In our Firm’s security clearance defense practice, one of the most common issues faced by Federal employees and contractors alike involves Guideline H, Drug Involvement. When an individual comes to our practice to seek assistance in regards to their security clearance this is one of the most frequent issues that comes up. Guideline H of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information involves issues that are sometimes difficult to face, let alone explain, such as prior illegal drug use, or issues with regards to the misuse of a prescription drug.
Drug involvement issues are often raised by Federal agencies with respect to security clearance determinations and included within an individual Federal employee or contractor’s Statement of Reasons in denying a clearance. These kinds of security clearance issues require a lot of planning on the part of the individual involved to explain prior illegal drug use/involvement or prescription drug abuse, so obtaining counsel is highly recommended.
Guideline H, Drug Involvement – Defined
Guideline H is defined in the Adjudicative Guidelines as follows:
The Concern. Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.
(a) Drugs are defined as mood and behavior altering substances, and include: . . . marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances;
(b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.
This definition used in the Adjudicative Guidelines is fairly general, but it is very important to be truthful with regards to any prior drug usage or prescription drug abuse. Often times drug usage itself can be mitigated, and a clearance can be obtained, but if a Federal employee or contractor is caught being less than truthful with respect to prior drug usage it raises a significant possibility that the person will be denied a clearance for having not been fully truthful. If one is denied a clearance on these grounds it makes it very difficult to obtain a security clearance in the future.
Types of Conduct Under Guideline H, Drug Involvement, Which is Subject to Review
One of the most frequent questions that is asked about prior drug use or involvement is what type of conduct a Federal employee or contractor needs to be concerned about. While there are many types of potentially disqualifying issues here, they generally can include:
(1) Prior illegal drug usage;
(2) Drug possession, distribution, processing, manufacturing, sale or possession of drug paraphernalia, etc.;
(3) Testing positive for illegal drug use;
(4) Any illegal drug use after being granted a security clearance; and
(5) Receiving a diagnosis of drug abuse or dependence.
Some Security Clearance Defenses to Prior Drug Involvement
There are a number of mitigating circumstances (defenses) that one can raise with respect to security clearance cases involving drug involvement. Raising these defenses through legal counsel can increase a Federal contractor or employee’s chances of obtaining or keeping their security clearance. While there are many different types of defenses, some of the best mitigating defenses to allegations of drug involvement include:
(1) The drug use or involvement, etc. was a long time ago or was infrequent that it does not cast doubt on the individual’s reliability, trust or judgment;
(2) Following a period of drug involvement, the Federal employee or contractor is able to show that they have abstained from use or involvement for an appropriate period of time;
(3) Any prior prescription drug abuse occurred a long time ago and/or had occurred following a serious illness and is now not an issue;
(4) If the individual was associated with individuals involved in improper drug involvement that the person seeking the security clearance has disassociated themselves from these individuals;
(5) The individual changes or avoids environments where drugs were previously used;
(6) Successful treatment in a drug treatment program, for either illegal drug use or for the abuse of prescription medicine; and
(7) If the issue involves the abuse of prescription medicine, the individual provides a favorable medical diagnosis by a qualified medical professional.
Closing Thoughts in Regards to Security Clearance Cases Involving Drug Involvement Under Guideline H.
In cases involving drug involvement under Guideline H, whether before a Federal employee’s Agency, DONCAF, DOHA or the Agency’s personnel security appeals board, it is important to be honest in responding to questions about drug involvement and usage. It is also very important to make sure that one has a prepared explanation and evidence to support the explanation about prior drug involvement. Often times there are many good defenses for prior drug usage or for prescription drug problems. This is why it is very important for any individual that must respond to prior drug involvement to seek counsel to assist them.