Drug history need not derail security clearance


Getting a security clearance is not easy. The application process includes an extensive background investigation into the applicant’s personal life.

One reason your clearance can be denied is drug involvement. If there are mitigating factors, however, you might still be able to obtain clearance.

Under Title 10 of the U.S. Code, any person who is an unlawful user of, or addicted to, a controlled substance, as defined in the 1970 Controlled Substances Act, may not be granted access to classified information.

If your application is denied, you will be issued a notice that outlines the reasons for the decision and your right to appeal. If you choose to appeal, you must provide a written, thorough response that explains the conduct. The response should address each security concern individually. This is your opportunity to provide any information that explains or refutes the adjudicator’s concerns. Following your response, you will be notified of a final decision within 60 days. If your mitigation attempts were unsuccessful, you will be given the opportunity to appeal and request a hearing in front of an administrative judge.

It is at the response and appeal stages when the mitigating factors come into play. In addition to the list of conditions used to disqualify applicants, the adjudicative guidelines also include a list of conditions used to alleviate security concerns and grant you clearance. Those factors are:

*Evidence of reform and rehabilitation. This could be as basic as proving that the one time you smoked marijuana five years ago should not cast doubt on your current reliability, trustworthiness and judgment.

*Successful completion of a drug treatment program.

*Nature of the abuse. If the drug abuse stemmed from an addiction to antidepressants following a bout of postpartum depression, and the abuse has since ended, these factors will be taken into consideration.

If you have evidence of rehabilitation, obtain written documentation from the medical professional who treated you to submit with your response. You can request that the doctor appear on your behalf.

If the misconduct is recent, you must demonstrate intent not to abuse drugs in the future. You may be asked to sign a statement of intent to refrain from drug use and a notice that any violation will lead to automatic revocation of your clearance.

Even an extensive history of drug involvement can be mitigated by displaying sufficient evidence of rehabilitation. In a January hearing before the Defense Office of Hearings and Appeals, the applicant in question used marijuana about once a month on social occasions from 2004 to 2008. He admitted the use during the investigation and provided sufficient evidence of a lifestyle change and his intent not to abuse in the future. His clearance was granted.

This case proves that past involvement with drugs — no matter how large or small — should not deter you from taking the steps toward obtaining a security clearance. If you know you have instances in your personal history that may lead to denial of a clearance, I recommend bringing an attorney into the process early on. A legal professional familiar with the adjudicative guidelines can be invaluable in compiling an honest application, supplying the evidence necessary to mitigate concerns, and reaching the goal of obtaining a security clearance.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.


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