UNITED STATES, Appellee 

v. 

Michael P. JENKINS, Airman First Class 

U.S. Air Force, Appellant 

No. 06-0027 

Crim. App. No. 35699 

United States Court of Appeals for the Armed Forces 

Argued May 2, 2006 

Decided August 9, 2006 

BAKER, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined. 

Counsel 

For Appellant: Captain John S. Fredland (argued); Lieutenant 

Colonel Mark R. Strickland (on brief). 

For Appellee: Captain Kimani R. Eason (argued); Lieutenant 

Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and 

Captain Jefferson E. McBride (on brief). 

Military Judge: Daryl E. Trawick 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Jenkins, No. 06-0027/AF 

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Judge BAKER delivered the opinion of the Court. 

 Appellant was an Airman First Class assigned to Charleston 

Air Force Base, South Carolina. Before a general court-martial 

composed of a military judge sitting alone, Appellant pleaded 

guilty to two specifications of wrongful use of cocaine on 

divers occasions, one specification of wrongful use of 

marijuana, one specification of assault with a deadly weapon, 

one specification of disorderly conduct, and two specifications 

of communicating a threat, in violation of Articles 112a, 128, 

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 

912a, 928, 934 (2000). The military judge sentenced Appellant 

to thirty months of confinement, reduction to E-1, forfeiture of 

all pay and allowances, and a bad-conduct discharge. Pursuant 

to a pretrial agreement, the convening authority disapproved all 

confinement in excess of eighteen months and waived automatic 

forfeitures. The United States Air Force Court of Criminal 

Appeals affirmed. United States v. Jenkins, No. ACM 35699, 2005 

CCA LEXIS 275, at *9, 2005 WL 2130216, at *3-*4 (A.F. Ct. Crim. 

App. Aug. 16, 2005) (unpublished). Upon Appellant’s petition, 

we granted review of the following issue: 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN 

ADMITTING APPELLANT’S CONFIDENTIAL COMMUNICATIONS WITH A 

PSYCHOLOGIST DURING A COMMANDER-DIRECTED MENTAL HEALTH 

EVALUATION. 
United States v. Jenkins, No. 06-0027/AF 

3

We conclude that Appellant’s communications fell within 

exceptions (4) and (6) to the psychotherapist-patient privilege 

under Military Rule of Evidence (M.R.E.) 513(d), and we affirm 

the decision of the Air Force Court of Criminal Appeals. 

BACKGROUND 

 At the time of his offenses, Appellant worked on the wash 

and wax detail at the Charleston Air Force Base Vehicle 

Operations. Appellant had previously been assigned to pickup 

and delivery, but was reassigned after an investigation into his 

illegal drug use. On January 10, 2003, Appellant provided a 

signed and sworn statement admitting that he purchased and used 

cocaine approximately sixty times while attending technical 

school at Fort Leonard Wood, Missouri, and used cocaine upwards 

of sixty times since his arrival at Charleston Air Force Base. 

On April 7, 2003, Appellant tested positive for cocaine use 

during a random unit urinalysis inspection. 

 On the night of May 7, 2003, Appellant was drinking with 

friends while outside of his dorm. Airman Brandon M. Times 

walked by en route to his car and was confronted with racist 

remarks from Appellant’s friends. After being approached in a 

hostile manner by Appellant and four of his cohorts, Airman 

Times quickly drove away but soon returned to the scene with 

three of his own friends in search of “[s]ome kind of 

resolution.” 
United States v. Jenkins, No. 06-0027/AF 

4

Airman Times and his friends approached the group and were 

confronted by Appellant who, while brandishing a fourteen–inchlong knife, stated: “Y’all n****** are f****** with a crazy 

white boy tonight. I’m going to kill y’all n****** tonight,” or 

words to that effect. Upon seeing the knife, Airman Times and 

his friends immediately fled the scene by foot. Appellant 

chased in hot pursuit, coming within feet of his target until 

Airman Times eventually escaped into the chow hall, therein 

finding safety and the assistance of Security Forces personnel 

who happened to be dining at the time. Security Forces 

personnel apprehended Appellant outside the chow hall. 

 Appellant was released by Security Forces the following 

morning on May 8, 2003, and instructed to walk home by Master 

Sergeant (MSgt) Janet Osborne. At approximately 7:15 a.m., 

Appellant arrived at work. He described the events of the 

previous evening to his supervisors and coworkers, and speaking 

of MSgt Osborne, he stated, “That f****** bitch made me mad. 

She f****** made me walk home, and I was f****** drunk. If I 

had a f****** knife at that time, I would have cut her f****** 

throat,” or words to that effect. 

Appellant’s behavior was reported up the chain of command, 

and on May 9, 2003, he was sent for a command-directed mental 

health examination with Lieutenant Colonel Frank Budd, a 

clinical psychologist. The examination lasted about one hour 
United States v. Jenkins, No. 06-0027/AF 

5

and consisted of a clinical interview, a description of 

Appellant’s mental health history, and various psychological 

tests. Dr. Budd drafted a mental health evaluation following 

the examination. 

 At Appellant’s court-martial, the Government gave notice 

that it intended to call Dr. Budd to testify on sentencing and 

that it would offer Appellant’s mental health evaluation into 

evidence. Appellant objected to Dr. Budd’s expected testimony 

and to admission of the evaluation, arguing that the probative 

value of the evidence was outweighed by its prejudicial impact, 

and also that his communications to Dr. Budd were confidential 

and protected by the psychotherapist-patient privilege under 

M.R.E. 513(a). 

 The military judge overruled the defense objections and 

held that the evidence was admissible under M.R.E. 513(d)(4) and 

(6) for consideration on sentencing. Trial counsel subsequently 

introduced the mental health evaluation, and Dr. Budd testified 

to his observations of Appellant during the mental health 

examination. 

Dr. Budd testified that Appellant “acts with very poor 

impulse control.” He also testified that Appellant scored 

extremely high on the anger inventory, “higher than [Dr. Budd 

had] ever seen,” but “low and below the cutoff for the average 

individual” on the self-control inventory. He stated that 
United States v. Jenkins, No. 06-0027/AF 

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Appellant was “extremely impulsive, angry, likely to think angry 

things, likely to do angry things, and his ability to control 

his own emotions, his own reactions is extremely low . . . if he 

thinks it, he will do it.” 

 Dr. Budd’s written mental health evaluation noted 

Appellant’s involvement in nine to ten fights in high school and 

his arrest since joining the Air Force for fighting while on 

leave. The evaluation ultimately recommended that Appellant, 

“be ordered into confinement pending the outcome of his Courts 

Martial [sic] due to his dangerousness to others. His condition 

is not amenable to treatment in the military setting.” Dr. Budd 

also recommended that Appellant receive extensive medical and 

psychiatric treatment. 

 Appellant now renews his argument that the military judge 

abused his discretion in admitting Dr. Budd’s testimony and the 

mental health evaluation on sentencing. He contends that his 

communications to Dr. Budd were made to facilitate treatment or 

diagnosis of his mental condition and were therefore protected 

under the psychotherapist-patient privilege. 

DISCUSSION 

 We review a military judge’s decision to admit or exclude 

evidence for an abuse of discretion. United States v. Manns, 54 

M.J. 164, 166 (C.A.A.F. 2000). 
United States v. Jenkins, No. 06-0027/AF 

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 M.R.E. 513(a) sets forth the general rule of the 

psychotherapist-patient privilege: 

A patient has a privilege to refuse to 

disclose and to prevent any other person 

from disclosing a confidential communication 

made between the patient and a 

psychotherapist or an assistant to the 

psychotherapist, in a case arising under the 

UCMJ, if such communication was made for the 

purpose of facilitating diagnosis or 

treatment of the patient’s mental or 

emotional condition. 

M.R.E. 513(b)(4) defines a “confidential communication” as one 

“not intended to be disclosed to third persons other than those 

to whom disclosure is in furtherance of the rendition of 

professional services to the patient or those reasonably 

necessary for such transmission of the communication.” 

M.R.E. 513(d) establishes eight specific exceptions to the 

general psychotherapist-patient privilege, two of which are 

implicated in this case. M.R.E. 513(d)(4) states there is no 

privilege when a psychotherapist “believes that a patient’s 

mental or emotional condition makes the patient a danger to any 

person, including the patient.” M.R.E.(d)(6) further provides 

there is no privilege “when necessary to ensure the safety and 

security of military personnel, military dependents, military 

property, classified information, or the accomplishment of a 

military mission.” 
United States v. Jenkins, No. 06-0027/AF 

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Confidentiality

 The Government contends that Appellant’s communications to 

Dr. Budd were not protected by the psychotherapist-patient 

privilege because the communications were not confidential. It 

argues Appellant was ordered to undergo a mental evaluation by 

his commander, and the purpose of the evaluation was not to 

facilitate treatment, but to decide pretrial confinement matters 

and whether Appellant was a danger to himself or to others. 

In the alternative, the Government suggests that because 

Appellant knew that his commander, a third party, intended to 

review the evaluation, Appellant could not reasonably expect Dr. 

Budd to treat the communications as confidential. 

Air Force Instruction 44-109 “establishes rules for 

confidentiality” and “defines conditions requiring communication 

between mental health providers and commanders.” Dep’t of the 

Air Force, Instr. 44-109, Mental Health, Confidentiality, and 

Military Law (Mar. 1, 2000) [hereinafter AFI 44-109].1

 AFI 44-

 

1

 AFI 44-109 para. 2.1 states that: 

[c]ommunications between a patient and a 

psychotherapist . . . made for the purpose of 

facilitating diagnosis or treatment of the patient’s 

mental or emotional condition are confidential 

communications and shall be protected from 

unauthorized disclosure. However, confidential 

communications will be disclosed to persons or 

agencies with a proper and legitimate need for the 

information and who are authorized by law or 
United States v. Jenkins, No. 06-0027/AF 

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109 suggests that communications to a therapist retain their 

confidential character, even though the communications may be 

disclosed to a third party, including a commander, if the 

commander has a legitimate need for the information and is 

authorized by law or regulation to receive the communications. 

Attachment 2 to AFI 44-109 is a “Mental Health Clinic Client 

Information Sheet,” described as a consent form in the 

regulation, which is provided to patients prior to receiving 

treatment. It informs a patient that “[y]our provider will 

treat you as a responsible individual and will expect you take 

an active part in your treatment. . . . Generally, information 

discussed during the evaluation and treatment sessions is 

confidential . . . .” The document discusses only “treatment,” 

and does not distinguish between evaluations to decide pretrial 

confinement matters and evaluations to facilitate treatment. 

The form also states the following: 

Commanders may obtain access to the records of their 

members to ensure fitness for duty or a client’s 

record when the contents of mental health records are 

essential to the accomplishment of a military mission. 

. . . Providers must take steps to protect individuals 

from harm when the client presents a serious threat to 

the life or safety of self or others. 

The form does not indicate what effect, if any, disclosure for 

these purposes has on the confidentiality of communications for 

 

regulation to receive it, unless the evidentiary 

privilege . . . applies.
United States v. Jenkins, No. 06-0027/AF 

10

other purposes. On Appellant’s mental health evaluation, Dr. 

Budd wrote that he followed procedures outlined in AFI 44-109 

when conducting the evaluation. Under these procedures, 

Appellant should have received a copy of the consent form or a 

modified version prior to initiating his mental health 

evaluation. However, the record does not indicate whether or 

not he did, and thus we do no know what in fact Appellant was 

advised of regarding the confidentiality of his communications. 

In this context, we need not ultimately determine the 

meaning of AFI 44-109 in order to address the Government’s 

argument that Appellant’s statements were not confidential. 

Given Dr. Budd’s statement that he followed the regulation, the 

language of the regulation suggesting confidentiality of 

communications beyond the commander, as well as the absence of 

evidence in the record that Appellant was informed his 

communications would not be kept private, we will assume without 

deciding that Appellant’s communications were confidential. 

Exceptions to the Psychotherapist-Patient Privilege

 We now turn to the issue of whether Appellant’s statements 

to Dr. Budd fell within exceptions to the psychotherapistpatient privilege under M.R.E. 513(d)(4) and (6) and could 

properly be considered on sentencing. 

Appellant provides what is essentially a public policy 

rationale for why his statements fall within the general 
United States v. Jenkins, No. 06-0027/AF 

11

privilege under M.R.E. 513(a) and not within the exceptions to 

the privilege. Quoting to Jaffee v. Redmond, 518 U.S. 1, 10-12 

(1996), Appellant argues that “effective psychotherapy . . . 

depends upon an atmosphere of confidence and trust in which the 

patient is willing to make a frank and complete disclosure of 

facts, emotions, memories, and fears.” He contends that if the 

privilege is rejected here and his statements to Dr. Budd can be 

used as evidence against him, he will be punished for his 

candor, and other servicemembers facing similar circumstances in 

the future will not be forthright when communicating with mental 

health providers. 

Appellant also argues that the exceptions to the privilege 

outlined in M.R.E. 513(d)(4) and (6) are ambiguous and that it 

is unclear how severe his conduct must be before he is 

considered a danger to “any person” or himself, or is seen to 

compromise the “accomplishment of a military mission.” He 

asserts that a wide range of conduct could fall within the 

ambiguous contours of the exceptions, and the Government must 

resolve ambiguities by narrowly interpreting them. He 

characterizes any assertion that he is prone to violence as mere 

speculation, and he describes his conduct as falling outside the 

exceptions. 

In Jaffee the Supreme Court noted that society should 

encourage an individual to seek assistance from a 
United States v. Jenkins, No. 06-0027/AF 

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psychotherapist. 518 U.S. at 10-12; see also United States v. 

Rodriguez, 54 M.J. 156, 159 (C.A.A.F. 2000). Appellant may be 

correct that if statements made to a therapist can be admitted 

at a court-martial under one of the exceptions to the privilege 

outlined in M.R.E. 513(d), some servicemembers, knowing their 

statements may one day be used against them, may refrain from 

making frank disclosures during treatment. However, while 

M.R.E. 513 is based on Jaffee, the President, in promulgating 

M.R.E. 513, intended to adopt a rule that did not literally 

incorporate Jaffee, but instead “applies a more limited 

approach” to the psychotherapist-patient privilege. Rodriguez, 

54 M.J. at 160. The exceptions were drafted to limit the 

privilege in order to balance the public policy goals stated in 

Jaffee with “the specialized society of the military and 

separate concerns that must be met to ensure military readiness 

and national security.” Manual for Courts-Martial, United 

States, Analysis of the Military Rules of Evidence app. 22 at 

A22-44 (2005 ed.). 

Appellant also asserts that the exceptions to the privilege 

are ambiguous and that their application to him is therefore 

unfair. In particular, Appellant argues that the language 

removing the privilege when the patient is a danger to “any 

person,” or when “necessary to ensure the safety and security of 

military personnel . . . or the accomplishment of a military 
United States v. Jenkins, No. 06-0027/AF 

13

mission,” is so broad that a reasonable servicemember would not 

know what is or is not covered under the exceptions. Certainly, 

the M.R.E. text does not indicate each context in which the 

exceptions might apply. Whether the exceptions apply is 

necessarily a fact-specific determination for a military judge 

to consider with an accurate awareness of the facts underlying 

the dispute, just as hearsay determinations necessarily involve 

context. It is for this reason that the M.R.E. forego detailed 

analyses of their application in different factual scenarios, 

and it is for this same reason that a military judge’s 

evidentiary determinations are reviewed for an abuse of 

discretion. In our view, M.R.E. 513(d)(4) and (6) provide 

adequate and fair notice, informed by case law, as to their 

potential applicability. 

In this case, the military judge determined that 

Appellant’s mental state posed a risk to the safety of others or 

himself or to the accomplishment of a military mission, and his 

decision that Appellant’s statements were not protected by the 

privilege and were admissible on sentencing was not an abuse of 

discretion. Dr. Budd, a clinical psychologist with seventeen 

years of experience, wrote in his evaluation that Appellant’s 

mental health posed a danger to others. Appellant’s actions and 

his statements to Dr. Budd during treatment substantiated those 

findings. Appellant told Dr. Budd that he was arrested once for 
United States v. Jenkins, No. 06-0027/AF 

14

fighting while on leave. Two days before meeting with Dr. Budd, 

Appellant chased three airmen with a fourteen inch knife while 

shouting racist slurs. The following day, Appellant reiterated 

those threats, telling a friend that “If that guy from last 

night came around again, I would f****** kill him.” Appellant 

also communicated at that time that he would have cut the throat 

of his master sergeant the previous night if he had possessed a 

knife. 

Appellant told Dr. Budd that he had received four letters 

of reprimand for alcohol use and that he continued to drink 

heavily several times a week. Dr. Budd was also informed that 

Appellant was under investigation for illegal drug use. In 

addition, Appellant reported feelings of constant and chronic 

hostility, and indicated he felt an inability to control his 

anger. Dr. Budd conducted personality testing that confirmed 

Appellant experienced intense anger and was likely to act upon 

his impulses. Although we may not at this point be able to 

determine every context in which M.R.E. 513(d)(4) and (6) might 

apply, we conclude with confidence that the two exceptions were 

implicated when Appellant made threats to kill persons while 

brandishing a fourteen-inch knife. 

Based on this information, the military judge properly 

applied M.R.E. 513(d)(4) and (6) to Appellant’s communications, 

and he therefore did not abuse his discretion. 
United States v. Jenkins, No. 06-0027/AF 

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DECISION 

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.