed.
- Has their been abstinence from illegal drug usage or abuse of prescription drugs (and for how long)?
- Has there been a change in illegal drug usage by the applicant or holder?
- Who could potentially testify positively about the applicant’s drug usage and changed 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 (Alcoholics Anonymous, Church, Treatment Programs, Physicians, other groups) can be used to support the applicant’s case that he or she avoids or has ended drug abuse?
- What types of evidence can be used to show how serious the applicant 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?
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 clearance holders or applicants in such security clearance proceedings in this type of case is to be prepared to address the issues and any measures taken to remedy them.
In sum, when facing illegal drug-related or prescription misuse cases or other security clearance issues, 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.