http://www.usachcs.army.mil/
U.S. Army Chaplain Center and School
Fort Jackson, South Carolina Resources Menu
USACHCS
Rules for Disclosing
Privileged Communication
Rules for Disclosing Privileged Communication
(1) The privilege against disclosure belongs to the “penitent.” A chaplain or chaplain assistant may NOT disclose the content of Privileged Communication without the express consent, preferably in writing, of the person to whom the privilege belongs. (Military Rule of Evidence 503 and AR 165-1 discuss the nature and scope of the privilege more fully).
> If a military judge or other presiding official determines that no privilege exists, a chaplain or chaplain assistant may be subject to punitive or adverse administrative action for failing to comply with the ruling. Also, a chaplain should not presume that the military concepts of Privileged Communication will prevent disclosure in state courts. For example, AR 608-18, Appendix D, para D-1, provides that the law applicable in a state court will determine the existence and scope of the privilege as it relates to testimony regarding child abuse.
• Any nonprivileged communication to a chaplain, chaplain assistant, or other chaplain personnel that involves personally sensitive information that would not be a proper subject for general dissemination.
• Sensitive information should normally not be disclosed unless the declarent expressly permits disclosure.
• Knowledge of a soldier’s enrollment in Drug & Alcohol Programs, Psychiatric Treatment, Prior Arrest or Prior Hospitalization is generally considered as Sensitive Information.
• (1) Sensitive Information should NOT be disclosed unless the individual about whom the information pertains expressly consents. However, there is generally no legal impediment to disclosure of this information. In appropriate cases, such information should be disclosed (e.g., the planned commission of crimes). In addition to guidance from the supervisory chain of command, a chaplain should seek legal advice.
• (2) Chaplains, in deciding whether or not to disclose information, may also consider the tenets of their faith, the provisions of their ordination vows, and their individual consciences. However, there is no legal impediment to disclosure. Chaplains who refuse to disclose Sensitive Information when required to do so may be subject to punitive and adverse administrative action.
• (3) Proper handling of Sensitive Information reinforces trust in the Chaplaincy by soldiers and their family members.
Supervisory Issues
• Supervisors must recognize Privileged Communication and Sensitive Information issues and provide guidance to subordinates dealing with these issues in ministry.
• Supervisors must also understand their responsibilities regarding subordinates when their subordinates commit misconduct or perform unsatisfactorily. In other words, supervisory chaplains must understand the distinction between their supervisory role and their pastoral role when dealing with subordinates.
Responsibility to Report
Every supervisory chaplain & chaplain assistant has the responsibility and authority under Article 31 of UCMJ, to:
a. Read the subordinate his/her rights using the Rights Warning Procedure/Waiver Certificate (DA Form 3881) prior to questioning the person.
b. Report allegations to Chain of Command
c. Report allegations to Chaplain Staff Supervisory Chain
d. Seek legal counsel from JAG
CHANNELS FOR REPORTING ALLEGATIONS:
> Command
> Chaplain Staff Supervisory Chain
Linear Mode
