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Crossing into the blues
Improperly coercing subordinates to undergo
mental health evaluations
Maj. Dawn M. K. Zoldi
Headquarters Air Force, Administrative Law Division
Airman Snuffie has been acting strangely. He recently told his commander he was "losing it" and was going to "go postal on someone." The commander meets with Airman Snuffie at 4 p.m. on a Friday before a three-day weekend. He tells the Airman he won't be released for the weekend until the base Life Skills Center clears him. Airman Snuffie, feeling he has no choice in the matter, "volunteers" to go to Life Skills, escorted by his two supervisors.
Did Airman Snuffie really "volunteer?"
Most investigations into improper mental health evaluation referrals encounter this very question. Commanders, supervisors, IGs, judge advocates and life skills personnel need to understand where the line is drawn -- and when it has been crossed -- before Airman Snuffie knocks on their door.
"Supervisory personnel, including commanders, may encourage Air Force members to voluntarily seek mental health care. ... Supervisors and commanders may not, however, under any circumstances attempt to coerce members to voluntarily seek a mental health evaluation," states Air Force Instruction 44-109, Mental Health and Confidentiality in Military Law, March 1, 2000, paragraph 4.1.
Commanders, IGs and JAs can look to commonly used definitions to understand what it means to "coerce," or conversely, what constitutes "voluntary" consent. The legal profession's LexisNexis Martindale-Hubbell Online Dictionary defines "coercion" as "The use of express or implied threats of violence or reprisal (as discharge from employment) or other intimidating behavior that puts a person in immediate fear of the consequences in order to compel that person to act against his or her will."
It defines "voluntary" as "Proceeding from one's own free choice or consent rather than as the result of duress, coercion or deception." Conversely, the online dictionary defines "involuntary" as "Done, made or initiated contrary to or without one's choice."
In an analogous arena, the U.S. Supreme Court has analyzed "voluntariness" in both the context of confessions (Fifth Amendment) and consent searches (Fourth Amendment) by using the totality of the circumstances test. The military has adopted this approach.
Military courts have held that the totality of the circumstances include:
- the individual's condition, to include health, age, education, intelligence, experience, length of military service; and
- the conditions of the environment where the exchange took place, including the length of the conversation, the use of force, threats, promises or deceptions, and knowledge of the right to refuse consent.
In addition, military courts have examined what was done or said, as well as what was not done or not said.
So, did Airman Snuffie really "volunteer?" While reasonable minds can differ on the ultimate answer, the commander's ultimatum probably left Airman Snuffie feeling like he really had no choice but to "volunteer" to go to Life Skills.
Commanders and supervisors should never be dissuaded from encouraging subordinates to get the help they need. However, before "encouraging," talk to the IG, Life Skills and JA.
A commander should gather first-hand knowledge of the facts, review the procedural requirements and use available resources. If, after this, the commander still believes that Airman Snuffie needs the attention of a mental health professional, the best course of action is to use the established mental health referral process to command-direct the member.
It can be difficult seeing the line between truly helping someone and unwittingly coercing him or her-and hindsight is always 20/20. Preparing in advance for the inevitable Airman Snuffie will keep us all from crossing into the blues.
For more on this topic, visit the Complaints Resolution Directorate, Secretary of the Air Force Inspector General, at https://www.ig.hq.af.mil/igq. Among other resources, the site has Department of Defense Inspector General Guide 7050.6, Guide for Investigating Reprisal and Improper Referrals for Mental Health. The guide has a helpful checklist for commanders at Figure 3.1, Part A, Section 1. The guide can be reached directly at www.ig.hq.af.mil/igq/Downloads/IGDG7050-6.pdf.
Zoldi is detailed as the legal advisor to the Complaints Resolution Directorate, Secretary of the Air Force Inspector General. This article appeared in the TIG Brief, which is published by the AF Inspection Agency.
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