Marijuana use while holding clearance

SECURITY CLEARANCE Q&A
1

Hi all, was hoping to get some thoughts/advice regarding my situation. Sorry for the wall of text. As you can tell from the title, it’s not the best position to be in. I’m a civilian working for the DoN. To put it simply:

2009 – Initial secret clearance granted

~September 2017 – Marijuana use – 1 puff (was drinking at a party and thought I was handed a tobacco cigarette)

September 2018 – Ate an edible – was going through some “unique circumstances” – more on that later

February 2019 – Filled out updated SF-86, noting both instances, but didn’t provide detail, just the dates and the fact that I had no interest in using again.

June – Received notice from my FSO that my command intended to suspend my access. My FSO (who has been extremely helpful through this whole process) helped me craft a letter going into detail with both situations as well as mitigating factors. For the more recent usage, I was going through a time period where our family home was destroyed in a natural disaster (was displaced for a while), my dad’s mental illness progressed to the point of needing fulltime care, as well as some members of his family (who I had known and been closed to all my life) turned on my mom and me including personal attacks/accusing us of causing his illness, etc (I was careful to turn this into an excuse however). I also got many reference letters from current/former coworkers/supervisors as well as friends including clearance holders, all of whom were made aware of the drug use and most of them noted so in their letters. This local issue was resolved in a couple weeks in my favor. The letter I wrote later became the basis of an SF-86C I submitted; my FSO also forwarded all the reference letters they received.

July – Had a phone meeting with investigator. Very polite and easy to talk to. While he did bring up the marijuana and it was discussed (also asked if I would use again, if any of my family knew, and if I felt this could be blackmail material – answered no to all), he spent a lot more time regarding my foreign contacts (my wife is not a US citizen so obviously all of her family, some friends, bank account, etc). For what it’s worth the country is not a hostile one. He asked me for a couple more references who were aware of my drug use and that was that.

Aug – Investigation closed. As far as I know, my references were not contacted.

So, at this point I’m just playing the waiting game. I’m not terribly worried about the 2017 incident, as at this point I think time can mitigate it. The 2018 incident, while just over a year ago, is still “recent” based off DOHA hearings I’ve been reading. I did make use of the “or’s” in AG 26 (a), to focus on “was so infrequent” and “happened under such circumstances that is unlikely to recur” and I have seen decisions that eliminated the “happened so long ago” in their mitigation determinations. And of course, relying on the DOHA hearings can be problematic as they are only for contractors who received SORs and responded, not those who were adjudicated without one, and of course no civilians.

My FSO has said they’ve seen a couple recent cases with uses similar to mine. One was revoked (but they also did not self report), and one was approved, though it took a couple years and that employee did receive a SOR and responded to it with a lawyer. There are also a few still in process.

I’ve also added to mitigation that we do no longer associate with the people who supplied the drugs, I’ve taken more healthier steps to stress management (as well as cut off a good chunk of family out of our lives), and I’ve been seeing a drug counselor that I found via DON CEAP. The incidents I mention above are the only two times I’ve used drugs. I hope the fact that my command did not suspend my clearance would be looked at favorably as well.

I’ve been applying for jobs here and there, and had an interview for one (still determining if I would take it or not), but I haven’t gone full blown into it. What do you all think? Is my case hopeless or is there a chance? And of course, as time goes on the time mitigation becomes more in my favor. A big thank to you in advance to anyone who reads through this and responds!

2

You haven’t received a SOR? I’d be frustrated that my command wanted to pull my clearance over that. I would wait and see if you receive a SOR first. If you do, I would recommend responding with a clearance attorney.

I would think you can mitigate this. I’m sure you’re looking for assurance considering the situation but with over 700 adjudicators it is hard to tell how it will go. I’ve heard of people smoking with a clearance and then still getting a TS, I’ve read adjudications where people smoked twice and got denied a secret. Some people have smoked and never got a SOR or anything and we’re granted a clearance. Unfortunately it’s impossible to know. If you do get a SOR and even get your clearance revoked you can still retain your job while you appeal of your supervisor is ok with that. Even after that you can go into a suspended state, get hired back as a contractor position only requiring an SF85 and wait until you can reapply for a secret. Once that’s granted then you can go back to your government job.

Again, sorry to hear about your situation but I would wait until you actually receive a SOR. I would also hope your command is a bit more understanding and merciful.

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3

Yeah, I wasn’t happy regarding what the command threatened, but it ultimately worked out and of course I had bosses/coworkers backing me up which was nice.

Probably the most annoying thing is as you noted, there are so many adjudicators and there’s so many different ways it can go. Looking at DOHA hearings I’ve even seen the same judges make wildly different decisions based off similar cases.

Unfortunately if my clearance is revoked I would have to leave and be placed on LWOP per my FSO. No appealing to stay on board or anything.

But in the meantime, yeah I’ll just have to wait and see if I receive a SOR (unless I decide to take another job in the meantime).

4

I wish the best of luck to you. If you get a SOR definitely hire a clearance attorney and I would recommend getting evaluated by someone like Kimberly Berlin. Hopefully it doesn’t come to that. That’s a shame you can’t keep your job during the appeal, the FSO at my facility feels differently. I would hope you could return to your position as a contractor until you could reapply.

It’s a shame that in an attempt to show you can’t be blackmailed for your secrets that the DOD CAF essentially blackmails you in return. I hope that doesn’t happen to you but the one word of caution I would have would be stating that you used due to the stress of your family situation. While it certainly could be looked at as an unusual situation it could also be interpreted that you’ll turn to drugs whenever you’re stressed instead of dealing with it in a manner more in line with national security. Just something to consider when writing a response. When you do hear back I’d love if you could update this post for others to learn from

Remember, you didn’t mean to do this to yourself. I hope it all works out for you and you can keep your clearance. Talk to your boss about maybe ensuring you guys have a contract in place that you can come back on in the event you have to wait out to reapply.

I wouldn’t stress until you get the SOR but certainly doesn’t hurt to plan.

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5

Much appreciated. And regarding the stress I did note that I had taken positive steps to managing stress better (as well as cutting people out of our lives). And in any case, I noted on the original SF-86 that I simply wasn’t interested in using again irregardless of any of that (before I knew about the threat to my employment). So I hope that would count somewhat towards mitigation in the future. But yes… frustrating to be honest and upfront and in return get threatened with losing my career. I did what I did though, and can’t change anything at this point, so just gotta go with whatever happens!

6

Use while cleared normally takes far longer to mitigate. The terrible circumstances and letters in support seem to have served you well. Not geting pulled by your command is even better. I can tellyou personally, I had to mitigate use of another person’s medicine while going through an awful divorce. Stress does make you rationalize and do things you would not normally do. Removing the previous group of people is a huge mitigation, as is seeking counseling. Owning an issue, not making excuses and making definitive change is superb. Clearly your command feels you cannot be blackmailed. Being open with friends and family takes the wind out of those sails. There are so many different adjudicators and various levels of review to consider that can all weigh in differently. That is the reason we often give the answer “it depends.” Not a great answer for sure. I appreciate your candor here and ask you keep us informed as this is how we learn. I think you clearly have a fair shot at it being overcome and signing a conduct letter showing you were warned. You cannot ever fall back on this same excuse. I’m pulling for you!

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7

Thank you so much for your insight, I really appreciate it! I know I haven’t put myself in a good position, but I hope my honesty and actions taken afterward can somewhat mitigate my (not too distant) past.

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8

You have a lot in your favor. If you get an SOR I do recommend a clearance lawyer. Too many write appeals using irrelevent good things to defend themselves. A clearance lawyer knows and understands the accepted mitigations for MJ use and will build a defense based on each of the ones you qualify for. That is a strong appeal. Support of your comman, character references, you did not get current clearance pulled, you removed the drug users from your life, etc. Seeking counseling for how to cope better, a 12 step program, an accountability partner, life putting you in a better place…all of these are favorable. Be adamant you see how you made bad decisions under stress. I too made what seemed quite rational at the time decisions. I look back and cannto believe I made those choices. Stress and bad circumstances really makes us see differently. Keep us posted.

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9

Thanks again Amber! Hopefully it all works out in the end. I already contacted Bigley and Ranish for a quick E-Mail consult. Are there are any others that you would recommend if it comes to that?

10

Edmunds is another one to check out. Also consider evaluation from Kimberly Berlin if you get a SOR

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11

Thank you! I’ll look into those as well!!

12

Sorry . . . coming to this late . . . I have a question:

You mentioned that OTHER cases that you researched had not self-reported. As I read your story, you didn’t report any of this until you were required to fill out a new SF-86? This means that you waited two years to self-report the first incident? You are aware that it was your responsibility to report this as soon as possible after the use? Pardon me if I got something wrong.

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13

No worries, more the merrier. And you are correct. These incidents were self-reported on the SF-86 sometime after they occurred, and not immediately to my FSO. For all the issues I have this is one 'm probably least worried about for a couple reasons:

  1. I specifically brought up the reporting discrepancy to my FSO and they said that since I admitted it on the SF-86 it would not be an issue.

  2. I’ve gone through (to my knowledge) every single DOHA case of an individual using marijuana while holding a security clearance and pretty much everyone who did only self-reported on their SF-86. The lack of self-reporting beforehand generally did not seem to make a difference in mitigation. I even saw cases where someone who didn’t self report at all (only admitted it in their interview) still kept their clearance. I think I only saw one case where the judge specifically called someone out for only self-reporting on the SF-86 and not to their FSO (and, annoyingly, this same judge specifically gave someone else credit for self-reporting on their SF-86 even though they didn’t self-report to their FSO - this person also kept their clearance).

Based off all the cases I’ve seen and their circumstances, I think the biggest blow to my case is going to be the time mitigation, which is, unfortunately, the one thing I can do nothing about at this point and something that no one can really assist with.

14

I would honestly expect a problem. But it depends client to client. Mine will revoke for use. Non report? Absolutely revoke. Only report when faces with a new SF86? Definitely revoke. Not trying to rain on your parade but exactly how many use cases did you research? How many total, how many ended positively, how many ended with revocation? Or did you only read the ones with happy endings?

Welcome back Ed.

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15

Oh, I expect problems as well for sure. Certainly no parades going on for me haha. But for that specific issue I think is the least of my worries. Well, when I say I reviewed cases I just went down each year for the DOHA hearings (they go back to 1996) searching for marijuana use while cleared.

I honestly can’t say how many I looked (too many to count), but the majority ended in revocation. My point, however, was that judges did not seem to factor in the specific point of when the self-reporting occurred (whether it was after the use, or just on the SF-86) in their decision.

And of course, going by DOHA can be problematic as those are only (as I understand it) for DoD contractors who received SORs and requested a trial. Civilians are not included but it’s the best I can do with the information available to me.

Lastly, it’s tough to compare cases as every one is different and different judges weigh factors differently. While there are some people with my usage amount who got theirs revoked, other revocations occurred with frequent, ongoing usage, often in conjunction with arrests, other drugs/DUIs, not being honest even after being confronted, etc. And like I said, some managed to keep theirs even after multiple uses and not reporting it on their SF-86.

As for me, I obviously can’t change what I did, so I just have to try and mitigate it as best I can and hope for the best and plan for the worst.

16

Here’s the thing that I see . . . You say that when someone self-reported didn’t seem to make a difference but you also point out that most were revoked. If they are being revoked for use, the self-reporting issue would not be expected to come into play as the action is what caused the revocation. If you get revoked for the action, what comes after doesn’t matter.

If, as time goes by, smoking while cleared becomes less of an issue (easier to mitigate) , when you self-report will become more important. This is because self-reporting brings in different guidelines.

In other words, in any appeal, if you can’t mitigate the action, reporting is moot. If you CAN mitigate the action, self-reporting at the time of the incident, is going to work in your favor.

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17

If your SOR does not state self reporting is a problem the clearance authority can not say “Well you’ve mitigated this but now we’re going to decide based on some other stuff we didn’t give you a chance to respond to and didn’t state was a concern”. That said it could still weigh in on the decision as part of the Whole Person concept.

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18

Ah, now I see your point. Regardless, I still believe this is a minor issue compared to both the time since last used as well the use itself and not something I’m going to worry about (I have enough worries about this as it is). I’ve only seen one (albeit recent) case where the applicant was dinged for only self-reporting on their SF-86. It does seem like they are getting more strict than in previous years so your point might factor in more strongly in future cases.

But on the other hand, while I have seen cases where enough time had passed get revoked even if time could have mitigated it, the reason for revocation was either not self-reporting at all until confronted at the interview/poly/drug test, or a pre-clearance/more frequent drug use history.

I do appreciate the added viewpoint though! Thanks!

19

Yea, even if you get revoked now and lose in appeal reapplying will probably be much easier since you’ve been honest. Fingers crossed in a year n change the MORE Act gets passed and you’d be smooth sailing, although that’s very unlikely.

Just stack as much money as you can, you’ll have to go into Admin LWOP but I imagine you can reapply a year to the day. Hopefully you’ve got good relations with contractors in your area and someone that knows your abilities will take you on while you wait out the year. You Fed career is still intact.

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20

Very much banking on the honesty/whole person aspect (even if my self-reporting wasn’t timely). Already been reworking my resume and applying elsewhere as a backup. I’ll just wait for the SOR at this point, speak with a clearance lawyer then and see what my options/chances are.