Mental Competence and Responsibility in Courts-Martial

Evaluating Procedures and Proposing Refinements

By MAJ Victoria J. Bell

June 30, 2026 | Army Lawyer, 2026 Issue #2

Read Time: < 43 mins

RCM 706 in the 2019 edition of the Manual for Courts-Martial. (Credit: Katherine Hernandez)

Mental health issues in courts-martial present a distinct set of procedural and substantive challenges that differ from other aspects of military justice.1When an accused’s mental condition is at issue, two legally separate, but operationally intertwined, questions become relevant: whether the accused was mentally responsible at the time of the alleged offense and whether the accused is presently competent to stand trial. The Rules for Courts-Martial (RCM) provide mechanisms to navigate these questions, most notably through RCM 706 inquiries and RCM 909 competence determinations.2

RCM 706 governs the investigative process for appointed medical professionals to inquire into both an accused’s mental responsibility and mental competence.3These inquiries are generally referred to as “sanity boards.”4RCM 909 governs the judicial standard and process for protecting an accused’s constitutional rights by ensuring they are mentally competent to stand trial and, if they are not, the procedures that follow.5Together, these rules are intended to safeguard an accused’s constitutional rights6while allowing the court-martial process to proceed in a timely and orderly manner. However, their structure and sequencing can create unnecessary delay, duplicative processes, and uncertainty regarding how and when certain determinations should be made.

This article argues that targeted revisions to RCM 706 and RCM 909 would improve clarity and efficiency without altering their underlying purpose. Specifically, the current RCM 706 framework can better distinguish between mental competence and mental responsibility inquiries and streamline how those inquiries are conducted. The current RCM 909 framework can remove potentially problematic discretion throughout the process and clarify the procedural steps that follow a finding of incompetence. These changes would not diminish critical protections for an accused; rather, they aim to ensure those protections are applied in a more predictable and efficient manner.

To support this argument, this article proceeds in three parts. First, it outlines the legal distinctions between mental competence, mental responsibility, and partial mental responsibility, providing the doctrinal foundation necessary to understand how mental health issues arise in courts-martial. Second, it examines the current RCM 706 process, identifying areas where its structure may create inefficiencies or unnecessary overlap. Third, it analyzes the operation of RCM 909, focusing on how competence determinations are made and the procedural consequences that follow, and proposes revisions to clarify that process.

By clarifying the relationship between these rules and refining their procedural operation, the military justice system can more effectively address cases involving mental health issues while preserving both fairness and efficiency.

Distinguishing Mental Competence and Mental Responsibility

Mental competence and mental responsibility are distinct legal concepts that serve different functions in the court-martial process. Understanding that distinction is essential to identifying which inquiries are appropriate in a given case and then properly appling the procedures set forth in RCMs 706 and 909. Mental competence focuses on the accused’s present ability to understand the nature of the proceedings and assist in their own defense.7Mental responsibility, in contrast, addresses the accused’s ability at the time of the crime to understand and appreciate the wrongfulness of their actions.8Even when the standard for proving lack of mental responsibility is not met, evidence of a mental condition may still be relevant to disprove the intent element of a crime via partial mental responsibility.9

Mental Competence Focuses on the Accused’s Current Mental Capability

Mental competence focuses on the accused’s present ability to understand what is occurring and meaningfully assist in their own defense.10An accused is presumed competent unless the defense counsel brings evidence to the contrary.11Mental competence is essential because proceeding to trial with a mentally incompetent accused violates two critical constitutional protections afforded to every accused: due process and the right to a fair trial.12The defense has the burden of proving this by a preponderance of the evidence.13

The Fifth Amendment to the U.S. Constitution, in part, states, “No person shall be . . . deprived of life, liberty, or property, without due process of law.”14The Sixth Amendment, in part, guarantees that the accused has the right “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”15A mentally incompetent accused is not able to fully appreciate due process or to properly execute their right to confrontation because they can neither understand the current justice process nor assist their defense counsel.

Early on in battling the legal complexities surrounding mental competence, the courts were forced to clarify the standards for proving mental incompetence and the protections that should be afforded to the accused.16The courts have historically helped define a judge’s duty to protect an incompetent accused’s rights. In Pate v. Robinson, the Supreme Court held that the lower “court’s failure to make such inquiry [into the inmate’s competence to stand trial] deprived . . . [the inmate] of his constitutional right to a fair trial.”17In Drope v. Missouri, the Supreme Court again examined the issue of trying incompetent clients and its constitutional implications.18They reiterated their ruling from Robinson, stating that “the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.”19They further clarified the ruling by stating that

evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. . . . [T]he question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.20

Drope displays the complications and the sliding scale of mental competence, which is ever-changing. No single piece of evidence or fact can always point to an individual’s incompetence. This added complexity requires all parties involved in the process to analyze all the different facts as a whole to determine if there is a competency concern. This determination is very fact—and case—dependent, which makes identifying this issue a challenge for practitioners and judges.

The Supreme Court has defined this competence standard “as including both (1) ‘whether’ the defendant has ‘a rational as well as factual understanding of the proceedings against him’ and (2) whether the defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’”21“The question is whether the accused is possessed of sufficient mental power, and has such understanding of his situation, such coherency of ideas, control of his mental facilities, and the requisite power of memory, as will enable him to testify in his own behalf, if he so desires, and otherwise to properly and intelligently aid his counsel in making a rational defense.”22Examples of these factors may include an accused struggling to remember prior conversations, believing they are not facing court-martial, thinking their attorney is against them, or being unable to provide details to help in their own defense.

Moreover, just because an accused is competent one day does not mean that they are always competent, and attorneys and judges must constantly assess the current competence of the accused to protect their constitutional rights. Mental competence can impact the case at any point in the process, from investigation to sentencing. Nevertheless, the accused must be competent to ensure that justice is served and that convictions can survive appellate review.

Mental Responsibility Focuses on the Accused’s Capability at the Time of the Crime

While mental competence focuses on the accused’s current mental state, mental responsibility focuses on the accused’s mental state at the time of the commission of the offense.23Mental competence has constitutional implications, while mental responsibility is an affirmative defense.24The concept of mental responsibility originated in England in the early 1800s, where the M’Naghten (sometimes spelled McNaughten) rule was established.25

The M’Naghten rule arose from an 1843 case in England and offered the first legal test for criminal insanity.26In that case, the accused, Daniel M’Naghten, shot and killed the secretary to the prime minister (mistakenly believing the secretary was the prime minister) and claimed the murder was necessary because of a conspiracy against him.27The accused believed that if he did not commit this murder, he himself would be killed because of this alleged conspiracy.28The jury found M’Naghten not guilty “by reason of insanity,” and the public outrage surrounding the verdict prompted the creation of a structured test for criminal insanity, known as the M’Naghten rule.29Under this test,

all defendants are presumed to be sane unless they can prove that—at the time of committing the criminal act—the defendant’s state of mind caused them to (1) not know what they were doing when they committed said act, or (2) that they knew what they were doing, but did not know that it was wrong.30

A portrait illustration of Daniel M'Naghten (here spelled McNaughten). (Source: Bethlem Museum of the Mind)

That test became the standard for determining insanity in the United States, where it continues to serve as the test for insanity in about half of the states.31

The MCM provides its own affirmative defense of lack of mental responsibility. It reads, “[A]t the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.”32Here, the burden rests solely on the defense to prove the lack of mental responsibility by clear and convincing evidence.33Before 1984, the burden rested on the Government to establish the accused’s mental responsibility beyond a reasonable doubt.34An executive order in June 1987 significantly changed the 1984 MCM, including changing the standard to the accused being presumed mentally responsible, shifting the burden to the defense, and decreasing the standard of proof to that of any affirmative defense.35

Consequently, the presumption is that the accused is mentally responsible for their crimes,36and the factfinder determines if that is not the case.37The uphill battle any accused faces in proving a lack of mental responsibility is the objective standard that the factfinder applies to the analysis. This objective standard judges wrongfulness by societal standards, not by the accused’s personal belief at the time of the wrongfulness of their acts.38Societal standards are based on those of people who are not suffering from a mental disease or defect. The defense must also pinpoint and prove that the accused was suffering from a severe mental disease or defect at the exact time the crime occurred; just proving it existed during the general period is not enough, and proving it existed before or after the crime occurred may be insufficient as well.39

Meeting this burden does not automatically render the accused not guilty. The rule allows the factfinder to consider three different findings: guilty, not guilty, or not guilty because of lack of mental responsibility.40The factfinder, therefore, can be presented with evidence for the defense of lack of mental responsibility but be unpersuaded and still find the accused guilty; the defense is not an automatic bar to conviction, even with some supporting evidence. However, a counsel’s analysis on the subject should not stop just because a client’s mental defect does not rise to the level of lack of mental responsibility. When this high threshold is not met, partial mental responsibility is still an available option that can assist counsel in disproving the intent element of a crime.

Partial Mental Responsibility

As discussed above, lack of mental responsibility is an affirmative defense. However, if the accused has a mental disease or defect that does not meet the lack of mental responsibility standard, the defense can still use it to disprove an element of the crime. The U.S. Court of Appeals for the Armed Forces (CAAF) states the following regarding partial mental responsibility: “[A] mental condition not amounting to a lack of mental responsibility is not an affirmative defense, but may be admissible to determine whether [the accused] entertained the state of mind necessary to prove an element of the offense.”41Such mens rea elements can include “premeditation, specific intent, knowledge, or willfulness.”42While RCM 916, which covers defenses (including lack of mental responsibility), confirms that “[a] mental condition not amounting to a lack of mental responsibility . . . is not an affirmative defense,”43the discussion to this rule offers the same language as CAAF regarding admissibility.44The defense does not bear the burden of proof for partial mental responsibility.45

Partial mental responsibility is a lower standard than lack of mental responsibility. Partial responsibility occurs “[i]f admissible evidence suggests that the accused, for whatever reason, including mental abnormality, lacked mens rea, the factfinder must weigh it along with any evidence to the contrary.”46Partial mental responsibility evidence is treated like any other evidence that the defense may provide in a trial to attack the Government’s burden to prove that the accused is guilty beyond a reasonable doubt.47Military judges use Department of the Army Pamphlet 27-9, Military Judges’ Benchbook (Benchbook), to determine the proper instructions to read to the panel.48Instruction 5-15 sheds some light on how to handle partial mental responsibility in a trial.49When evidence of partial mental responsibility is offered, the judge will instruct the factfinder that

[t]his evidence was not offered to demonstrate or refute whether the accused is mentally responsible for (his) (her) conduct. Lack of mental responsibility, that is, an insanity defense, is not an issue in this case. (What is in issue is whether the Government has proven beyond a reasonable doubt that the accused had the ability to (act willfully) (entertain the (premeditated design to kill) (specific intent to ______)) (know that ______) (______).).50

This instruction further sheds light on the Government’s burden to prove guilt beyond a reasonable doubt.51Benchbook instruction 6-5 states:

It is essential that you remember that the defense of lack of mental responsibility and the defense of partial mental responsibility are separate and distinct. For the defense of lack of mental responsibility, the burden is on the defense to prove, by clear and convincing evidence, the accused’s lack of mental responsibility. On the other hand, any evidence of partial mental responsibility may be considered by you in deciding whether the Government has proven beyond a reasonable doubt that the accused had the required (state of mind) (specific intent) to commit the offense. The same evidence, however, may be considered with respect to both types of defenses.52

This instruction again establishes the Government’s burden to prove guilt beyond a reasonable doubt.53These instructions highlight the intricacies of partial mental responsibility and the difficulties panel members face in making a complicated factual determination. Mental responsibility is very fact-dependent, and the factfinder must weigh all the evidence before determining guilt beyond a reasonable doubt.

Understanding these three distinct ways mental disorders can come into play throughout a case is vital to determining the appropriate procedural path to take, some of which begin with RCM 706.

RCM 706: “Inquiry into the mental capacity54or mental responsibility of the accused”55

RCM 706 governs medical inquiries into the accused’s mental state.56 It authorizes convening a board of qualified professionals to evaluate whether a mental competence or lack of mental responsibility issue exists with the accused.57A board can be called at any point in the court-martial process,58and given the time necessary to complete one, it should be done as early as possible to prevent undue delay. If counsel waits until the case is referred, docket dates will likely change because the case will be halted pending the completion of the RCM 706 board.59

Requesting a board earlier in the process will ensure completion before any court dates are docketed. Understanding the purpose of RCM 706 and the history of an accused’s mental health is necessary for counsel to determine whether an RCM 706 board is required, and, if it was conducted properly.

The Current RCM 706 Board Process

The responsibility of raising the issue of an accused’s competence or mental responsibility rests on all players in the court-martial process. RCM 706 states at the outset that, as an initial action,

[i]f it appears to any commander who considers the disposition of charges, or to any preliminary hearing officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused.60

Defense counsel, who, in practice, have the most insight regarding the accused, are typically expected to best know when an inquiry is necessary;61nonetheless, all parties have this duty. If the Government recognizes concerns surrounding either mental capacity or responsibility, it should initiate this request. As the appointing authorities’ legal advisor, the Government has special access and trust that the defense counsel does not have, and is better suited to process the inquiry request.62

Previously, ordering an RCM 706 inquiry fell outside the military judge’s purview until the referral of the case.63Now, the rule allows the convening authority or a judge to order an RCM 706 board pre-referral.64This allows a judge who understands the implications, process, and standard to act early and order an RCM 706 board, which helps protect the accused’s rights and supports an efficient judicial system. Waiting until after referral can cause issues with the docket and significant delays in the proceedings.

Confusion surrounds the RCM 706 request process. In practice, before referral, the covening authority can deny an RCM 706 board request, necessitating a motion hearing for a judge to rule on whether an RCM 706 board is needed.65However, the courts have routinely determined “that a motion on behalf of an accused for a mental examination, made in good faith and not frivolous, must be granted.”66While “the terms ‘good faith’ and ‘frivolous,’ in this setting, have not been defined in military law,”67the threshold is low. Unless no evidence exists to support a concern regarding the accused’s mental state, a request should not be denied.68Caselaw reveals that appellate courts are reluctant to support denial.69Nonetheless, a denial was approved where a “request for a sanity board was a subterfuge for obtaining a delay in the trial to adequately defend his client.”70Therefore, while these boards should not be used as a delay tactic, if requested in good faith, Government counsel should not oppose them.

A board is appointed once the RCM 706 appointment memo is sent to a medical office for processing.71Walter Reed National Military Medical Center is usually the designated medical office, and it will use that appointment memo to determine which personnel should be assigned to the case.72RCM 706 requires that “[e]ach member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist.”73Routinely, the appointed members are with the Center for Forensic Behavioral Sciences at Walter Reed. This program is “the U.S. military’s only postdoctoral forensic psychology fellowship, and it is the only two-year forensic psychology fellowship currently operated in the United States. It is also currently the only APA-accredited postdoctoral fellowship in forensic psychology.”74

Routinely, a psychologist is appointed to this board, and a psychiatrist at Walter Reed is there to consult.75In practice, it takes, on average, about two months from the sanity board’s appointment for it to render results.76The inquiry usually consists of an average of one day’s worth of interviews with the accused, which occur after the board has reviewed the evidence of the court-martial and any relevant health records.77Additional medical referrals or testing, such as an MRI scan of the accused’s brain, may be required.78If additional testing is required, it could lengthen the time needed to complete the RCM 706 board.

Once all evaluations are completed, two reports are composed: one that only answers the questions disclosed to the “officer ordering the examination, the accused’s commanding officer, the preliminary hearing officer, if any, . . . and to all Government and defense counsel in the case, the convening authority, and, after referral, to the military judge.”79The other is a long-form report given to the defense (and the commanding officer upon request) that includes the accused’s statement and more details regarding their mental health.80

While these procedural steps may seem clear enough to follow, once someone understands the purpose of an RCM 706 board and looks closely at the rule’s plain language, it becomes evident that the rule seems to consilidate mental competence and mental responsibility, making its requirements and purpose unclear.

Proposed Changes to RCM 706

Ensuring Only Matters Relevant to the Inquiry Are Addressed

Rule 706 contradicts itself. The first part of the rule seems to allow for flexibility: subsections (a), (b)(1)-(2), and (c)(2) permit the notifying party to specifically state in their RCM 706 order whether there is a mental competence issue, a mental responsibility issue, or both.81However, in every instance, the rule then requires the board to answer specific questions, which require determining both mental competence and mental responsibility.82RCM 706(c)(2) states,

Matters in inquiry. When a mental examination is ordered under this rule, the order shall contain the reasons for doubting the mental capacity or mental responsibility, or both, of the accused, or other reasons for requesting the examination. In addition to other requirements, the order shall require the board to make separate and distinct findings as to each of the following questions:

By requiring the board to consider both issues every time in subsections (C) and (D) above, regardless of the actual concern of the requesting parties, the rule itself collapses the distinct meanings of mental capacity and mental responsibility.

RCM 706(a), which details the process for ordering a board, permits doing so when “there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial.”84Sebsections (b)(1) and (b)(2) state that “an inquiry into the mental capacity or mental responsibility of the accused may be ordered . . . .”85As noted above, subsection (c)(2) begins by stating, “When a mental examination is ordered under this rule, the order shall contain the reasons for doubting the mental capacity or mental responsibility, or both.”86

However, as also quoted above, the rule then goes on to mandate that both matters of capacity and responsibility must be addressed by requiring the board to answer all questions listed in subsections (c)(2)(A)-(D).87In practice, this leads counsel and board members to believe that, regardless of the particular issue raised in the order, the board must address both every time.

Walter Reed Medical Center. (Source: Walter Reed - Tricare.mil)

To avoid this confusion, and to avoid the additional time and resources necessary to make irrelevant or unnecessary competence or responsibility determinations, RCM 706(c)(2) should be rewritten to clarify that the board needs to answer only those questions relevant to the actual concerns raised regarding the accused’s mental state. In turn, it should also emphasize that the requestor must explicitly state what the board needs to evaluate: mental competence, mental responsibility, or both. If the parties disagree over which determination is needed, the opposing party should make a motion to the judge to determine what the order should contain. Empowering the requestor to identify which determinations are relevant and, therefore, required focuses the board members’ time and resources and, in turn, increases the process’s efficiency.

Under this proposed RCM 706(c)(2), when mental competence is the only matter requested for inquiry, the board should only be required to answer the questions listed in 706(c)(2)(B), identifying the clinical psychiatric diagnosis, and 706(c)(2)(D), which requires the determination of whether the accused is suffering from a mental disease or defect that makes them unable to understand the proceedings or assist their counsel in their defense.88

When mental responsibility is the only matter requested for inquiry, the board shall answer only the questions contained in RCM 706(c)(2)(A), (B), and (C); these questions address whether the accused suffered from a severe mental disease or defect at the time of the alleged wrongdoing, the clinical psychiatric diagnosis, and whether the accused was unable to appreciate the wrongfulness or nature of their actions.89Only when the requestor raises concerns regarding both mental competence and mental responsibility will the board answer all the questions laid out in RCM 706(c)(2).

Ensuring Proper Board Composition

The rule’s language regarding the board’s composition should also be revised to improve clarity, efficacy, and efficiency. Currently, RCM 706(c)(1) states,

When a mental examination is ordered under subsection (b) of this rule, the matter shall be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist.90

A staff member at Walter Reed Army Institute of Research-West conducts a survey and timed response test on a Soldier. (Credit: Christopher Nititham, Hannah Covington)

First, it should remove any reference to a “physician” generally and replace it with a forensic psychiatrist or forensic psychologist. Using the umbrella term “physician” means clinical doctors with potentially little to no experience with mental health disorders could be appointed to the board and satisfy RCM 706(c)(1) as written. Any primary care physician should not be permitted to determine whether an accused is mentally competent or responsible if it is outside the scope of that person’s expertise. This change would ensure that only individuals who have the experience and qualifications to make RCM 706 determinations are on the board. Changing this would remove the need for the rule’s vague statement that normally, it is a psychologist or psychiatrist who sits on the board. The rule should require having at least a forensic psychiatrist or, preferably, a forensic psychologist on the board. A forensic psychologist is preferred due to their ability to do a wide range of testing that a forensic psychiatrist cannot do.

As such, understanding the difference between psychiatrists and psychologists is helpful for counsel navigating this process. Psychiatrists “are medical doctors who can diagnose and treat mental health disorders through a combination of therapy, medication, and other medical interventions. . . . They have the authority to prescribe medications and perform medical procedures related to mental health.”91On the other hand, psychologists “have advanced degrees in psychology . . . [and] are trained to diagnose and treat mental health disorders through various forms of therapy, including cognitive behavioral therapy, psychoanalytic therapy, and dialectical behavior therapy.”92

Psychologists are generally better suited to diagnose diseases such as schizophrenia.93Psychologsists, unlike physchiatrists, are uniquely trained to administer IQ tests and other psychological and diagnostic examinations to help clarify diagnoses.94Psychologists are also specially trained in interviewing, which often yields better information from the accused.95

The rule should also explicitly permit expert consultants to satisfy the RCM 706 evaluation requirement. Doing so would allow the defense to utilize the expert consultant whose presence is already routinely required in these situations to diagnose the accused and expedite this lengthy process. While a misconception exists that a defense consultant would diagnose to benefit the accused, CAAF has observed time and again that doctors’ opinions are not influenced by who employs them.96In United States v. Best, CAAF examined a possible conflict of interest among RCM 706 board members arising because two of the three members “had previously assessed [the accused’s] mental condition.”97The court ruled that

because even an expansive interpretation of RCM 706 does not suggest such an intent by the drafters, we decline to read that rule so as to contain a per se exclusion from participation in examining boards of practitioners who have either treated or diagnosed the subject of such a board.98

In reaffirming the court’s belief that military psychiatrists and psychologists can and do remain neutral in their professional assessments of the accused’s mental conditions, the court reiterated that it is “certain that” military psychiatrists do not “shirk [their] professional responsibilities because they are employees of the United States.”99

In that regard, an individual appointed by Walter Reed or a qualified expert consultant for the defense are all equally capable of making the factual determinations RCM 706 requires of the board. Thus, the rule should state that its requirements can be satisfied by a qualified, appointed defense expert consultant, so long as they answer the specific RCM 706(c)(2) questions relevant to the proponent’s concerns and produce the short and long forms required by RCM 706(c)(3).

On the other hand, the accused’s current mental health provider should not be permitted to satisfy the RCM 706(c)(3) requirement. Most of these individuals are not forensic psychologists and do not have the expertise to accurately make the relevant determinations. Rather, these providers are typically social workers or psychologists or psychiatrists who are not forensically qualified.

Rewriting the rule to tailor the requirements of the inquiry and both clarify and expand who is qualified to fulfill them will assist both counsel and board members in efficiently determining the accused’s relevant mental state. It will also ensure that the rule does not unnecessarily conflate the important legal and procedural distinctions between mental competence and mental responsibility. Moreover, allowing expert consultants to satisfy the requirements of RCM 706 will streamline the process and enable competency hearings to occur faster.

RCM 909: “Capacity of the accused to stand trial by court-martial”100

While RCM 706 is a tool to assess whether the accused is mentally competent, mentally responsible, or both, RCM 909 is a tool meant only for those accused who are potentially mentally incompetent.101The RCM 909 process protects the accused’s constitutional rights to due process and to a fair trial and ensures that only those competent enough to stand trial are brought to a court-martial.102In an RCM 909 hearing, the judge makes a factual determination whether a client is incompetent and should be sent to inpatient treatment to gain competence.103The current RCM 909 states,

No person may be brought to trial by court-martial if that person is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against them or to conduct or cooperate intelligently in the defense of the case.104

As a general starting point, courts presume that the accused has “the capacity to stand trial unless the contrary is established.”105The rule requires that “the accused ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and . . . a rational as well as factual understanding of the proceedings against him.’”106 Competence is a question of fact that the judge determines at this RCM 909 hearing.107 If the accused is found incompetent, it does not mean that they will never regain competence; it simply means that, at this moment, they cannot be tried.

Understanding the importance of the RCM 909 hearing and its purpose in protecting the accused’s constitutional rights is key to ensuring justice is properly served. In addition to knowing the parameters that trigger the need for an RCM 909 competency hearing and the process surrounding it, practitioners must have a strong grasp on the rule’s procedures and requirements to ensure the judge is provided with all of the information needed to make a determination.

The Current RCM 909 Process

Mental competence determinations carry different procedural implications depending on whether they occur before or after referral. Pre-referral, the Government maintains discretion regarding the disposition of the case. Post-referral, this discretion is limited, and the military judge assumes authority over the subsequent proceedings.

If, pre-referral, an RCM 706 board concludes that an accused is mentally incompetent, “the convening authority before whom the charges are pending for disposition may disagree with the conclusion and take any action authorized under RCM 401, including referral of the charges to trial.”108If the special court-martial convening authority (SPCMCA) concurs with the RCM 706 incompentence determination, it “shall forward the charges to the general court-martial convening authority [(CGMCA)].”109If the GCMCA agrees that the accused is mentally incompetent, then it “shall commit the accused to the custody of the Attorney General.”110If the GCMCA disagrees with the board’s findings, it “may take any action that he or she deems appropriate in accordance with RCM 407, including referral of the charges to trial.”111

The process is similar for cases that fall under the special trial counsel’s (STC) purview.112If the STC has exercised its authority in that case and the GCMCA disagrees with the board’s findings of incompetence, they must “notify special trial counsel who may take any action authorized under RCM 401A, including referral of charges.”113However, if the GCMCA agrees with the board’s findings, they “shall notify special trial counsel and commit the accused to the custody of the Attorney General.”114

Thankfully, regardless of whether the case falls under the STC’s authority, the rule allows the judge to step in at either party’s request to “conduct a hearing to determine the mental capacity of the accused in accordance with RCM 309 and RCM 909(e) at any time prior to the referral.”115

RCM 909 in the 2019 edition of the Manual for Courts-Martial. (Credit: Katherine Hernandez)

Pre-referral, the SPCMCA and the GCMCA have discretion in determining whether to agree with the board or to continue with the court-martial process. Without any argument or evidence, this non-medical expert can make the decision to assume the risk, disagree with medical professionals, and continue with the referral of charges. Before referral, no trigger exists to force an RCM 909 hearing on the matter. This is concerning because the rule allows an unqualified non-medical individual whose interests conflict with those of the accused to unilaterally make a decision regarding competency and choose to move forward with the charges. Going against the board’s findings potentially introduces issues to raise on appeal and further delays the process because once the case is referred, the defense will take time to bring this to the court’s attention.

Post-referral, less leeway exists.116Note that an RCM 706 board is not a prerequisite to an RCM 909 hearing.117If an RCM 706 inquiry has not occurred, the judge has more discretion regarding whether to conduct an RCM 909 board.118Unlike pre-referral RCM 909 determinations, the judge “may conduct a hearing to determine the mental capacity of the accused, either sua sponte or upon request of either party.”119In the absence of an RCM 706 determination, deciding whether to conduct a hearing is at the judge’s discretion. However, if an RCM 706 board concludes that an accused is mentally incompetent, “the military judge shall conduct a hearing to determine the mental capacity of the accused.”120

Regardless whether the RCM 909 hearing occurs pre- or post-referral, the procedures and standards are the same. Similar to mental responsibility, mental competence is a question of fact.121This includes the judge’s inquiry of the accused and their evaluation of the accused’s actions during the court-martial process.122The standard is “preponderance of the evidence that the accused is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case.”123The judge starts with the presumption that the accused is competent.124The moving party, which is usually the defense, has the burden of proving by a preponderance of the evidence that the accused is incompetent.125This entails more than proving that the accused has been diagnosed with a mental disease.126

Suppose the judge determines that the accused is not competent by a preponderance of the evidence. In that case, the rule requires that “the judge shall report this finding to the general court-martial convening authority, who shall commit the accused to the custody of the Attorney General.”127This allows the accused to be hospitalized per 18 U.S.C. § 4241(d).128Hospitalization is required regardless of whether there is a belief that treatment will change the accused’s mental condition: “The plain meaning of this phrase is, and we hold it to be, that once a defendant is found incompetent to stand trial, a . . . judge has no discretion in whether or not to commit him.”129

The duration of treatment is not defined clearly, but the RCM 909(f) discussion, referencing 18 U.S.C. § 4241(d), states that it “not exceed four months.”130“However, in determining whether there is a substantial probability the accused will attain the capacity to permit the trial to proceed in the foreseeable future, the accused may be hospitalized for an additional reasonable period of time.”131In practice, the Federal Bureau of Prisons will conduct an evaluation after four months of hospitalization to determine the accused’s competence.132At this point, there is almost a burden shift, where “the burden is ultimately on the Government to come forward with evidence on the likelihood of the defendant’s recovery.”133

The time required to get the accused into a Federal facility to restore competence can further delay the court-martial process. Even though 18 U.S.C. § 4241 requires an assessment after four months, it usually takes much longer to transport the accused to the facility to begin the initial assessment.134This delays the process, risks a decline in the accused’s mental health, and makes it hard for counsel to continue working on the case, as the accused cannot make any decisions regarding their case or assist in their defense.

If the accused is found incompetent or if the likelihood of regaining competence is determined to be low, a “dangerousness hearing” may occur.135In order to have a dangerousness hearing, charges must first be dismissed, and, “[i]f charges are dismissed solely due to the accused’s mental condition, the accused is subject to hospitalization as provided in 18 U.S.C. § 4246.”13618 U.S.C. § 4246 would then require a hearing to “determine whether the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another.”137The standard at this hearing is also a preponderance of the evidence.138If the burden is met, the accused will be once again released to the Attorney General.139This hospitalization has no timeline, and the accused will be released once another court hearing determines that they are no longer a threat to society.140

Being ruled incompetent but no longer a threat to society does not mean the accused gets to go home a free person; they could be involuntarily committed for a period much longer than the jail sentence they were facing. The process of restoring competence is not an exact science and depends on each individual’s facts and circumstances. The lengthy process of restoration leaves the case in limbo, possibly for years, which emphasizes the importance of understanding the process and purpose of RCM 909.

Proposed Changes to RCM 909

Competency issues make cases complicated, and clearer rules would benefit not only the judge and counsel, but also the parties and their pursuit of justice. The current rules give too much discretion to the convening authorities and STC to decide whether a competency hearing should occur if an RCM 706 board has determined that the accused is incompetent. If an RCM 706 board finds the accused incompetent, an RCM 909 hearing should be the next step. The rule is also unclear regarding whether an RCM 706 hearing is necessary after the hospital provides notice that the accused has regained competence; it should be required, as the Federal mental health facilities and the military have different methods of inquiry regarding competence.141

First, the wording regarding pre-referral determinations by the convening authority or STC should change to require a competency hearing when they disagree with the RCM 706 board’s findings. Below is the current RCM 909(c) with proposed changes in bold and replaced language struck through:

1. For offenses over which special trial counsel has not exercised authority or has deferred, if an inquiry pursuant to RCM 706 conducted before referral concludes that an accused is suffering from a mental disease or defect that renders him or her mentally incompetent to stand trial, the convening authority before whom the charges are pending for disposition may disagree with the conclusion and take any action authorized under RCM 401, including referral of the charges to trial. If that convening authority concurs with the conclusion, the convening authority shall forward the charges to the general court-martial convening authority. If, upon receipt of the charges, the general court-martial convening authority similarly concurs, then the general court-martial convening authority shall commit the accused to the custody of the Attorney General. If the general court-martial convening authority does not concur, that authority shall direct the Government counsel to request a hearing in accordance with RCM909(e). may take any action that he or she deems appropriate in accordance with R.C.M. 407, including referral of the charges to trial.

2. For offenses over which special trial counsel has exercised authority and has not deferred, if an inquiry pursuant to R.C.M. 706 conducted before referral concludes that an accused is suffering from a mental disease or defect that renders him or her mentally incompetent to stand trial, the general court-martial convening authority may disagree with the conclusion and notify special trial counsel who shall request a hearing in accordance with RCM909(e). may take any action authorized under R.C.M. 401A, including referral of charges. If the general court-martial convening authority concurs with the conclusion, that authority shall notify special trial counsel and commit the accused to the custody of the Attorney General.

3. Upon request of the Government or the accused, a military judge may conduct a hearing to determine the mental capacity of the accused in accordance with RCM 309 and RCM 909(e) at any time prior to referral.142

Since neither the STC nor the GCM-CA is a medical provider, they should not be allowed to unilaterally disagree with the RCM 706 board and choose to refer the case anyway. They should be required to automatically send the action to the judge to hold an RCM 909 competency hearing, which this proposed revision ensures. This revision takes the discretion away from non-medical parties interested in a particular outcome and gives it directly to a non-biased expert: the military judge. RCM 909 hearings are not complex; their proceedings are based on the RCM 706 report and board members. Even if the RCM 909 hearing determines the accused is competent for trial despite the board determining otherwise, the time taken is worthwhile to protect both the process and the case on appeal. The risk of delay caused by a required RCM 909 hearing that may be deemed “unnecessary” is less than the risk of delay in denying the hearing just for the accused being found incompetent months later, after referral occurs. Of course, if the RCM 706 board determines the accused is competent, an RCM 909 hearing need not occur.

Second, the rule needs to clearly state the process to occur if the accused is found mentally incompetent and sent to regain competence. The current RCM 909(f) states:

Hospitalization of the accused. An accused who is found incompetent to stand trial under this rule shall be hospitalized by the Attorney General as provided in subsection 4241(d) of title 18, United States Code. If notified that the accused has recovered to such an extent that he or she is able to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense of the case, then the general court-martial convening authority shall promptly take custody of the accused. If, at the end of the period of hospitalization, the accused’s mental condition has not so improved, action shall be taken in accordance with section 4246 of title 18, United States Code.143

The new RCM 909(f) should state:

1. For an accused who is found incompetent to stand trial under this rule, the convening authority shall be hospitalized by the Attorney General as provided in subsection 4241(d) of title 18, United States Code.

2. If notified that the accused has recovered to such an extent that he or she is able to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense of the case, then the general court-martial convening authority shall promptly take custody of the accused. Upon custody returning to the general court-martial convening authority, an inquiry pursuant to RCM 706 shall be conducted to verify the accused’s current competence and address mental responsibility, if mental responsibility is at issue. If an inquiry pursuant to RCM 706 occurred prior to hospitalization, unless otherwise impractical, this RCM 706 board should be comprised of the same members who sat on the pre-hospitalization RCM 706 board.

The proposed RCM 909(f)(2) clarifies a point of confusion among practitioners on whether a new RCM 706 board should be conducted after the facility makes a finding of competence. An RCM 706 board is essential at this time to ensure the accused is competent under the RCM 706 standard, because, in practice, it has been this author’s experience that in determining competence, Federal facilities answer a different set of questions than those required of the RCM 706 board.144Mandating a new RCM 706 board will also prevent delays in filing and arguing an RCM 706 motion, as it will be an automatic board with, when possible, the same members as the original RCM 706 board.

These changes should resolve the timing issues and confusion regarding incompetent clients under the rule.

Conclusion

Cases that involve questions about an accused’s mental health make managing an already complex legal process even more complicated and require careful navigation of both substantive law and procedural safeguards. The distinction between mental competence, mental responsibility, and partial mental responsibility provides the foundation for that process and informs how the RCM are applied in practice. When those distinctions are clearly understood, counsel and judges are better positioned to identify the appropriate inquiry and employ correct procedural tools at each stage of the case.

Once parties understand the issues at play in the case, they can proceed in utilizing the tools that RCM 706 and RCM 909 provide to protect the accused’s constitutional rights while allowing the court-martial process to proceed. As currently structured, however, aspects of these rules can create inefficiencies or uncertainty in application, particularly with respect to the scope of RCM 706 inquiries and the procedural steps that follow competency concerns under RCM 909.

Refining RCM 706 to better align the scope of the inquiry with the specific issues raised—mental competence, mental responsibility, or both—would focus the evaluation process and reduce unnecessary duplication. Similarly, clarifying the procedural pathways under RCM 909 would provide greater predictability for counsel, convening authorities, and military judges, while ensuring that competency determinations are made through a consistent and transparent process.

Understanding the reasoning behind legal terms, rules, and their purpose is key to an efficient, knowledgeable, and fair military justice system. Cases involving mental health issues are fact-intensive and time-sensitive, and the procedural framework governing them should therefore support accuracy and efficiency. By clarifying how RCM 706 and RCM 909 operate individually and in concert, the system can better ensure that cases are resolved in a manner that is fair, legally sound, and procedurally efficient.

Notes