Illegal Drug Use and Security Clearance

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Illegal Drug Use and Security Clearance

ISCR Case No. 21-00509

Decided September 7, 2021

The Department of Defense Office of Hearings and Appeals (DOHA) issues court opinion denying or granting security clearances.  These court opinions by security clearance judges address concerns including illegal drug use by security clearance applicants.  This case illustrates why it is important for a security clearance applicant who is worried about illegal drug use to consult with an attorney before making any statements or submitting an eQIP with admissions of illegal drug use.

Applicant applied for a security clearance in January 2020. When filling out an SF-86 (Questionnaire for National Security Positions – eQip), he disclosed that he had used marijuana recreationally from November 2016 until he had applied for a security clearance. He also stated that he planned to continue using marijuana because he expected it to be legalized soon. He continued using marijuana during the investigation process through at least March 2021 – a full year AFTER he applied for a security clearance.

Applicant also disclosed on his SF-86 that he used cocaine “in casual party-settings with friends” from 2017 through January 2020. During his adjudication, Applicant disclosed that he was continuing to use cocaine casually through at least March 2021 – again, a full year AFTER he applied for a security clearance.

Finally, Applicant disclosed on his SF-86 that he had twice used hallucinogenic psilocybin mushrooms (aka “magic mushrooms,” or “shrooms”) in a controlled environment with friends.

In all these cases of illegal drug use, Applicant was in the presence of friends who also used various drugs. He claims that this influenced his behavior on at least some of those occasions. He stated that he still associated with those friends who are still drug users.

Applicant underwent the full spectrum of administrative actions in applying for his security clearance:

He received interrogatories.

He underwent an enhanced interview.

He received a Statement of Reasons (SOR).

He was afforded an opportunity for a hearing but requested a written record evaluation.

Essentially, Applicant did all the wrong things (almost). He stated in his SF-86, interrogatories, and enhanced interview that he planned to continue to use marijuana, despite knowing that they were illegal. He then actually continued to use drugs while his investigation was ongoing. He continued to associate with known drug users, even though he stated that their presence encouraged his drug use. He never sought or received any kind of counseling or treatment for drug use. The administrative judge did credit Applicant for being candid in disclosing his drug use but noted that Applicant’s candor did not resolve significant questions regarding Applicant’s eligibility and suitability. Ultimately Applicant failed to mitigate the considerable concerns raised by his drug use and was denied a clearance.

In evaluating his record, the administrative judge took an opportunity to lay out the details of how clearance decisions are made. It is worth a read on its own, but I have summarized it below along with a thought experiment to illustrate his points.

First, no one is entitled to access to classified information. There is no such thing as a right to a security clearance. Because the risk associated with granting access to classified information is so high, security clearance decisions should usually err on the side of denials. The decision to grant or deny a security clearance depends entirely on whether it is clearly consistent with the national interest.

Second, in cases of alleged or admitted drug use the government must evaluate the facts presented under “Guideline H” of Security Executive Agent Directive 4 (SEAD 4). Guideline H identifies concerns raised by illegal drug use. It also outlines certain factors that may lessen the negative impact that drug use plays in the decision to grant or deny a security clearance. Thus, illegal drug use does not automatically disqualify an applicant. Drug use is considered as part of the “whole person concept.” The decision is made on a case-by-case basis, and centers on the question “Is the applicant honest, trustworthy, and reliable.”

To illustrate the government’s mindset, ask yourself if you would trust a known drug user with your most important assets. It can be your car, your money, your house, or your children. A charitable person who is willing to give someone the benefit of the doubt, would say it depends. Most people would at least want to know the kind of drug, when it was last used, whether they promised not to use anymore, and they would also probably want to revoke or suspend their access the person ever used drugs again. The government, however, is not dealing with individual bank accounts or a used Toyota Corolla. They are concerned with access to defensive missile systems, nuclear submarine locations, military intelligence, and satellite communications. Most clearance decisions – not just illegal drug use cases – come down to that simple analysis: If I would not trust the person with my email password, why should I trust them with information that is critical to national security?

Ultimately, anyone who seeks access to classified information is asking the government to entrust him or her with information requiring significant trust and confidence. This is why drug use is so problematic. It is entirely possible for an applicant to be both a drug user and possess the utmost honesty and trustworthiness. But the burden is on the applicant to prove it.

If you have a history of illegal drug use, especially within the last seven years or while previously holding a clearance, your security clearance eligibility is on life support. The Jacksonville, Florida-based attorneys at Korody Law, P.A. have the experience and knowledge to assist with framing the best possible arguments in your favor. We can help you build a body of evidence to mitigate concerns arising from previous illegal drug use and put you back on the road to clearance eligibility. We practice nationwide in front of all federal agencies and military departments, and we are standing by to assist regardless of your clearance level or status.

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Jacksonville FL Military Lawyer Patrick Korody handles personal injury, criminal defense, and military law issues including court-martial, security clearance revocation, security clearance denied, security clearance suspended. Jacksonville Florida Mayport Kings Bay NAS Jacksonville NAS JAX Naval Station Mayport Patrick Air Force Base Charleston Naval Weapons Station NAS Key West NAS Pensacola NAS Whiting Field Criminal Defense Lawyer. Criminal Defense Attorney former JAG lawyer provides services to Navy Air Force Marine Corps Army military members. Court-Martial Court Martial Courtmartial adsep boi security clearance revoked security clearance suspended. Military member DUI in Jacksonville, FL. Military sexual assault defense lawyer: sexual contact, rape, indecent assault, child pornography possession. Under investigation by NCIS? Call us. NJP appeals. Administrative Separation Boards. Military trial attorney. Civilian counsel for military members. Offices located on Mayport Road.