In volume 63 of the Naval Law Review, Commander Robert P. Monahan, Jr., JAGC, USN, writes A Proposal to Conform Military Rule of Evidence 305 in light of the Supreme Court’s Holdings in Maryland v. Shatzer and Berghuis v. Thompkins, 63 Naval L. Rev. 67 (2014). Commander Monahan proposes modifying MRE 305(e)(3)(A) to incorporate the 14-day break in custody requirement from Maryland v. Shatzer, 559 U.S. 98, 110 (2010); modifying MRE 305(c)(4) to require an unambiguous invocation of the right to remain silent drawn from Berghuis v. Thompkins, 560 U.S. 370, 388-389 (2010); and modifying MRE 305(e)(1) and 305(e)(2) to permit implied waiver of the right to remain silent. This is a direct link to the beginning of the article in the complete volume of the Naval Law Review, hosted on the Navy’s website. This is a link to just the article, hosted on CAAFlog.

In the July volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Major Dane B. Getz, USAR, Closing the Gap in Access to Military Health Care Records: Mandating Civilian Compliance with the Military Command Exception to the HIPAA Privacy Rule, Army Law., July 2014, at 4 (direct link to article). Major Getz’s article reveals what I think is a disturbing institutionalized lack of respect for the protected nature of medical records. For example, the article considers a hypothetical situation where a “commander needs the NCO’s (non-commissioned officer’s] PHI [protected health information] as soon as possible to determine his continued fitness for duty and assess whether he may pose a danger to himself and others.” Id. at 5. Precisely what the commander (not a medical provider) will do with that information is unclear. Further, the article discusses the outrageous practice of issuing orders to Soldiers “to sign civilian medical release forms in their favor and/or turn over copies of their civilian PHI directly to commanders,” id. at 5 n.9, and labels Soldiers who wish to preserve their medical privacy as “medically non-compliant,” id. at 7 n.34.
  • Major Brent A. Goodwin, USA, Congress Offends Eisenhower and Cicero by Annihilating Article 60, UCMJ, Army Law., July 2014, at 23 (direct link to article). Major Goodwin’s articles discusses the changes to Article 60(c) in the FY14 NDAA and joins the debate over the meaning of the clemency limitations, ultimately agreeing with (though not discussing) my conclusion that in all cases the statute allows reduction of punishments that are not confinement for more than six months or a punitive discharge. Id. at 28. See this post.
  • Captain Jeremy R. Bedford, USA, Eligibility for VA Disability Compensation and Health Care Benefits for Army National Guardsmen Discharged with an Other Than Honorable Discharge, Army Law., July 2014, at 36 (direct link to article). Captain Bedford’s article concludes: “The interpretation of VA benefits eligibility in AR 135-178 needs to be revised to clarify that an ARNG’s [Army National Guard] OTH [administrative discharge under other than honorable conditions] will not affect the disability compensation and health care benefits to which Guardsman are entitled on the basis of a previous honorable active service deployment.” Id. at 39.

In the August volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Colonel James F. Garrett, USA, Colonel Mark “Max” Maxwell, USA, Lieutenant Colonel Matthew A. Calarco, USA, and Major Franklin D. Rosenblatt, USA, Lawful Command Emphasis: Talk Offense, Not Offender; Talk Process, Not Results, Army Law., August 2014, at 4 (direct link to article). The article coins a new term: lawful command emphasis. “Lawful command emphasis is, in short, the appropriate actions commanders or staff members can take within the military justice process to ensure good order and discipline is maintained within the ranks.” Id. at 6.
  • Major Matthew E. Wright, USA, A Distinction with a Difference: Rule for Courts-Martial 304 Pretrial Restraint and Speedy Trial, Army Law., August 2014, at 22 (direct link to article). Major Wright’s article discusses “the spectrum of restraint [that] begins with no restraint and progresses through conditions on liberty, restriction, arrest, restriction tantamount to confinement, and finally, confinement. A progressively onerous array of collateral consequences linked to the severity of the restraint imposed provides strong incentives for commanders to remain as close to the beginning of this spectrum as possible.” Id. at 25.
  • Colonel James W. Herring, Jr., USA, A View from the Bench: Make the Routine, Routine (U.S. Army Legal Services Agency Trial Judiciary Note), Army Law., August 2014, at 41 (direct link to article). Colonel Harring’s article discusses issues with specifications (i.e., the specifications on the charge sheet), script (i.e., the trial guide), and suspenses (i.e., deadlines).

6 Responses to “Some notable recent military justice scholarship”

  1. rob klant says:

    Hardly fair, I think, to describe the disrespect for the protected nature of medical records as “institutionalized.”
    What is truly “institutionalized” are high standards of medical privacy which are virtually the same as the civilian community, even where a military commander is asserting some special interest in accessing the records of active-duty members.
    See here, generally:
    Rather, what I have found is widespread ignorance among commanders, members, and their lawyers of the proper interpretation and application of these standards.

  2. Zachary D Spilman says:

    Well rob klant, I feel comfortable using the term “disturbing institutionalized lack of respect for the protected nature of medical records” (my words) to describe “widespread ignorance among commanders, members, and their lawyers of the proper interpretation and application of these standards” (your words).

  3. rob klant says:

    I still don’t see the equivalence between widespread ignorance and an institutionalized lack of respect.
    Suffice it to say that any lack of respect there may be is not established as part of an official policy, custom, or practice.
    Compliance officials within DoD and the component services are working every day to enforce the standards and to investigate alleged violations.
    The danger as I see it is in people believing that non-compliance is somehow the norm and complacently accepting violations they observe. 

  4. Zeke says:

    @rob klant-

    The danger as I see it is in people believing that non-compliance is somehow the norm and complacently accepting violations they observe. 

    Is that not the reality of the situation?  Isn’t that the natural effect of “widespread ignorance?”  I get the debate regarding whether these effects are due to institutionslized disrespect or institutionalized ignorance.  We would feel better about ourselves if this shamefulness were due to ignorance (even if it is institutionally willful?) rather than patent lawlessness.  But, it’s worth noting that the effect is the same…  Further, an old maxim on culpability applies: ignorance of the law is no excuse.  

  5. Zachary D Spilman says:

    We might be of the same mind on this rob klant. What’s your take on footnote 9?

    Although a reasonable reading of both U.S. DEP’T OF ARMY, REG. 40- 501, STANDARDS OF FITNESS (14 Dec. 2007) (RAR, 4 Aug. 2011) [hereinafter AR 40-501] and the TRICARE OPERATIONS MAN. 6010.56-M (Feb. 1, 2008) [hereinafter TOM], available at, support the argument that commanders have the authority to order AGR and AD Soldiers to sign civilian medical release forms in their favor and/or turn over copies of their civilian PHI directly to commanders, the legality of these orders could be challenged. A counterargument is that the Department of Health and Human Services (DHHS) and the Department of Defense (DoD) purposely omitted such a specific requirement in the Standards for Privacy of Individually Identifiable Health Information, as well as the TRICARE regulations because neither the DHHS nor DoD wanted commanders to exercise such authority. Assuming for a moment the validity of this argument, this raises the question: what right does an O-3 commander have to invalidate the regulatory protections provided by the Secretary of the DHHS and/or the Secretary of Defense? Although the author believes such orders are valid and enforceable under current military law and regulation, the author found no case law specifically addressing the legality of such an order in this context. Consequently, the issue must be regarded as open to debate. Notwithstanding this fact, regulatory support for such orders can be found at AR 40-501, infra, paras. 8-3, 9-3, and the TOM, infra, ch. 17, sec. 2, para. 7.2.

    I’ll note that section 2, chapter 17 of the TRICARE TOM doesn’t appear to have a paragraph 7.2. However, paragraph 9-3b of AR 40-501 states:

    All RC Soldiers are responsible for providing the unit commander all medical documentation, including civilian health records, and completing the annual physical health assessment. Civilian health records documenting a change which may impact their readiness status will be placed in the Soldier’s military health record.

    It’s the first sentence of this paragraph that I find troubling (as military health records are themselves protected).

    There is certainly a legitimate command interest in the medical condition of a service member. But that interest is served by a medical provider (i.e., the command’s medical officer) providing a medical opinion, not by a commander (and any number of subordinate non-medical personnel) browsing through a service member’s medical records (including, perhaps, mental health records).

  6. rob klant says:

    First, in response to Zeke:  No, I don’t believe the reality of the situation is widespread non-compliance, despite the widespread ignorance of commanders and their lawyers, because typically their access to records is controlled by independent health care personnel.
    These personnel are well-trained and their performance is regularly monitored by a variety of sources (local/regional/service privacy officials, DHA Privacy Office, Inspectors General, HHS-OCR, and the Joint Commission).  Based on reports of audits, inspections, and complaints I have seen, I believe compliance is actually the norm and violations the relatively rare exception. 
    I am of the same mind with you on the order, Zachary D Spilman.   I also find it troubling and potentially illegal.  
    I think it could be possibly reconciled with the DoD/HHS regulations, if “documentation” were read narrowly to include only the findings/opinions of the provider inspecting the patient’s fitness/readiness and not all the underlying records (which would be largely incomprehensible to someone with no medical training anyway).
    Why commanders would put themselves in this situation is beyond me, assuming they have their own medical officers to perform the task.
    Ultimately it is self-defeating since, in my experience, it only drives members to find other ways to preserve their privacy, including failing to seek medical evaluation/treatment in the first place.
    At least this is the policy judgment embodied in the DoD 6490.08.  Though Major Getz highlights the instruction’s affirmative notification provisions (e.g. threat to self/others), it also contains provisions which DHA has interpreted as otherwise prohibiting the release of mental health information to commanders.  See the link in my original post.  
    And, even where affirmative notification is required, release of information is generally to be limited to the diagnosis, prognosis, course of treatment, etc. and not the underlying medical records.   So, I think commanders are especially vulnerable to claims of abuse of their authority if they rely on self-help measures such as orders to members in an attempt to overcome restrictions on the release of mental health information.
    A word to patients, though.   Privacy comes up at a price:  don’t expect your command to be any more sympathetic to or supportive of your condition than a family member would be if you keep them in the dark about it.    If you’re asking for some sort of accommodation, the initial burden is on you to satisfy their reasonable requests for information to support.  
    With authorization from you and in keeping with whatever limits you decide to set, your health care providers can help you to advocate for your needs.   Most commands are eager to meet with you and your provider to discuss your case and will act in good faith to find an accommodation which meets all interests involved.
    If you have any concerns about your command’s actions, though, contact the privacy officer at your local military treatment facility and seek free advice from a military lawyer.