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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 34992
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My commander wishes to speak with my military doctor to question

Customer Question

My commander wishes to speak with my military doctor to question the validity of my medical complaints. What information is the doctor required to release?
Submitted: 7 years ago.
Category: Military Law
Expert:  P. Simmons replied 7 years ago.
Thanks for the chance to assist.

There are privacy protections, even for members of the military...but like other rights, the right to privacy of military members is more limited than their civilian counterparts.

The primary privacy protection for individuals in the US is the Health Insurance Portability and Accountability Act (HIPAA). HIPAA is set of laws that, among other things, provides a measure of privacy for medical records. HIPAA generally prevents disclosure of patient records...however, the application of HIPAA within the military is a bit different than, for example, a typical employer.

DoD Regulation 6025.18-R, "DoD Health Information Privacy Regulation", January 2003, Section C7.11.1.1. states "a covered entity (including a covered entity not part of or affiliated with the Department of Defense) may use and disclose the protected health information (PHI) of individuals who are Armed Forces personnel for activities deemed necessary by appropriate military command authorities to assure the proper execution of the military mission."

What the above states is that a commander can access medical records (and talk with physicians about the records) if it is necessary for the "proper execution of the military mission". So, if the commander has a concern for a soldiers health and that concern extends to a concern for his ability to meet the mission, the commander can inquire into the health status of the soldier. What can this cover...really, if your a member of the unit and there is a concern for your health, your record of treatment is fair inquiry for the commander.

So, what is the Doctor required to tell...the doctor is required to respond to the inquiry of the commander if the Doctor is part of a Military Medical Treatment Facility (basically, if they are a doctor on base and the commander requests information, the doctor will respond). There is not a limitation to this (other than the "proper execution of the military mission"-however, if the soldier is part of the unit the commander can inquire into their health.

Can you be ordered to disclose? Well, under Art 31b, UCMJ, the commander can not order you to provide ANY information that could incriminate you. Aside from that, the commander would be limited by Art 92, UCMJ...that is if the commander gave an order and it was "lawful", and you did not obey the order, you could be prosecuted under Art 92, UCMJ. SO, is an order to provide information from your most recent doctors appointment a "lawful"? An order is lawful if it relates to a valid military function and is not otherwise unlawful....I would bet that an order from the commander (we are talking battalion commander when we talk commander...NOT 1st Sergeant...Not Platoon Leader) to disclose medial information, so long as it relates to an individual in the command would likely be lawful

So, what can you do if ordered...If ordered by a Staff NCO or someone subordinate to the commander, I would request to speak with the commander and provide the information to the commander only. You have a valid concern...your medical history should NOT be common knowledge in the Battalion. Its the job of the commander to prevent this. Share your concerns with the commander (again, Battalion level) and allow them to do their job.

What if your commander is improperly spreading the information? Then you can complain under Art 138, UCMJ.

There is a good overview on this matter (tricare privacy policy) here;jsessionid=KqgYSGghr2HXthPmq8Fn5bjzWsQk9Jyv9hNz2dBfCN2NNNFLhZLH!-491296821?puri=%2Fhome%2FMedical%2FRecordsAndPrivacy

Please let me know if you have further questions; if so I will do my best to answer them. If not please hit the accept button, its the only way I get credit for my work. Terms and Conditions: By your continuing in this conversation with me, or by your clicking “Accept”, you are expressly agreeing to all of the following: (1) our communication is for entertainment purposes only; (2) you do not seek to establish an attorney-client relationship with me, nor do I with you; (3) you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises; (4) by communicating with me in this public forum you are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed. You further separately declare that any payment made by you is not consideration for this contract, nor offered for any services rendered by me on your behalf. If you do not agree with these terms and conditions, then you must advise me immediately.

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Expert:  P. Simmons replied 7 years ago.
I wanted to give one more piece of information. PLEASE DO NOT ACCEPT AGAIN.

IF you are ordered to provide information, you should request to talk to a defense attorney Army-TDS, Air Force-ADC or Navy/Marines-Defense Counsel.

The commander is not required to allow you to see one...but they may and it will not hurt to request.