Military Patients’ Rights

by | Oct 8, 2021 | GI Rights & Counseling, Memos, Resources

Military patients’ rights

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October 8, 2021
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Updated September 2021

By Kathleen Gilberd

Counselors and attorneys hear many accounts about denial of military medical care and inadequate care—soldiers whose serious health problems are never evaluated, incorrectly diagnosed, or mistreated. Servicemembers generally feel they have little recourse when denied care or given inadequate care. But Department of Defense policies provide some protection of patients’ rights which can be valuable in challenging denial of access to medical care or quality of care. Unfortunately, these policies are largely unknown to servicemembers and their commands, and often to military medical personnel as well.

One of the central pieces of these policies is DoD Instruction 6000.14, “DoD Patient Bill of Rights and Responsibilities in the Military Health Care System (MHS),” promulgated on September 26, 2011, and incorporating Change 2 of April 3, 2020. [DoDI 6000.14, “DoD Patient Bill of Rights and Responsibilities in the Military Health System (MHS),” September 26, 2011; Incorporating Change 2 on April 3, 2020 [1]] It cancels a former version of the regulation and is designed to implement the civilian “Consumer Bill of Rights and Responsibilities” issued by the President’s Advisory Commission on Consumer Protection and Quality in the Health Care Industry in November of 1997.

In its policy summary, the Instruction states that:

“MHS patients have explicit rights about information disclosure; choice of providers; health plans; access to emergency services; participation in treatment decisions; respect and nondiscrimination; privacy and security of personally identifiable information (PII), complaints, and appeals; as well as specific responsibilities to participate in their own health decisions.” (DoD 6000.14, para. 4.a)

To this writer’s knowledge, the individual services do not have parallel regulations, though some rights are covered in service regulations on medical care and the disability evaluation system or, in some services, discharge regulations. Some bases and medical facilities have created their own bill of rights documents, sometimes incorporating parts of the DoD Instruction and occasionally expanding on it. For example, some Army base policies require that commands follow the recommendations of medical profiles for duty limitations, which are otherwise not binding.

Among the most significant rights in the DoD Instruction are:

Access to Medical Care and Explanations of Care

Enclosure 2 to the Instruction states, at part 1.a, that patients have the right to quality care and treatment, including access to specialty care. This right is apparently limited to care “that is consistent with available resources and generally accepted standards.” As readers probably know, GI’s are often denied access to care by their commands (commonly by senior enlisted personnel) or by medics/corpsmen. Citing to the Instruction’s summary and this subsection may be helpful in cutting through such denials.

Enclosure 3, part 2.b, requires that each MTF/DTF (medical treatment facility/dental treatment facility) “provide beneficiaries with the right to a choice of healthcare providers that is sufficient to ensure access to appropriate, high-quality healthcare.” That section also says, at subsection (4), that beneficiaries will “be assigned or allowed to select” a primary care manager, but indicates that there is no guarantee a requested doctor will be assigned.

While military health care personnel are usually willing to discuss diagnoses, etc., their willingness to ensure patients can understand their terminology is sometimes limited. Part 1.e of Enclosure 2 states that patients are entitled to an explanation of their diagnosis, treatment, procedures and prognosis in “easily understandable terms.” For vulnerable patients, whose capacity for decision-making may be affected by their medical condition, the information should be given to a designated representative.

Privacy and Security of Health Information

Military medical facilities are required to “provide MHS beneficiaries with the right to communicate with healthcare providers in confidence, to have the privacy and security of their protected health information maintained to review and copy their own medical records, and to request amendments to their records….” (Enclosure 3, part 2.f) These important rights are subject to exceptions covered in 45 CFR parts 160 and 164, DoD Manual 6025.18-R, DoD 8500.01, and the DoD “Medical Management Guide.” It is worth noting that medical personnel and commands frequently ignore these rights.

Discrimination

The Instruction requires that all care be respectful, considerate, and free from discrimination, stating that the military health system “does not discriminate in the delivery of healthcare services or in information and enrollment practices based on race, ethnicity, national origin, religion, sex, age, mental or physical disability, genetic information, sexual orientation, or source of payment.” (Enclosure 3, part 2.e.) Anecdotal experience suggests this policy is largely ignored. Presumably the internal and external complaint procedures discussed below could be used for discrimination complaints.

Second Opinions

The right to a second opinion is not discussed specifically in the Instruction, though it is arguably implicit, and most medical treatment facilities accept it as a right. The difficulty here is that a second military evaluator is often swayed by the opinion of the first, so that obtaining a second military opinion may simply reinforce the original diagnosis or proposal for treatment. Some counselors and attorneys recommend an independent civilian evaluation (as through the Civilian Medical Resources Network, or CMRN) either before or instead of a second military opinion. While this has little official weight with the military, a well-thought-out civilian evaluation may affect the opinion of the second military evaluator or, in some cases, that of the first.

Informed Consent and Refusal of Treatment

At part 1.f of Enclosure 2, the Instruction sets out patients’ right to “any and all necessary information in non-clinical terms to make knowledgeable decisions on consent or refusal of treatment….” Enclosure 3, part 2.d, requires that medical treatment facilities ensure patients “have the right and opportunity to participate fully in all decisions related to their healthcare, subject to readiness requirements for active duty servicemembers.” Here, too, facilities are required to provide information in easily understood terms. Enclosure 3, part 2.d.(1).(a) requires that healthcare providers discuss all treatment options with patients, “including the option of no treatment at all….” And part 2.d.(1).(f) states specifically that mentally competent patients must be given the opportunity to refuse treatment. However, part 2.d concludes with a warning that active-duty members’ rights under this part are “subject to responsibilities of the member to comply with Service requirements for military readiness and [the UCMJ].”

Military physicians tend to know that patients may refuse courses of treatment, but they do not always convey this information to patients, and sometimes press for their preferred treatment as the only, or only safe, course. Where patients refuse treatment, they run the risk that it will affect their doctors’ assessment of their cases or inclination to refer cases to medical evaluation boards. Commands may not be knowledgeable about the right to refuse treatment, so that GI’s are occasionally ordered to undergo a particular course of treatment. Some practitioners and counselors encourage clients to set out in writing the reasons for their objections to particular treatments, and to make these writings a part of their medical records.

The section of the Instruction covering the “responsibilities” of patients requires them, among other things, to cooperate with treatment plans. However, this section also states that failure to follow patient responsibilities does not warrant withholding of medical treatment.

It is worth noting that the right to refuse treatment may nonetheless have adverse consequences., though these are not discussed in the Instruction. In some cases, particularly where the refusal is deemed “unreasonable,” military and VA disability benefits may be unavailable. And commands may take administrative or even disciplinary action where the refusal is not “reasonable.”

The Marine Corp, for example, allows administrative discharge where the refusal of treatment interferes with Marines’ duty. Convenience of the government discharge is permitted for reasonable treatment refusals, at commanders’ discretion, under Marine Corps Separation and Retirement Manual para. 6203.7. Discharge here would most likely fall under the category of physical condition not a disability. If a physical evaluation board review determines that refusals are unreasonable or involve intentional misconduct or willful neglect, Marines may face separation for unsatisfactory performance under para. 6206 or for misconduct under para. 6210. Administrative reduction in rank is also permitted for unreasonable refusal.

Army commanders are provided guidance for treatment refusals in AR 600-20, section 5-4. This lists a number of situations in which treatment may not be refused, ranging from vaccinations to emergency medical care required to save the member’s life, health or fitness for duty. Where members refuse treatment not covered in section 5-4, medical boards must be conducted to determine the need and risks of the proposed treatment, whether the treatment will enable the member to return to duty, and whether the refusal is reasonable or unreasonable. If the medical boards find the treatment appropriate, and the members still refuse, cases are referred to the Army Surgeon General for approval or disapproval. If the Surgeon General approves the board’s findings, and the members continue to refuse, their cases will be referred to their special court-martial convening authorities, who will formally order the members to submit to the treatment. If the members continue to refuse at this point, commands may take disciplinary action or process the members for administrative separation. (Special consideration is given to members who refuse treatment for religious reasons, under section 5-6.)

Refusal of vaccinations

Mandatory vaccinations are treated separately than medical treatment, and refusal may have more serious consequences. Immunizations may be deemed mandatory by the military when approved by the Food and Drug Administration (FDA) or authorized by presidential waiver. This issue is not discussed in the Instruction, but is covered in other service regulations, particularly Joint Instruction AR 40-562, BUMEDINST 6230.15B, AFI 48-110 IP, and CG COMDINST M6230.4G, “Immunization and Chemoprophylaxis for Prevention of Infectious Disease.” The policy allows for limited medical and administrative exemptions, including religious exemptions which vary slightly from service to service and are decided by a member’s command in consultation with medical personnel and a chaplain. In the past, refusal of mandatory vaccinations has often resulted in less than honorable discharge or (particularly in the case of anthrax vaccinations) courts-martial with punitive discharge. (See the article on vaccination policy in the Fall, 2021, issue of On Watch).

Grievances

Few servicemembers know that they can file grievances about refusal of access to military medical care or the course of that care. Some know that larger medical facilities have ombudsmen, and that some of them will advocate aggressively for patients, but rights beyond that are largely unknown. DoD 6000.14, however, sets the right to file grievances out clearly at Enclosure 2, part 1.g:

Patients have the right to make recommendations, ask questions, or file complaints to the MTF/DTF Patient Relations Representative or to the Patient Relations Office. If concerns are not adequately resolved, patients have the right to contact The Joint Commission at 1-800-994-6610.

Enclosure 3, part 2.g, covers the medical system’s responsibilities for patient complaints and appeals. Facilities are required to maintain a “rigorous” system of internal review and an independent system of external review, though these are not discussed in any detail in the Instruction except for denial of services.

Complaints Outside the Box

While the DoD Instruction mentions internal and external grievance procedures, these are by no means the only methods available to aggrieved patients. In some cases, military physicians may be asked to intervene when problems arise with other physicians involved in a case. While military medical professionals are not known for strong advocacy for patients, the DoD Instruction does state that the medical health system “shall not penalize or seek retribution against” health care workers who advocate for their patients. Encl. 3. part 2.d.(3).

In some cases, inquiries to health care providers or the commanders of medical treatment facilities by counselors or attorneys may be useful. Warnings about the possibility of formal complaints may sometimes be as useful as the complaints would be.

Complaints under Article 138 of the UCMJ cannot be used for grievances against personnel outside a member’s chain of command, and so do not normally apply to health care personnel. The Navy, however, allows an exception to this under Navy Regulation 1150. This reg utilizes procedures quite similar to Article 138’s, covered in chapter 3 of the Manual of the Judge Advocate General (JAGMAN) when a complaint is made about personnel outside the member’s own chain of command.

Although servicemembers should not ‘jump the chain of command’ with complaints made directly to the service’s Surgeon General, nothing prevents an attorney, counselor or family member from bringing inadequate treatment to a Surgeon General’s attention. Congressional inquiries, particularly if framed so that the Member of Congress is asked to raise specific questions or requests, can also be helpful.

Military patients’ privacy rights

Privacy and confidentiality of military medical records and information have long been of concern to servicemembers and those who assist them. For decades, records of medical evaluation and treatment were easily available to commanding officers and others in a patient’s command. Since many commands consider medical problems a weakness, malingering or cowardice, and since diagnoses of medical problems have often been used against whistleblowers and those seen as troublemakers, this posed many problems.

In the last couple of decades, however, total command access to medical records and information has given way to some limited confidentiality, and to an understanding that the Privacy Act and HIPAA have application to the military. Those of us trained in military law some years ago may not be familiar with more recent regulations and policies. Many commands are unfamiliar with or resentful of these changes. It is not uncommon for sergeants to demand to see medical records and for commanders to assume they should have full access to medical files.

The section above notes briefly that DoD Instruction 6000.14 allows military members to “communicate with healthcare providers in confidence” and “have the privacy and security of their protected health information maintained,” subject to restrictions in other regulations. (Encl. 3, part 2.f). That Instruction also outlines the right to “reasonable safeguards for the confidentiality, integrity, and availability of their protected health information, and similar rights for other PII [Protected Identifiable Information], in electronic, written, and spoken form.” (Encl. 2, part 1.c) This section discusses those privacy rights in more detail, with an emphasis on information concerning mental health.

HIPAA and Privacy Rights

DoD Instruction 6025.18 of March 13, 2019, “Health Insurance Portability and Accountability Act

(HIPAA) Privacy Rule Compliance in DoD Health Care Programs[2]” and an accompanying Manual, DoDM 6025.18, “Implementation of the HIPAA Privacy Rule in DoD Health Care Programs[3]”

set out much of the current policy. They require that DoD entities and its business associates must follow the HIPAA rules on privacy and breach of privacy, which are described in some detail in the Manual. The Instruction states that DoD and business associates must comply with related federal requirements, including 5 USC 552a (the Privacy Act), DoD regulations implementing the Act and other federal rules.

But HIPAA and privacy rights are still limited in the military. The Instruction also states that DoD and business associates:

Must, as authorized by and consistent with the procedures pursuant to DoDM 6025.18, ensure the availability to appropriate command authorities of health information concerning military personnel necessary to ensure the proper execution of the military mission. In doing so, DoD covered entities and business associates must follow the policies regarding mandatory and prohibited release of PHI [individually identifiable health information] pursuant to DoD Instruction 6490.08 to dispel stigma associated with seeking mental health services, substance misuse education services, or both. (Section 1.2.a.(3))

When medical information is released, covered individuals (except inmates) should have the right to notification of the release, with an explanation of their rights and the releasing entity’s obligations; the releasing health care provider or facility must make a good faith effort to obtain acknowledgement of receipt. Members may authorize the release of information, under part 4.2 of the Manual; part 4.3 covers their right to object to disclosures. There are, of course, exceptions for such things as emergency circumstances, and part 4.4 sets out additional situations for unauthorized disclosure, including some releases to public health authorities, some releases concerning victims of abuse, neglect or domestic violence, releases for judicial and administrative proceedings, etc.

Under part 5.2 of DoD 6025.18, an individual may request restrictions on permitted use and disclosure of records. The covered entity, however, has discretion to deny the request. If the entity agrees to the restriction, it may not violate the agreement except in cases where emergency treatment is required and the restricted information is needed in that treatment. Requests for restriction should be submitted to the person or office obliged to comply with the restriction.

Handling Breaches of Privacy

The DoD Manual sets out requirements for DoD entities where a breach of confidentiality has occurred. All breaches must be reported to the Defense Health Agency [DHA] Privacy Office within 24 hours of discovery, and the entity must also follow other “breach response and reporting requirements” described in Part 6-2.b.(1) of the Manual. The health care provider or entity must conduct an assessment of the nature of the breach, determine whether it is also a breach under Health and Human Services [HHS] provisions, and decide what notification is required and what mitigation or response is needed. The DHA Privacy Office reviews this assessment and makes a final determination on it. Normally, notification of the individual whose privacy is breached must be written, in plain language, and include a brief description of what happened and when, when it was discovered, what type of health information was involved, and any steps the person should take to protect himself or herself from harm due to the breach. The notification must also describe what is being done to investigate the breach, mitigate any harm it caused, and protect against future breaches. Delays in notification may be permitted when investigating law enforcement personnel tell the DoD entity that notification would impede investigation or harm national security. Where the DHA Privacy Office determines that the breach qualifies as an HHS breach, it must report that fact directly to the secretary of HHS, with a copy to the affected DoD entity.

Readers may be surprised to learn of these provisions, since they are frequently unknown to or ignored by providers and medical clinics. Where clients are willing, pressing for enforcement may be an important lesson to military health entities.

Considerations for Mental Health Records and Information

The privacy and confidentiality of mental health records pose some of the most serious problems for servicemembers. The military itself acknowledges that there is a considerable stigma attached to seeking mental health care or having a mental health condition. When commands learn of either, members may face serious harassment, formal and/or informal discrimination, and real damage to their careers. By way of a painful example of harassment, a command at Camp Pendleton used to require its members to hand carry a chit to and from any mental health appointment; the chit was attached to a teddy bear. (This practice stopped when Navy Times learned of and publicized the behavior.)

In addition to the regulations discussed above, releases of mental health information by health care providers and facilities to command personnel are covered in DoD Instruction 6490.08 of August 17, 2011, “Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members.[4]” This Instruction applies to mental health evaluations and treatments requested by members or referred by other medical care providers, as well as voluntarily-sought drug and alcohol abuse education (as distinguished from mandatory treatment). It does not apply to command-directed mental health evaluations [CDEs], which are covered in DoD Instruction 6490.04 and have the effect of an order. The command notification Instruction gives some emphasis to the need to avoid stigma. It makes a general statement that healthcare providers will not notify commands of mental health evaluations or treatment except in specific circumstances. (Enc. 2, part 1.a) The Instruction requires commanders to protect the privacy of information and restrict it to those with a need to know, i.e., “access to the information must be necessary to the conduct of official duties.” (Encl. 2, part 3) The vagueness of the language here is worth noting.

Unfortunately, DoD 6490.08 contains more exceptions than privacy requirements; these are covered in Encl. 2, part 1.b. Healthcare providers should notify commanders when evaluation or treatment shows a serious risk of harm to self or others, or to a specific military operational mission (here the instruction notes that the risk would include disorders significantly affecting impulsivity, insight, reliability or judgment); a significant risk to mission accomplishment for special personnel such as members of the Personnel Reliability Program; provision of inpatient care (as admission or discharge are considered “critical points in treatment”); acute medical condition interfering with duty or acute medical retreatment that impairs ability to perform assigned duties; entrance into or discharge from substance abuse treatment programs, whether inpatient or outpatient; command-directed evaluations; or “other special circumstances in which proper execution of the military mission outweighs the interests served by avoiding notification” in the opinion of a healthcare provider or other authorized medical official at the O-6 level or above. This writer is hard-pressed to think of more than a few conditions which cannot be shoe-horned into one of these exceptions, though challenges to the release of information may be possible with outside psychiatric and legal advocacy.

Fortunately, health care providers are instructed to provide commands with the minimal amount of information needed to meet the purpose of the disclosure. This would include the diagnosis, description of planned treatment, impact on duty or mission, recommended duty restrictions or limitations, prognosis, implications for safety of the member or others, and “ways the command can support or assist the Service member’s treatment.” (Encl. 2, part 1.c)

Army policy on privacy of medical information is generally in accord, offering detailed opportunities to release information to non-medical personnel. AR 40-66[5], of June 17, 2008 (with Rapid Action

Revision of January 4, 2010), “Medical Record Administration and Health Care Documentation” refers to DoD regs allowing military personnel with an official need to know to have access to a member’s records for specific purposes. (Chapter 2, part 2-4) These include, among other things, release for judicial or administrative proceedings, to avert a serious threat to health or safety, to determine fitness for duty or for any particular mission or assignment. Medical professionals are permitted to release rather general medical profiles to commands, and to release minimum necessary information to avoid a “serious and imminent threat to health or safety of a person, such as suicide, homicide, or other violent action.” (Chapter 2, part 2-4.a.(2).(a))

Special Rules for Substance Use Disorder Records

There are special provisions for confidentiality of substance abuse disorder records made by federally assisted substance use disorder programs; these are set out in 42 CFR Part 2. Where those rules apply to private health information of a DoD covered entity, the entity must follow both sets of rules. If one set prohibits a release, and the other does not, the prohibition applies. The DoD regulation distinguishes confidential records of substance abuse “education” from records made when a member has entered or been discharged from an inpatient or outpatient treatment program. (DoD 6490.08, Encl. 2, part 1.a and 1.b.(7))

Obtaining Medical Records

Traditionally, obtaining copies of one’s own medical records has been a hit or miss proposition. Some servicemembers requesting their records from medical clinics have been told (usually by clerks, medics or corpsmen) that they are not entitled to their own records, though in other cases the records are released without difficulty. New measures for viewing one’s medical records electronically are now in place (though these are beyond this writer’s Luddite understanding).

DoD regulations are clear that members have the right to see and obtain copies of their medical records; this is set out in the DoD Manual, part 5-3, and elsewhere. Records should normally be provided within 30 days of a request, with a possible extension of 30 days if the initial deadline cannot be met; in such cases, the facility or provider must explain the reasons for the delay to the requester. Where servicemembers encounter difficulties or refusals of records requests, or with large medical facilities, it is sometimes advantageous to request the records with DD Form 2870, “Authorization for Disclosure of Medical or Dental Information,” This form is HIPAA-compliant, and sufficiently official that it is usually treated with respect by record-holders.

Some grounds exist for denial of requests, such as psychotherapy notes; information “compiled in reasonable anticipation of, or for use in,” litigation or administrative action; some quality assurance information; inmates’ PHI if the information would jeopardize health, rehabilitation, etc., of the requester or others; research treatment records while the research is ongoing; records denied under exceptions to the Privacy Act, such as classified records and certain investigative material; and records where confidentiality has been promised to a non-health-care worker and the release would likely identify him or her. Some other records may be denied, but with the right to have them reviewed by an independent DoD health care provider.

The Army affirms DoD’s requirement that members have access to their records in AR 40-66 at Chapter 2, part 2-3.a, which requires that requested records be made available to the member within 30 days. Requests must be in writing, and may use the same DD Form 2870; if the form is not available, the member may submit a letter describing the records or information. The reg notes that, if a physician or dentist feels the information could adversely affect the patient’s physical, behavioral or emotional help, the member may be required to name a medical professional to receive the records. The Civilian Medical Resources Network may be helpful in these cases.

Complaints

The military purports to take violation of confidentiality and privacy rights seriously. Military personnel who violate these rights may be subject to disciplinary or administrative action, with other sanctions available for DoD civilian employees and contractors.

When a member feels that these rights have been violated, the DoD Manual sets out remedies, though these are not the only ones available. Part 7.2.a of the Manual states that the member may file a HIPAA complaint with the DoD entity involved, with the DHA Privacy Office, or with HHS. The Defense Health Agency has an obligation to make sure that information on how to file HIPAA complaints is available to military personnel. Health and Human Services HIPAA complaint forms may be found on the HHS website.

DoD entities receiving HIPAA complaints from HHS are required to send them to the DHA Privacy Office within five days of receipt, along with any relevant documentation. (Part 7-2.a.(2).(b)) That office serves as the liaison for all HIPAA complaints against DoD agencies or offices which are submitted through HHS. When the DHA Privacy Office receives a complaint from an individual or from HHS, it must “initiate, coordinate and monitor” an investigation and assign an investigation suspense date.

Once a DoD covered entity has finished its own investigation, it must forward the report of investigation to the local HIPAA privacy officer, who in turn sends it to the DHA Privacy Office for review. When the investigation is considered complete, that office provides the complaint resolution to HHS or the individual. The Manual also notes that a member may make a complaint directly to HHS under 45 CFR 160.306. (The regs are not clear on whether the member may make separate complaints to both DoD and HHS.)

The DoD Manual also states that a covered entity may not “intimidate, threaten, coerce, discriminate against, or take other retaliatory action” against one who files a HHS complaint, or testifies or assists in an investigation, hearing etc., regarding compliance, or in good faith opposes an act or practice made unlawful by the Manual. (Here, the manner of opposition must be reasonable and must not itself involve any improper disclosure of PHI.) (Part 7.2.b)

AR 40-66, at part 2-3, outlines complaint mechanisms for Army personnel:

“ (j) Individuals may file a complaint when they believe that PHI relating to them has been used or disclosed improperly; that an employee has improperly handled the information; that they have wrongfully been denied access to or opportunity to amend the information; or that the entity’s notice does not accurately reflect its information practices. All such complaints must be in writing.

“(k) The Freedom of Information Act/Privacy Official is the primary point of contact for

individuals to file complaints pursuant to this policy.

“(l) As stated in the NOPP, individuals may also complain to the HHS if they believe their privacy rights have been violated. If an individual chooses to file a complaint with HHS, the complaint must— 1. Be filed in writing, either on paper or electronically; 2. Name the entity that is the subject of the complaint and describe the actions that have allegedly been violations of the privacy standards; and 3. Be filed within 180 days of when the complainant knew or should have known that the violation occurred.

“(m) All workforce members are prohibited from retaliating against individuals filing a complaint or requiring individuals to waive their rights to file a complaint with the HHS as a condition of the provision of treatment, payment, enrollment, or eligibility for benefits.”

It is noteworthy that, under the DoD Manual, part 5.5, an individual has the right to an accounting of disclosures of PHI for six years preceding the request. This sounds promising, but the section includes a number of exclusions, such as disclosure to carry out treatment, payment and healthcare operations, to persons involved in the individual’s care or other notice purposes provided in paragraph 4.3; for national security or intelligence purposes, incident to a disclosure otherwise permitted or required by the Manual per paragraph 4.5.d.

Unfortunately, the regs do not discuss any complaint procedures other than HIPAA-type complaints to DoD or HHS. Where a member wishes the matter to be kept as private as possible, a request mast or use of the commander’s open-door policy may be used to ask a commanding officer to deal with the offender and perhaps reinforce the general need for privacy of medical information. Discussion with medical facility ombudsmen may also be helpful. If non-medical command personnel in the member’s command are responsible for the improper release, a complaint under Article 138 of the UCMJ may be appropriate. Particularly if the complaint involves medical personnel, the 138 may be rejected on the grounds that another appeal/complaint procedure is available, though this may still be worth a try. (A discussion of Article 138 complaints is available on the MLTF website[6].) Congressional inquiries can be helpful, particularly if the Congressional office is given information about the military’s privacy policies. Complaints to an Inspector General may also be appropriate, particularly if the member feels that the breach of privacy was a reprisal for whistleblowing or another protected communication, or if he or she faces reprisals for the complaint itself.

The medical privacy regs are not helpful about the relief which may be sought, aside from mentioning “mitigation” and making it clear that an offender may be subjected to disciplinary or administrative action. But what of the servicemember whose co-workers or superiors are now aware of his or her medical or psychological condition? In an HIV breach of privacy case some years ago, the member asked for a public apology during formation from the offender, as well as a full-command briefing on medical privacy and on the realities and stereotypes about HIV. Remedies of this sort may be very helpful, though they cannot undo the disclosure. Where private information has become too widespread, nothing prevents a member from requesting a transfer to another unit or command. When approaching these cases, it is important to help the member think about the remedies that would be most helpful.

Kathleen Gilberd is a legal worker in San Diego, handling discharge review and military administrative law cases. She is the executive director of the Military Law Task Force and a member of the board of directors of the GI Rights Network.

  1. https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/600014p.pdf?ver=2020-04-03-132320-747 ↑

  2. https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/602518p.pdf?ver=2019-03-13125803-017 ↑

  3. https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/602518m.pdf?ver=2019-0313-123513-717 ↑

  4. https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/649008p.pdf ↑

  5. https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r40_66.pdf ↑

  6. https://nlgmltf.org/programs-and-services/military-law-library/memos/ ↑