This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.
By John Berry
There are usually two parts to a security clearance case: (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 they should not bar an individual from the ability to retain or obtain a security clearance. Overall mitigation is usually referred to as the Whole-Person Concept for security clearance matters. This evaluation focuses on whether the individual, even with security concerns, is an acceptable security risk.
Under the Whole-Person Concept, an adjudicator will evaluate an individual’s eligibility for a security clearance by considering the “totality” of his or her conduct and all relevant circumstances. There are nine factors that are reviewed based on the Department of Defense (DoD) Adjudicative Guidelines:
- the nature, extent, and seriousness of the conduct;
- the circumstances surrounding the conduct, to include knowledgeable participation;
- the frequency and recency of the conduct;
- the individual’s age and maturity at the time of the conduct;
- the extent to which participation is voluntary;
- the presence or absence of rehabilitation and other permanent behavioral changes;
- the motivation for the conduct;
- the potential for pressure, coercion, exploitation, or duress; and
- 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 nine factors are mentioned here, other factors are also considered. 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 individualized issues fall under Factor 9.
For example, an individual holds a Top Secret security clearance and has been convicted of driving under the influence of alcohol. As a result, security concerns are raised and the individual’s security clearance is at risk. In addition to addressing the issues involving the driving under the influence charge, the person would want to present evidence of good character (e.g., letters from supervisors, friends, and family), good or outstanding performance at work, and/or community/charity involvement.
Generally, we find that clearance holders are not provided information about how to use the Whole-Person Concept to help them rebut security clearance concerns. Each case is different, but in many cases an individual seeking to retain or obtain a security clearance must go through his or her positive record in life, the community and at work in order to help mitigate security issues that arise.
We represent individuals in security clearance matters. If you need assistance with a security clearance matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.