When mental illness contributes to misconduct, military justice must follow the evidence

In 13 years practicing military law, I have repeatedly had to push back when command legal advisors cling to their first assessment after the evidence points elsewhere. The impulse to preserve the original case can overtake both compassion and clear-eyed legal analysis.

One case I handled shows how far that resistance can go. The actual allegations were relatively minor, but the potential consequences to my client were outsized.

My client was an E-7 nearing retirement after many years of service. The government originally brought his case before a summary court-martial. The prosecutor also offered a discharge in lieu of trial, a route that almost always ends in an other-than-honorable discharge. The prosecutor further signaled that the command would still pursue a separation board after the summary court-martial. Either way, separation would have cost my client the retirement benefits he was close to earning. We chose to fight.

After speaking with my client, I knew we needed expert help to understand how his mental health related to the allegation. We first requested a mental-health consultant to assist the defense. The prosecutor objected and said the proper course was a formal Army psychiatric inquiry, commonly called a sanity board. When we followed that advice and requested one, the prosecutor inexplicably opposed that request too.

Only after repeated, well-supported defense requests did the summary court-martial officer order the command to appoint a sanity board. The prosecutor recommended a specific Army psychiatrist to perform the evaluation, and that psychiatrist reached an unequivocal conclusion: Medication-induced hypomania prevented my client from appreciating the wrongfulness of his conduct.

Instead of reconsidering the case, the prosecutor spent 52 days searching for experts to rebut that conclusion. During that search, the prosecutor repeatedly ignored requests for updates from the summary court-martial officer, and then the command abruptly elevated the case to a special court-martial.

We continued fighting, and the military judge later found that the government kept both the summary court-martial officer and the defense “completely in the dark,” used an “underhanded approach,” and lacked candor as it delayed the case “to surreptitiously find a way around” the sanity board's adverse findings. She also concluded that the change in forum occurred solely because of the sanity board’s findings.

The resulting delay violated my client's speedy-trial rights. Calling the command’s conduct fundamentally unfair, the judge dismissed the case with prejudice and barred a retrial. After the judge’s strongly worded order, the command did not appeal or pursue separation, and my client continued serving toward retirement.

Yes, prosecutors are entitled to test an expert's analysis, and a mental-health diagnosis alone does not establish lack of mental responsibility. But a mental-health evaluation is not really an inquiry when the command has already decided the only acceptable conclusion.

In many cases, mental-health evidence supports mitigation or extenuation even when there is not a complete legal defense. Separation packets, Article 15 proceedings, and reprimand actions often describe alleged misconduct in detail while reducing the service member to a rank and an allegation. What disappears is everything that came before: service-related trauma, efforts to obtain care, or a mental-health crisis preceding the incident. Too often, commands leave it to defense counsel to put the human being back into the record.

When the Army implemented the Brandon Act in 2023, it told leaders to make clear that seeking mental-health care is encouraged. That commitment cannot stop at the clinic door. Before approving punishment or separation, commanders and their legal advisors must confront the whole record: what role mental health played, whether failures in treatment or leadership worsened the condition, whether symptoms were misconstrued as a defect in military bearing, and why the proposed outcome remains just.

My client's case ended because a judge stopped the prosecution, not because the government listened to its own psychiatrist. When my client reviewed a draft of this article, he reflected: “My life could have turned out very differently.” Senior leaders should remember that before accepting any action packet that explains the allegation but not the person whose future is at stake. The next Soldier should not need a judge to make the military follow its own evidence.