So says the Army CCA in a published opinion in United States v. Gean, No. 20100499 (A. Ct. Crim. App., April 30, 2012).
Private Gean was “aggrieved by the various difficulties of his service in the Army, and life in general, [and] was apparently apt to utter rather graphic remarks about what he would like to do to some of those who crossed him.” Slip op. at 2. This earned him an involuntary mental health examination. During that examination, he was not advised of his Article 31 rights and was required to answer the psychiatrist’s questions. He then made three statements regarding other persons that the psychiatrist understood to constitute actual threats to those persons. Those statements resulted in his conviction, contrary to his pleas, of three specifications of communicating a threat in violation of Article 134, UCMJ.
The CCA finds that “when a soldier is directed to undergo psychiatric evaluation, required to respond to questions about threats, or his thoughts of threats, as part of that evaluation, does so honestly, and in doing so communicates a threat, such a threat is not wrongful as a matter of law.” Slip op. at 3. The court notes that its decision does not immunize threats “levied directly against an evaluating psychiatrist or threats made outside the scope of responses to questions posed during any such evaluation.” Slip op. at 3, N.1.
But, the court concludes that:
“The law is not so dim as to damn a soldier for responding honestly to a psychiatrist when compelled by command directive and psychiatric need to do so.”
Slip op. at 3.