By John V. Berry, www.berrylegal.com
The "Whole-Person Concept" in security clearance cases is not well understood. As background, in security clearance cases, there are generally two parts to a clearance appeal: (1) responding to the security concerns at issue (individual disqualifying and mitigating factors) and (2) overall mitigation. Overall mitigation is most often used when the security issues are true or partially true, but an individual is arguing that the concerns should not bar them from the ability to retain or obtain a security clearance.
What is the Whole-Person Concept?
General mitigation is usually referred to as the Whole-Person Concept in security clearance cases. This Whole-Person Concept evaluation focuses on whether the individual, even with security concerns, is an acceptable security risk. The determination calls for determination based on the all of the facts relevant to the person at issue. Under the Whole-Person Concept, a clearance adjudicator (the government official reviewing the security clearance case) evaluates an individual’s eligibility for a security clearance by considering the “totality” of his or her conduct and all relevant circumstances. There are 9 factors that are reviewed based on the Department of Defense (DoD) Adjudicative Guidelines:
1. the nature, extent, and seriousness of the conduct;
2. the circumstances surrounding the conduct, to include knowledgeable participation;
3. the frequency and recency of the conduct;
4. the individual’s age and maturity at the time of the conduct;
5. the extent to which participation is voluntary;
6. the presence or absence of rehabilitation and other permanent behavioral changes;
7. the motivation for the conduct;
8. the potential for pressure, coercion, exploitation, or duress; and
9. the likelihood of continuation or recurrence.
Under these Adjudicative Guidelines, the final determination of whether to grant eligibility for a security clearance is “an overall commonsense judgment” based on both the merits of the security issues and a review of the Whole-Person Concept. While only 9 factors are mentioned in the cases (e.g. at page 8) other factors are also considered but not mentioned. We find that the Whole-Person Concept is often best used to describe the individual’s character, positive work history and record, community involvement and other factors that help to show that the individual’s record merits a commonsense judgment for keeping or retaining his or her security clearance. Many of these generalizes concerns can fall under Factor 9.
As an example, take the case of an individual who holds a Secret security clearance and has been convicted of a minor criminal offense (i.e. assault). As a result of the issue, security concerns are then raised and the individual’s security clearance is potentially placed at risk. In addition to addressing the issues involving the criminal charge, the person would likely need to present evidence of good character (e.g., letters from supervisors, friends, and family), good or outstanding performance at work, military service, and/or community/charity involvement. Evidence of prior public service, accomplishments or commendations can also be helpful under the Whole-Person Concept. Generally, we find that security clearance holders are not provided information from the government or security officers about how to use the Whole-Person Concept to assist them in resolving security clearance concerns.
In sum, the Whole-Person Concept is the part of the security clearance case where an individual gets to argue that notwithstanding the security issues that the person is still an acceptable security risk based on their life and record.