Guideline H: Drug Involvement
Guideline H governs illegal Drug Involvement and Substance Misuse. This guideline addresses the concern that the illegal use of controlled substances or the misuse of prescription drugs can raise questions about an individual’s reliability, judgment, and ability to follow laws and regulations.
The Department of Defense and all Intelligence Community agencies maintain a zero-tolerance policy regarding the use of illegal drugs while holding a security clearance or while being a federal employee. The use of illegal drugs raises questions in many areas of an individual’s life. Adjudicators are concerned that drug abuse and substance misuse may lead to impaired judgment and vulnerability to coercion or blackmail. Illegal drug usage can raise concerns in other areas as well, including financial problems, criminal charges, and the ability to protect classified information.
Concerns under Guideline H
The concerns of illegal drug involvement are not just with illegal drug use (including marijuana, as it remains federally illegal, despite many states making it a legal drug) but the misuse of prescription drugs, whether prescribed to the individual or someone else. Even the abuse of non-prescription drugs can cause problems. Drug are behavior altering substances and can cause even those with non-addictive tendencies to make dangerous decisions that affect their health and safety and endanger national security through unauthorized disclosure of restricted data or classified information.
Personal Conduct and Illegal Drug Involvement
Additionally, the adjudicative guidelines make clear the drug use itself is not solely the concern, but whether an individual’s willingness to comply with laws, rules, and regulations. These concerns are expressed in both Guideline H for illegal drug involvement but also Guideline E for personal conduct concerns. Often, the same illegal drug use will be cited under both guidelines for that issue.
Honesty on the security forms is a major issue and often arises where applicants are not fully forthcoming about their drug use history. Inconsistencies or omissions on the SF-86 can lead to security clearance denial, often being more damaging than the underlying issue itself. Too often applicants are told (or claim they were told) not to list marijuana use on the security forms, for example, and the failure to properly and fully disclose that use can, by itself, cause the denial or revocation of a security clearance.
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Mitigation under Guideline H
- Recency: Recent drug involvement will always be a concern. The more time between an individual’s drug use and the application, the better. If the drug involvement happened a long time ago and was an isolated or aberrant event, this can help. Time is often an effective mitigating factor and can be enhanced by the demonstration of circumstances showing improved maturity and decision making.
- Abstinence: The individual has demonstrated a clear, long-term period of abstinence from all illegal substances. Drug screens that show the absence of any illegal drugs or other chemical compounds are even better evidence of abstinence beyond the individual’s own words.
- Expressed Intent to Comply: The individual has signed a sworn formal statement of intent of no future illegal involvement with drugs and the understanding that any future involvement with illegal drugs will result in a clearance revocation. This demonstrated intent is a double-edged sword, however, because if the individual were to have a similar concern arise in the future, revocation is nearly certain to occur.
- Rehabilitation: Satisfactory completion of an approved drug treatment program and a favorable prognosis from a credentialed medical professional provides an indication that future drug use is less likely. Completion of a recognized drug treatment program, rehabilitation, and aftercare requirements shows commitment and a longer history of abstinence. This is true whether it is a prescribed drug treatment program or voluntary participation. The positive prognosis can show a lack of drug dependence and other positive indicators that would demonstrate that the problematic use is less likely to recur.
- Unwitting Use: The individual was unaware they were consuming a prohibited substance (e.g., an accidental ingestion). This is often seen with the rise of edibles in the form of gummies, candy bars, and lollipops, as well as homemade foods like brownies and cookies.
- Medical Direction: If the drugs in question were taken under approved medical direction, proof of that can mitigate concerns, especially where the individual was not aware that the substance was illegal.
Illegal Involvement with Marijuana and Federal Law
- Despite the legalization of certain drugs at the state level, individuals seeking or holding a federal security clearance must recognize that federal regulations have not changed, and involvement with illegal drugs can still trigger security clearance concerns. The Office of the Director of National Intelligence highlighted the issue in a December 2021 memorandum addressing marijuana use, CBD products, and financial investment in marijuana.
- Marijuana remains illegal under federal law, despite being recently reclassified as a Schedule III drug under the Controlled Substances Act. This means an individual who buys and uses marijuana may be cited under both Guideline H for illegal drug involvement, but also Guideline J for criminal conduct for illegal drug possession, even where the individual purchased the marijuana at a state-licensed dispensary.
- Security clearance law in the form of the security clearance adjudicative guidelines places even more restrictions on individuals than state or federal law. These regulations govern all federal employees. Guideline H still prohibits marijuana use for all cleared personnel. Even if marijuana were to be completely legalized under federal law, the adjudicative guidelines would have to be amended to change the standards as to how or when clearance holders could use marijuana.
- Investment in marijuana businesses is similarly problematic. Even where the marijuana business is traded on a public stock exchange, like NYSE or NASDAQ, if the business or mutual fund is involved in the cannabis industry, this does raise security concerns.
Call an Experienced Security Clearance Guideline H Attorney
Mitigating illegal drug involvement has many facets and an experienced security clearance attorney knows how to most effectively present evidence that mitigates the security concerns around illegal drugs. Our law firm represents federal employees, military personnel, and government contractors with all federal agencies. Contact us today to schedule a free confidential consultation at Brian@LSAttorneys.com or 847-775-7701.
