This article was first published in the Summer 2023 issue of On Watch.
By Kathleen Gilberd
In June of 2018, 21-year old Brandon Caserta, a sailor at Naval Air Station Norfolk, committed suicide. His family told reporters that he wrote to them saying he was constantly bullied and hazed by other sailors, and that he had informed his command he was depressed, but received no help. The family and supporters pressed for legislation that would make it easier for servicemembers to obtain mental health treatment.
This resulted in the Brandon Act, which was adopted in 2021 as part of the 2022 National Defense Authorization Act. The Brandon Act requires that the services provide a mental health evaluation if a servicemember reports a problem or seeks help through his command, but also allows members to seek help confidentially outside of their command.
More than a year passed. The Department of Defense (DoD) said that it was trying to find the best ways to put the Act into effect. Meanwhile, suicides continue to be a serious problem in the services. Small clusters of “unrelated” suicides occurred at a Navy base and aboard an aircraft carrier docked for maintenance. The Army expressed concern about its suicide rates, but as of this writing has still not promulgated a promised policy on suicide prevention.
Finally, on May 5, the Department of Defense (DoD) issued a policy in keeping with the Brandon Act: Directive-type Memorandum 23-005, “Self-Initiated Referral Process for Mental Health Evaluations of Service Members,” May 5, 2023 (whs.mil) . According to the Memorandum (DTM), it must be incorporated into DoD Instruction 6490.04, “Mental Health Evaluations of Members of the Military Services,” then allowing the Memorandum to expire effective May 5, 2024.
The policy section of the Memorandum states that:
Service members can initiate a referral process for an MHE [mental health evaluation] through a commanding officer or supervisor who is in a grade above E-5 on any basis, at any time, and in any environment.
The DoD fosters a culture of support to create an environment that promotes help-seeking behaviors and reduces the stigma for help-seeking in the provision of mental health care.
Service member patient rights and confidentiality are protected as much as possible, in accordance with requirements for confidentiality of health information pursuant to Public Law 104-191 (also known and referred to in this DTM as the “Health Insurance Portability and Accountability Act of 1996”), applicable privacy laws, and DoD privacy regulations, including DoDI 5400.11, DoD 5400.11-R, DoD Manual 6025.18, and DoDI 6490.08.
Attachment 3, Section 1.a clarifies this:
a. Service members:
(1) May request a referral for any reason or on any basis including, but not limited to, personal distress, personal concerns, and trouble performing duties and functioning in activities valued by the Service member that may be attributable to possible changes in mental health. Service members are not required to provide a reason or basis to request and receive a referral.
(2) May request a referral at any time and in any environment including, but not limited to:
(a) The continental United States;
(b) Outside of the continental United States;
(c) In a deployed setting;
(d) Whether or not in a duty status as a member of the Selected Reserve;
(e) Assigned to a temporary duty station; or
(f) On leave.
(3) May initiate a referral for an MHE by requesting such a referral from their commanding officer or supervisor who is in a grade above E-5.
(4) Will report mental health issues pursuant to DoDI 6025.19
(5) May request an MHE referral from their commanding officer or supervisor, who is in a grade above E-5, in response to a sexual assault. If the member discloses that the request for referral is in response to a sexual assault, the commanding officer or supervisor will follow the procedures in Volume 1 of DoDI 6495.02 in addition to referring the Service member to a mental health providerThus servicemembers do not have to reveal the reasons for their request for a mental health evaluation to the command, and the DTM should make it easier to obtain mental health care. Unfortunately, many servicemembers will be unaware of this provision, as will many commanders and supervisors. Their natural tendency to want to know more may lead to intrusive questions and pressure. And the promised protections of confidentiality are limited. Servicemembers who are armed with a copy of the Memorandum will be better situated to demand their rights.
Enclosure 3 also requires that, upon receiving requests for referrals, COs or supervisors must arrange for a mental health evaluation “as soon as practicable.” Hopefully this will offer a way around the sometimes month- or months-long wait for a behavioral health appointment.
Enclosure 3, Section 1.b. (2).(d) requires commanding officers or supervisors to provide special precautions if they determine that servicemembers are exhibiting dangerous behavior. In such cases, the COs’ first priority must be to ensure precautions are taken to protect the members and others before the evaluation (including an escort to the behavioral health office). In addition, “[i]f the Service member is exhibiting dangerous behavior, owing to concern of potential or imminent danger to self or others, the commanding officer or supervisor will follow safety and communication procedures for an emergency evaluation in accordance with DoDI 6490.04 [Mental Health Evaluations of Members of the Military Services].”
COs and supervisors are also required to reduce stigma for these referrals by treating them “in a manner similar to referrals for other medical services, to the maximum extent practicable.”
While the DTM can be very useful for members who are blocked from access to mental health care by members of their command or “screening” medics or corpsmen, the fact remains that nothing in any of the regulations prevents members from making their own appointment with a mental health provider, going directly to a behavioral health facility or, if in crisis, to an emergency room. Of course, as noted above, the wait time for appointments (outside of emergency room visits) can be lengthy, and many servicemembers are told they can’t make their own appointments, or that they have to go through the corpsman or medic or primary care doctor, or that they need permission from their sergeant or chief. And, indeed, senior enlisted often tell servicemembers that they cannot go to behavioral health without their permission. While untrue, these means of blocking appointments cause many servicemembers to back away, and the DTM will prove very helpful in these cases — if the member is aware of it.
Subsection c of the DTM requires that mental health providers:
(1) Administer an MHE as soon as possible and, when practical, provide the necessary care as clinically indicated following communication with the commanding officer or supervisor consistent with DoDI 6490.08 and this DTM.
(2) Follow all appropriate guidance in accordance with requirements for the confidentiality of health information pursuant to the Health Insurance Portability Accountability Act of 1996, DoDIs 6025.18 and 6490.08, DoD Manual 6025.18, and applicable privacy laws and associated DoD guidance. Disclosures to command are limited to:
(a) Confirming that the MHE was provided pursuant to the referral.
(b) A disclosure authorized by DoDI 6490.08.
(c) Any other disclosure for which the Service member provided authorization in accordance with DoD Manual 6025.18.
and that they:
(5) Assess the Service member’s medical readiness for duty with specific consideration for mental health, risk of harm to self or others, symptom severity, prognosis for return to duty, and risk of decompensation, aggravation, or further injury if participation in occupational activities continues. When a behavioral health profile is warranted, mental health providers will write it in accordance with the appropriate documentation and guidance.
Confidentiality of the DTM’s process for requesting help and resulting mental health evaluations are complicated. COs and supervisors are to give the health care provider the members’ names and contact information, information about the reasons the servicemember requested the referral if voluntarily given by the member, and “additional information that may be relevant and necessary to the health and welfare of the Service member or mission accomplishment.” (Attachment 3, Section 1.b.(2).(b)) While the same section tells COs or supervisors to “protect Service members’ privacy to the extent possible,” this provision gives COs or supervisors wide latitude in determining what information is “relevant and necessary.”
According to Attachment 3, Section 1.b.(5) of the DTM. COs or supervisors may not ”request information from a mental health provider regarding the results of the MHE except for information that may be disclosed to command in accordance with this DTM or DoDI 6490.08 [Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members].”
A look at DoD 6490.08 shows that there are many circumstances under which health care providers are to release information to COs. Enclosure 2, Section 1.b of the Instruction requires disclosure where, among other things, the healthcare provider believes the member poses a serious risk of harm to him/her self or to others; poses a serious risk of harm to the mission (here the Instruction notes that “[s]uch serious risk may include disorders that significantly impact impulsivity, insight, reliability, and judgment”); or has an acute medical condition that interferes with his or her duty;
In addition, the provider must release information to the CO when the examination was a commanddirected mental health evaluation pursuant to DoD Directive 6490.1 or where there are other special circumstances in which proper execution of the military mission outweighs the interests served by avoiding notification as determined on a case-by-case basis by a health care provider (or other authorized official of the medical treatment facility involved) at the O-6 level or equivalent level or above or a commanding officer at the O-6 level or above.
These exceptions are sufficiently broad and subjective that disclosure of mental health information would be permitted for a wide range of diagnoses or symptoms. Health care providers are to give the minimum information required to meet the purpose of the disclosure. The Instruction notes that this generally includes the diagnosis, description of proposed treatment, impact on duty or mission, recommended restrictions on duty or applicable duty limitations, prognosis, and danger of harm to self or others, as well as ways the command can support or assist treatment. While this may exclude some discussion of symptoms, it still allows broad disclosure of the servicemember’s situation.
The Instruction does require, at Enclosure 2, Section 3, that COs protect the member’s privacy, and that “[i]nformation provided shall be restricted to personnel with a specific need to know, that is, access to the information must be necessary for the conduct of official duties.”
Another disclosure and confidentiality problem may be found in DoD Instruction 6025.19, “Individual Medical Readiness Program,” with which the Directive-Type Memorandum requires compliance. Section 1.2.b of this Instruction states that individual medical readiness is, among other things, a responsibility of all individual servicemembers, who must “report medical issues (including physical, dental and mental/behavioral health) that may affect their readiness to deploy, ability to perform their assigned mission, or fitness for retention in military service to their chain of command.”
The Instruction’s Section 4.d requires that during each military periodic health assessment, servicemembers are informed of:
the requirement to report significant health information to their chain of command and facilitate disclosure of significant health information by any non-DoD healthcare provider to a MHS DoD healthcare provider, and ensure compliance with such. All Service members will disclose to their MHS DoD healthcare provider and to their command all medical encounters (including encounters for physical, dental, and mental/behavioral health) with a non-DoD healthcare provider that would directly impact the Service member’s IMR status and will provide releases of information as necessary to facilitate receipt of medical documents from such encounters for entry into their military medical record.
The Brandon Act and the DTM may prove to be very useful for members whose access to mental health care is improperly blocked by command or “screening” medical personnel. At the same time, it is important that they understand the limitations on confidentiality and the fact that efforts to provide confidentiality and de-stigmatize requests for help and subsequent treatment may still lead to fairly broad knowledge within their commands and the possibility of harassment. Counselors and attorneys may help to prevent this by ensuring that clients have copies of the DTM and/or by communicating with COs or supervisors about its provisions and the statutory requirements underlying it. Should improper disclosures to and within the command occur, or should members face harassment, outside legal assistance may stem this through communication with the command or, if necessary, complaints under Article 138 of the UCMJ or other complaint provisions. (For example, harassment is now grounds for a complaint through the Military Equal Opportunity system or to an Inspector General.)
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.
