Air Force Court of Criminal Appeals

In re DD v. United States

Petitioner requests we stay the military judge’s order and issue a writ vacating the military judge’s order to produce and discover certain non-privileged mental health information from two Veterans’ Affairs (VA) clinics. We deny the stay and find issuance of a writ is not appropriate.

h the military judge, trial counsel, and victim’s counsel. Specifically, the Defense offered that DD had shared with a witness that during DD’s time in the military, he “may have developed post-traumatic stress disorder (PTSD), was taking “several medications,” and had been seeking “mental health/medical services.” 

​Fourth, we disagree with Petitioner’s contention that the Real Party in Interest did not proffer the requested information existed. On 28 June 2024, the Defense filed a notice pursuant to Mil. R. Evid. 513 with the military judge, trial counsel, and victim’s counsel. They named a witness who stated he had overheard Petitioner discussing a diagnosis, treatment medications, and services. Significantly, on 26 August 2024, Petitioner testified in the closed hearing wherein he confirmed a certain mental health history existed prior to and potentially during the timeframe of the alleged offenses. This diagnosis resulted in treatment and counseling.

Petitioner claims the military judge erred: (1) by issuing an order instead of a subpoena; (2) by issuing an order that is not from a court of competent jurisdiction; (3) by applying R.C.M. 701 to records in the possession, custody, and control of the VA; (4) by granting the Defense’s motion to compel evidence when the Defense failed to make a proffer of evidence; and (5) in determining a “constitutional exception” existed under Mil. R. Evid. 513 requiring discovery of certain mental health information.

On 24 September 2024, trial counsel issued and then served on the VA a subpoena with the military judge’s order attached. On 2 October 2024, the VA responded explaining the military judge’s order was issued by a court that was not of competent jurisdiction, citing the Privacy Act, 5 U.S.C. § 552a. The VA further advised that they could release the records with DD’s consent. DD denied consent to release his mental health records, therefore the VA did not provide the ordered information.

Second, Petitioner’s concern that the VA would not comply with the military judge’s order as it was not issued by a competent court appears to reflect the VA’s perspective. In support of this position, Petitioner and the VA cite the Privacy Act, 5 U.S.C. § 552a(b)(11). We see no explanation in the Privacy Act for what may or may not be a court of competent jurisdiction. We do not subscribe to the logic of Petitioner’s argument, that the military judge was not “competent” to issue an order just because the VA would not honor it. 

First, Petitioner’s concern that the military judge’s order should have been a subpoena is without merit. Article 46, UCMJ, allows for either format. Nonetheless, the military judge’s order was attached to a subpoena that complied with R.C.M. 703(g)(3) and was served on the VA by trial counsel on 24 September 2024. 

Third, while Petitioner accurately restates one paragraph of the military judge’s written ruling, the military judge did not find as a matter of fact or conclusion of law that the requested records are specifically within the possession, custody, and control of the military authorities, despite his citation to R.C.M. 701. In the context of what is before us, the military judge’s ruling and orders indicate he believed the records held by the VA were within the possession, custody, and control of the Government, as contemplated by R.C.M. 703.