While handling a recent murder case, I quickly discovered how difficult it can be to obtain military records for a defendant. The defendant claimed his crimes—brutally beating a prostitute with a baseball bat and then dumping her body—were the result of post-traumatic stress disorder (PTSD) from multiple deployments to Iraq and Afghanistan. The defendant linked his behavior to the horrible atrocities he witnessed during combat.
His attorney designated a psychologist who evaluated the defendant and concluded that he may in fact suffer from PTSD. Remarkably, neither the psychologist nor the defense attorney requested or reviewed any military records to substantiate the defendant’s claims. I knew the defendant had been honorably discharged from the Navy but had no information about whether he had actually seen combat. While I agree that soldiers returning from war may experience PTSD, the defendant had not produced any documents to support his defense.
My first order of business was to obtain and review the defendant’s military records. If he had experienced traumatic events or received counseling and treatment for any mental health issues, then I expected this information to be documented in his file. After consulting with fellow prosecutors on what to do, I sent a subpoena and cover letter with the defendant’s name and date of birth to the National Personnel Records Center, Military Personnel Records division (NPRC-MPR) in St. Louis. In a follow-up call to check the status of my request, a representative said the entire process could take up to 10 weeks. Ten weeks! Fortunately we had plenty of time to get the records and continue our preparation for trial.
During a call to the representative after about eight weeks of not hearing anything, she politely said that the NPRC-MPR could not process my request because the defendant had discharged from the Navy after a certain date. I also did not include enough personally identifiable information in my request. She added that I would have to make a new request, and the processing time could take up to another 10 weeks. It was obvious that law school had not adequately prepared me to deal with the bureaucracy of the federal government.
While working on the new request, we were able to plead the case for a significant sentence, and justice was served. Many weeks later I received a postcard regarding my second request for the defendant’s records. Again, there was a problem with the request and I would have to submit another one—and yes, processing could take up to another 10 weeks. Frustrated with this process, I thought to myself, “Oh Alice, how far does the rabbit hole go?” I wrote this article to tell prosecutors what I learned about the process of requesting military records.
In reviewing a defendant’s military records, the prosecutor’s goal is to find information that is admissible or that may lead to admissible evidence to use at trial. The utility of such efforts will depend on the facts and circumstances of a particular case. Does it make sense to request military records for a first-time possession of a controlled substance? Probably not, but with the possibility of a lengthy processing time, it will be helpful to get the request done right the first time.
It may sound a little far-fetched, but convincing the defendant to request his own records and provide copies to you is an option. Oftentimes, it is in the defendant’s best interest to provide records to the State if those records will advance a particular defensive theory or mitigate punishment in some way. Veterans and active duty soldiers generally have greater rights to access their own records than do members of the public. If the defendant is a veteran, he can request his records from the NPRC-MPR by filing out a SF-180 online at www.archives.gov/veterans/military-service-records.
Another option, which might be better than relying on the defense, is to make a request under the Freedom of Information Act (5 U.S.C. §552, also referred to as FOIA). The information available to the public through an FOIA request is limited by the Privacy Act of 1974 (5 U.S.C. §552a). In the military, the FOIA Coordinator for each command normally doubles as the Privacy Act coordinator.1 The FOIA/PA coordinator is the liaison responsible for responding to a request for records, including proper instructions on how to obtain the records. Cooperative defendants can sign an FOIA/ Privacy Act release to expedite obtaining records.
The Privacy Act prohibits the federal government from disclosing information contained in a “system of records,” which is information “retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.”2 The records we need for trial are likely contained in a system of records. An exception to this broad protection is granted to law enforcement agencies, including police departments.3 Therefore, reach out to local police officers early in the investigation and ask them to request records on the defendant. The detectives in my case were able to get a packet of information from the Defense Manpower Data Center, including the defendant’s photo, Defense Enrollment Eligibility Reporting System (DEERS) Extract, assignment history, CTS Deployment file, DD-214 Extract, and Verification of Military Experience and Training (VMET). This information was extremely useful in learning more about him, including a previously unknown fact that he had been married years ago.
There is yet another option: obtaining military records with a subpoena or court order. For purposes of this article, a “subpoena” refers to a subpoena duces tecum that has a judge’s signature instead of a prosecutor’s signature.4 Any first-year law student who was actually awake during constitutional law will want to lecture us about the principles of federalism—that is, that branches of the federal government do not have to respond to a state subpoena. While Mr. First Year is technically correct, the federal branches have policies pertaining to the disclosure of information in response to state court demands. Similar to law enforcement agencies, the Privacy Act provides an exception to requests for information made through subpoenas and court orders.5
There are five active duty branches in the U.S. military: the Army, Navy, Air Force, Marine Corps, and Coast Guard. Determining the proper agency to receive a subpoena is critically important and will depend on, among other things, the defendant’s service identifiers. In situations where two or more veterans or active duty soldiers have the same name, these identifiers will ensure that your request is for the right person. The defendant’s date of birth, Social Security number, and race/ethnicity should already be in your file. You will also need to find out in which branch the defendant served and his approximate dates of service. Again, the local law enforcement agency should be able to access this information. The defense may also be willing to hand over this information, including the defendant’s DD Form 214.6 Incorrect or incomplete identifiers may result in delays to the request, so make sure the information is correct. As a general rule, always send with the subpoena a cover letter that includes identifiers as well as detailed information about the records you are seeking.
National Personnel Records Center
The National Personnel Records Center, Military Personnel Records (NPRC-MPR) in St. Louis, Missouri, is the central repository of military personnel, health, and medical records of discharged and deceased veterans.7 The NPRC-MPR is a federal record center and part of the National Archives and Records Administration.8 The NPRC-MPR should have custody of the Official Military Personnel File (OMPF), which contains administrative records about a veteran’s service history.9 Records are transferred to the NPRC-MPR six months after a person has discharged from the military.10 Prosecutors should request the defendant’s OMPF by serving a subpoena on the director of the NPRC-MPR.11 The NPRC-MPR may not produce the entire OMPF in response to a subpoena, so be prepared to serve additional subpoenas or contact the NPRC-MPR directly if you suspect additional documents are available but have not been produced. Sending an FOIA request to the NPRC-MPR is also a good idea. If the defendant’s health and medical records are not in the OMPF, request them from the Department of Veteran Affairs.12 Visit www.archives.gov for complete information about obtaining records from the NPRC-MPR, including making FOIA requests.
Active duty records
There is no centralized location like the NPRC-MPR for active duty service records. As a result, you may encounter more difficulty in obtaining records for trial. Each branch of the military has polices for how to respond to a FOIA request for records, and these policies are subject to the restrictions in the Privacy Act. To acquire active duty personnel information for all branches of the Department of Defense through a FOIA request, visit www.dod.mil/ pubs/foi/contactUs.html.
For active duty service records, the subpoena should qualify as an exemption to the broad protections given to the defendant under the Privacy Act. The Code of Federal Regulations provides instructions to military branches on how to handle requests for production of records. Specifically, sections under 32 C.F.R. part 97 govern the release of official information in litigation and testimony by Department of Defense personnel. Additional rules governing the release of Navy and Army records are found in sections under 32 C.F.R. part 725 and 32 C.F.R. part 516, respectively.
Navy and Marines
A subpoena for naval records should be served on the general counsel at the Department of the Navy, Office of the General Counsel, Navy Litigation Office, 720 Kennon Street SE, Bldg. 36 Room 233, Washington Navy Yard, DC 20374-5013, who will then refer the matter to the proper delegate for action.13 The request for records must identify the parties, their counsel, and the nature of the litigation; identify the information or documents requested; and describe why the information is needed.14 There are a number of factors affecting whether the Navy will comply with the subpoena.15 For example, subpoenas that are unduly burdensome, conflict with existing laws, or interfere with ongoing law enforcement proceedings will likely be rejected.16 If the Navy complies with the subpoena, then expect certified copies of records to be forwarded to the clerk of the court from which the subpoena was issued.17
A subpoena for army records should be served on the Chief, U.S. Army Litigation Division.18 The Army’s policy is to make records reasonably available, including for use in criminal cases pending in state courts, unless the information is classified, privileged, or otherwise protected from public disclosure.19 Similar to the Navy, there are factors affecting whether the Army will comply with the subpoena.20 Serve the subpoena, including a cover letter describing the nature and relevance of the Army records you are seeking, at least 14 days before the desired date of production.21 If the Army decides not to challenge the subpoena, then expect full compliance.22
A subpoena for Air Force records should be served on the Chief, General Litigation Division, Office of the Judge Advocate General.23 All releases of information from Air Force records, whether the requester cites the FOIA or not, must comply with the principles of the FOIA.24 Accordingly, a subpoena will be treated no differently from a standard FOIA request. Procedures on how to make a FOIA request to the Air Force are found at www.foia .af.mil/index.asp. The Privacy Act applies, so you will need to coordinate with the Air Force’s FOIA/PA representative to obtain records responsive to your subpoena.
The Coast Guard is the only military branch that is a part of the Department of Homeland Security. Refer to relevant sections of 6 C.F.R. part 5 for rules pertaining to the disclosure of records and information from the Department of Homeland Security. A subpoena for Coast Guard records may be served on the Office of General Counsel, Department of Homeland Security.25 The subpoena and cover letter must identify the nature and relevance of the information sought with as much specificity as possible.26
The Hydra is a mythical creature with the body of a serpent and many heads—similarly, the federal government is a large bureaucracy with many agencies. In a quest to obtain military records in a timely manner, comparisons of the two may occur often. Remember, this is not a request for pen packets or certified copies of judgments and sentences, which is a fairly routine process for prosecutors and investigators. For that reason, it may be helpful to identify someone in your office to create a template for a subpoena and cover letter, assist you in getting the judge’s signature and filing the subpoena with the clerk’s office, and work with you or your investigator to properly serve the subpoena on the appropriate entity. This is especially important in smaller counties with fewer resources. In the cover letter, be sure to include some version of the following statement: “If you do not have records pertaining to (defendant’s name), we would appreciate any information you may have that will help us locate them.”
There is no perfect process. Because federal agencies do not have to respond to state subpoenas, you may encounter unanticipated difficulties with getting the appropriate federal entity to comply and produce records. You may eventually have more success with simply making a standard FOIA request. The value of sending a subpoena, however, is that the Privacy Act will not prohibit you from obtaining documents maintained in a system of records. Whatever route you choose, make sure the records are in admissible form if you will need them at trial. Good luck and happy hunting!
1 Interview with John A. Barnes, Supervisory Paralegal Specialist, FOIA/PA Coordinator, MCAS Miramar, San Diego, CA (July 29, 2013).
2 5 U.S.C. §552(b).
3 5 U.S.C. §552a(b)(7).
4 See Doe v. Di Genova, 250 U.S. App. D.C. 274, 779 F.2d 74 (1985) (subpoenas, grand jury or otherwise, do not qualify as orders of court of competent jurisdiction unless they are specifically approved by court).
5 5 U.S.C. §552a(b)(11).
6 The DD Form 214, officially DD Form 214 “Certificate of Release or Discharge from Active Duty,” but generally referred to as a “DD 214,” is a document of the United States Department of Defense issued upon a military service member’s retirement, separation, or discharge from active-duty military.
7 More information about the National Personnel Records Center, Military Personnel Records is available online at www.archives.gov/st-louis.
10 Telephone interview with Marie Carpenti, Administrative Aid, National Archives and Records Administration (July 25, 2013).
11 Demands for the production of records stored in a Federal Records Center (FRC), including the National Personnel Records Center, must be addressed to and served on the director of the FRC where the records are stored. 36 C.F.R. §1251.8(e).
12 See www.archives.gov/veterans/military-service-records/medical-records.html.
13 32 C.F.R. §725.6(d)(1)(iii); 32 C.F.R. §257.5(c).
14 See 32 C.F.R. §725.7 and 32 C.F.R. §725.8(b)(2)(i).
15 See 32 C.F.R. §725.8(a).
17 See 32 C.F.R. §725.8(b)(2)(i)(A).
18 32 C.F.R. §516.14; 32 C.F.R. §257.5(b).
19 32 C.F.R. §516.40(a); 32 C.F.R. §516.44(a); see also United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (finding no contempt for the agency employee who refused to produce documents based on an order from his superiors).
20 32 C.F.R. §516.44(b).
21 32 C.F.R. §516.41(d).
22 32 C.F.R. §516.41(f)(4).
23 32 C.F.R. §257.5(d).
24 32 C.F.R. §806.3(a).
25 6 C.F.R. §5.43(a).
26 6 C.F.R. §5.45(a).