A noteworthy Army case

In R.C. v. Hynes & Coleman, __ M.J. ___ (A. Ct. Crim. App. 2025) the court has denied a writ seeking to reverse the military judge's decision to release "Mellette records" to the defense. In the process, the Court discusses post-Mellette changes to the rules and exposes some communication difficulties.

When the MJ decided the defense could have the "Mellette records"

The military judge then drafted an order to the Womack Army Medical Center (WAMC), specifying the information to be released. The order also directed WAMC to put the responsive information in a memorandum rather than releasing AV's actual mental health records.

An initial submission from WAMC was provided to the military judge. After discovering the records in this submission were not sealed, were not in the requested memorandum format, and appeared to contain confidential psychotherapist-patient privileged communications, the military judge immediately halted any further review of the records. After soliciting input from the parties and AV's SVC, the military judge returned the entire initial submission back to WAMC.

The military judge then issued a second order to WAMC records personnel, requiring the production of a "list" of AV's "mental health diagnoses;" "prescriptions related to such diagnosis or diagnoses;" and "the dates of any mental health appointments." (emphasis in original). Like the initial order, the memorandum requested from WAMC was to be "printed, sealed, and available for collection by [government counsel]." (emphasis in original). To ensure privileged records were not inadvertently disclosed, the military judge further ordered that the "copies of actual mental health records SHALL NOT be provided ." (emphasis in original).

Shortly thereafter, the military judge received a second submission in a sealed envelope from WAMC containing AV's actual mental health records. This second WAMC submission was still not in the memorandum format directed by the military judge's order.

However, based on the organization and grouping of the records, the military judge was able to determine that one, and only one, distinct group of records appeared to contain information that was privileged under Mil. R. Evid. 513. In his initial look at the records, the military judge stated he reviewed only "one of [the] notes" and immediately "ceased [to] review" anything else in a distinct group of records because they appeared to contain privileged communications. Because of this ability to discern a distinct grouping, the military judge was able to separate the second submission into two distinct categories: (1) the Mellette records which were not protected under Mil. R. Evid. 513; and (2) records containing confidential communications [hereinafter "privileged records"].

We've seen a few earlier cases where the military judge has taken steps, in a written order, to limit what the MTF produces, how it is delivered, and to whom. R.C. is a more recent attempt, valiant even, which someones (sic) at the MTF didn't get. Where was the MTF legal advisor in this? Can the SGs and JSC and whoever get together to establish a procedure to go in the MCM on how Mellette-Records are to be gathered, secured, and transmitted?

Before releasing the "Mellette records" to the defense the military judge "provided a copy to AV's SVC. The military judge directed AV's SVC to review the records and "let me know with specificity (highlighting) if you believe anything in these records contains [Mil. R. Evict.] 513privileged information."

The SVC's response was a renewed opposition to releasing any information and a request for the MJ to recuse himself.

. . . .  The what? Oh, what is the effect of "Executive Order 14,130, 89 Fed. Reg. 105,343, 105,364 (December 20, 2024) [Exec. Order 14,130]?

Does this EO abrogate Mellette and CAAF's holdings? The MJ said it doesn't, ACCA agrees with the MJ--what might CAAF say?

The AV argues Exec. Order 14,130 expanded the scope of Mil. R. Evid. 513 in such a way that the CAAF's central holding in Mellette—that appointment history, diagnoses, and prescriptions or treatments are not privileged—has been abrogated. We disagree.
. . .
​After the CAAF decided Mellette, the President signed Exec. Order 14,130, codified as the "2024 Amendments to the Manual for Courts Martial," which became effective on 20 December 2024, and slightly modified the language of Mil. R. Evid. 513. The amended text of Mil. R. Evict. 513(a) now states: 

A patient has the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication, including records of such communications, 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 diagnosis or treatment of the patient's mental or emotional condition.

Despite the SVC's urging, we read this new language, approved by the President, as a mere clarification that the privilege in Mil. R. Evid. 513 also covers a record documenting a "confidential communication" made orally or in writing between the patient and their psychotherapist.

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