In a court-martial charging a violation of Article 120 of the Uniform Code of Military Justice, both sides may see value in the medical and mental health records of the people involved. The defense may want to explore an accuser’s treatment history. The prosecution may want to introduce records that corroborate an injury or a report. The military justice system places significant restrictions on this kind of evidence, and those restrictions have grown more protective in recent years.
The psychotherapist-patient privilege under MRE 513
The central restriction comes from Military Rule of Evidence 513, which establishes a psychotherapist-patient privilege. Under this rule, a patient can refuse to disclose, and prevent others from disclosing, confidential communications made to a psychotherapist for the purpose of diagnosis or treatment of a mental or emotional condition. The privilege belongs to the patient, which in an Article 120 case frequently means the alleged victim.
This privilege is not absolute, but the avenues around it are narrow. Earlier versions of the rule contained a “constitutionally required” exception that defense counsel often invoked to seek access; Congress and the President have since tightened the framework so that a service member cannot simply assert a general need for the records. To even examine privileged material, the defense must usually make a specific showing and the military judge controls the process closely.
What MRE 513 does and does not cover
A key point established in military appellate law is that the privilege protects confidential communications between the patient and the psychotherapist. It does not automatically shield every page of a medical file. The Court of Appeals for the Armed Forces has explained that diagnoses and treatment records are not, by themselves, uniformly privileged communications under the rule. This distinction matters: the protected core is the patient’s confidential disclosures, not necessarily every administrative or clinical notation in a chart.
That nuance does not open the door wide. Even where material falls outside the strict definition of a privileged communication, other rules and the patient’s privacy interests still apply, and the judge must determine relevance and admissibility before anything reaches the members.
How a record is actually reviewed
When a party seeks privileged or protected records, the military judge typically does not hand them over for a fishing expedition. The standard procedure is for the judge to conduct an in camera review, meaning a private review by the judge alone, only after the requesting party makes the threshold showing required by the rule. The patient and, where applicable, the patient’s counsel are entitled to notice and an opportunity to be heard before any disclosure. If the judge finds that some portion is both unprivileged or subject to an exception and relevant, the judge can release that limited portion under protective conditions while withholding the rest.
The overlap with the rape shield rule
Restrictions on private records frequently intersect with Military Rule of Evidence 412, the military’s rape shield provision. MRE 412 generally bars evidence offered to prove that an alleged victim engaged in other sexual behavior or to prove a sexual predisposition. Because medical and counseling records sometimes contain exactly that kind of information, a defense effort to use such records can run into both the 513 privilege and the 412 bar at the same time. Counsel must satisfy the requirements of each rule, and the judge evaluates them on separate tracks.
Submitting information outside the trial itself
There is a related avenue worth understanding. The Rules for Courts-Martial allow the parties and a named victim to submit additional information to the convening authority for consideration in the disposition of charges. This mechanism permits an accused to bring relevant matters to the decision-maker’s attention even when that material would not be admissible at trial. It is not a back door around the privilege at trial, but it reflects how the system separates the question of admissibility before the members from the broader question of what the convening authority may weigh.
The practical picture
For a service member facing an Article 120 charge, the takeaway is that private medical and mental health records are heavily guarded. Access requires a specific, rule-based showing rather than a general claim of relevance, the military judge serves as a gatekeeper through in camera review, and the rape shield rule may layer additional barriers on top of the privilege. These protections exist to encourage candor in treatment and to shield personal information, and they apply to the records of any patient, including the accused. Navigating them requires experienced military defense counsel who can frame a proper request and meet the demanding thresholds the rules impose.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.