Can Your Commander Access Your Medical Records? A Marine’s Guide to Privacy and ADSEP Boards

Have you been summoned to an Administrative Separation Board (ADSEP Boards) and worry that your medical records might be used against you? It’s a valid concern, but you’re not powerless. While your commander generally has the right to access your medical information under certain circumstances, there are important limitations, especially when it comes to mental health records. This guide will explain your rights, the relevant regulations, and how to protect your privacy in ADSEP proceedings.

Understanding MARADMIN 308/11

Can a Marine Corps Commander request access to a service members’ medical record without the service member’s consent?

The short answer is, yes, in most cases.  However, when a Commander sought medical records associated with the mental health counseling of a Marine, the legal advisor at an Administrative Separation Board ruled the privileged information could not be used against the Marine for the reasons below.

MARADMIN 308/11 Defines the Scope of Medical Record Disclosures

MARADMIN 308/11 addresses a “Commander[‘s] Access to Health Information.”  The policy sets forth when a commander can request access to a servicemember’s medical record.  Specifically, the commander or his designee may receive Protected Health Information (PHI) without the servicemember’s prior approval “if the information is needed to determine the impact of the member’s health status on the command’s readiness and military mission.”  Activities that qualify as military mission include: “1. Determining the member’s fitness, including compliance with standards and activities in specified DOD Directives, and similar requirements.  2. Determining fitness to perform any particular mission, assignment, order, or duty, including compliance with any actions required as a precondition to performance thereof.  3. Carrying out comprehensive medical surveillance activities.  4.  Reporting on casualties in connection with a military operations or activity according to applicable military regulations or procedures.  5.  Carrying out any other activity necessary to proper execution of the military mission.  6.  Medical appointment reminders concerning Armed Forces personnel are permitted to be shared with command authorities…”  

However, when the PHI is shared with the command, “any disclosure of PHI to command authorities must be limited to the minimum necessary to accomplish assessment of the impact of the member’s health status on the military mission.”  Additionally, “special rules apply to disclosure of PHI relating to mental health or substance abuse problems.  For these conditions providers ‘shall provide the minimum amount of information to satisfy the purpose of the disclosure.  In general, this shall consist of the diagnosis; a description of the treatment prescribed or planned impact on duty or mission, recommended duty restrictions, and the prognosis.”

The Patient-Psychotherapist Privilege Applies to ADSEP Boards

The MARCORSEPMAN states: “An administrative separation board functions as an administrative rather than a judicial body. Accordingly, in the board’s proceedings, other than with respect to privileges, the strict rules of evidence governing trials by court-martial are not applicable.”  Military Rule of Evidence 513 explains the general rule of the patient-psychotherapist privilege: “A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.”  There are exceptions to when the patient-psychotherapist privilege applies, such as “when [it is] necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission.”  

The Purpose of the Patient-Psychotherapist Privilege is to Encourage Honesty and Rehabilitation During Therapy and Treatment

The patient-psychotherapist privilege exists so patients can be open and honest with their therapist to obtain therapy and rehabilitate from trauma, mental health concerns, and address issues related to psychological needs.  Military Rule of Evidence 513 describes situations where confidential communications may be disclosed because they are not protected by the privilege: when the patient is dead; when the communication is evidence of child abuse or neglect; when federal or state law, or a service regulation imposes a duty to report information contained in a communication; when a psychotherapist or assistant to the psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person, including the patient; or if the communication clearly contemplates the future commission of a fraud or crime; when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission.

The purpose of the privilege is to encourage the patient to be honest with the therapist to effectuate lasting behavioral change.   

The MARCORSEPMAN Allows the Legal Advisor to Exclude Prejudicial Evidence and to Enforce Privileges

The burden is on Marine at the ADSEP Board or Board of Inquiry to demonstrate the evidence of her confidential communications is more prejudicial to her case than probative.  When Marines and their counsel can present evidence which shows a confidential communication was unlawfully disclosed and is being used against them at a hearing, the legal advisor to the board should be able to conduct a M.R.E. 403 equivalent balancing test.  When the probative value of the statement is outweighed by a danger of unfair prejudice, the legal advisor may lawfully exclude the evidence from being considered by the ADSEP Board members.

Your Privacy Matters: Contact Us Today

Military Law Center Attorneys Have Successfully Excluded Evidence of Privileged Communications

With over four decades of combined military justice experience, the attorneys at the Military Law Center have seen commands wrongfully receive privileged communications from the military medical clinics and hospitals.  With the proper legal representation, Marines have a better chance to stop their command from violating their rights.  When an entire administrative discharge board case is built upon this unlawfully obtained evidence, a legal advisor’s ruling to exclude evidence can win the whole case.

If you believe your administrative separation case deals with evidence unlawfully obtained from your medical record, our office offers a free consultation to help develop a strategy for success.  Additionally, for those who were separated from the Marine Corps at an ADSEP Board because the command used this type of evidence, our attorneys may be able to help petition the Board for Correction of Naval Records to correct this injustice!  Contact us online or call our office at 760-536-9038.