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Drug Use and Security Clearance Issues

Illegal drug use and misuse can be a crucial factor in obtaining or maintaining a security clearance. Adjudicative Guideline H of the Security Executive Agency Directive (SEAD) governs drug involvement and substance misuse. Drug use refers to the illegal use of a substance or the misuse of a legal drug in a way that deviates from prescribed medical guidelines. This Guideline also evaluates the impact of drugs on an individual’s ability to obtain or maintain a security clearance.

Today, while certain drugs are being decriminalized or legalized at the state level, individuals seeking or holding a federal security clearance must recognize that federal regulations have not changed to match state laws. In other words, compliance with state law does not equate to compliance with federal standards. Unfortunately, this has led to many security clearance problems over the past 5 years.

Laws and Regulations

The laws and rules governing drug use and holding a security clearance are up the President. The Supreme Court has made this clear. Presidents, over the years, have developed an evolving framework regarding drug usage and security concerns. In this, presidents have included illegal drug use as a basis to deny or revoke a security clearance. Security Executive Agent Directive (SEAD 4) governs the adjudicative guidelines used to determine an individual’s eligibility for access to classified information.

Adjudicative Guideline H: Drug Involvement and Substance Misuse outlines the considerations and concerns the government evaluates regarding any history or pattern of drug involvement. SEAD 4 governs federal employees, government contractors and military personnel.

Guideline H Security Concerns for Drug Use

The Government takes illegal drug use and prescription drug misuse seriously in the contact of security clearances. Drug abuse or dependence may increase the risk of unauthorized disclosure of classified information by impairing physical or psychological functioning. As a result, improper or illegal use of drugs raises questions pertaining to an individual’s willingness or ability to protect classified information and comply with the laws and regulations.

Guideline H of SEAD 4 focuses on the following areas of misuse

• The illegal use of controlled substances, including the misuse of prescription and non-prescription drugs;
• Use of substances that impair mental or physical functioning; or
• The use of substances used in a manner inconsistent with their intended purpose.

Drug Use Clearance Mitigation

Security clearance adjudicators consider many different types of mitigating factors when evaluating drug use or prescription use cases. There are too many to list here. However, here are some considerations when they evaluate a security clearance case for mitigation.

1. Recency/Frequency: Was the drug use long ago and was it an isolated incident? Was there a pattern or repeated use?
2. Voluntary Cessation and Abstinence: Has the individual abstained for a significant period of time? Is there a risk that the use can recur?
3. Acknowledgment: Has the applicant or security clearance holder accepted accountability?
4. Change in Environment: Has the individual dissociated from drug-using peers and environments where drugs might be used?
5. Medical context: Was prescription misuse related to an illness, and has it since stopped? Has the individual since obtained a legal prescription for the medication they used improperly before?
6. Rehabilitation and treatment: Was treatment necessary? If so, was it sought? Was it effective?

Drug Use in Light of Marijuana State Laws

Today, we all know that many states have legalized marijuana for recreational or medicinal use. However, marijuana use remains illegal under federal law, and its use usually triggers security clearance concerns. The problem is that Congress has not changed the Controlled Substances Act, which classifies all marijuana use as illegal. As a result, federal clearance forms, such as the Standard Form 86 (SF 86) or eAPP, continue to ask about marijuana use, despite the legality of its use at the state level. One of the most common security clearance issues that we see in our office are clients that believed that because state law permitted marijuana use that it was acceptable. The Government always responds by pointing to training given to individuals holding security clearance which shows the contrary.

Examples of Favorable Determinations

The following are a few examples of favorable drug use cases:

Example A: An applicant admitted to marijuana use during college and as a graduate student. He has since abstained, provided character references from colleagues and friends, and demonstrated a stable employment history. Clearance granted. Copy of decision is located here. 

Example B: Between March 2021 and September 2023, the Applicant used legal cannabidiol (CBD) products under a state medical program to treat chronic back pain. The products contained less than 0.2% tetrahydrocannabinol (THC), which was below the federal legal limit. He has since stopped using CBD, is under medical care with a new treatment plan, and has no plans to resume use. Clearance granted. Copy of decision is located here.

Examples of Unfavorable Drug Use Determinations

The following are just a few examples of unfavorable drug use clearance decisions:

Example A: Applicant deliberately used marijuana from 2013 to at least January 2022 and minimized its seriousness during the interview process. He stated that he intended to continue to use marijuana after being granted a security clearance. Clearance denied. Copy of decision is located here.

Example B: Applicant admits to using marijuana intermittently from 2011 to 2018, including use while employed in a position that prohibited drug use. He used marijuana recreationally and for post-surgical pain, continued associating with users, and lived with a roommate who used it regularly. Although he initially stated in a 2018 security clearance application that he intended to keep using marijuana, he later changed his position after learning it remains illegal under federal law. Applicant testified he has no intent to use it again. However, the administrative judge found that the applicant did not show the requisite character or judgment of someone who has the maturity, integrity, good judgment, and reliability necessary to access classified information. Clearance denied. Copy of decision is located here.

Contact Us

Security clearance decisions under Guideline H depend heavily on the individual’s specific facts, history, and demonstrated efforts toward reform and abstinence. With the growing trend toward the decriminalization and legalization of certain substances, it crucial for applicants to be honest about prior drug use. If you are facing a security clearance review involving drug use or prescription misuse, you should seek experienced legal counsel familiar with federal clearance adjudications. We can be reached at (703) 668-0070 or by contacting us here.