An RCM 706 board, called a sanity board in practice, is a formal mental health evaluation ordered when there is reason to question whether the accused had the mental capacity to be held responsible for the alleged conduct, or whether the accused is currently competent to stand trial. Done right, it is one of the most powerful tools in court-martial defense.
The board examines four questions.
- First, did the accused suffer from a severe mental disease or defect at the time of the alleged conduct?
- Second, what is the clinical psychiatric diagnosis?
- Third, was the accused, as a result of that disease or defect, unable to appreciate the nature and quality or wrongfulness of the conduct?
- Fourth, does the accused currently suffer from a mental disease or defect that prevents understanding the proceedings or cooperating intelligently in the defense?
The “insanity” defense requires the accused to prove by clear and convincing evidence that the answer to the first and third questions is yes. That is an extremely high standard that is almost never met.
The defense doesn’t apply to personality disorders, nonpsychotic behavioral conditions, or patterns of conduct that are only antisocial. Most accused who undergo a 706 evaluation don’t meet the standard, but that doesn’t make the 706 board useless. Far from it.
Even when the insanity defense is off the table, the full board report produces a detailed psychological and psychiatric history that can be extraordinarily valuable at sentencing. Trauma history, cognitive limitations, mental health treatment records, childhood circumstances, and the results of a full battery of psychological testing all go into that report. That material can reframe the sentencing story in ways that reduce confinement significantly.
And it is confidential. The prosecution doesn’t receive the full report. Neither does the judge. They receive only a summarized version of the board’s ultimate conclusions. The full report, including all testing data, goes to the defense alone.
Defense counsel reviews that full report and decides whether and how to use it. Sometimes it is a goldmine. Sometimes it opens doors better left closed. Experienced counsel know the difference before deciding how to proceed.
Getting the Evaluation Right: Two Moves That Make the Difference
A sanity board ordered by the government and staffed by government-employed clinicians is not automatically a fair evaluation. It is a process, and like any process it can be done well or done poorly. A defense counsel’s job is to make sure it is done right, and to intervene early enough to set up the evaluation correctly before it has been conducted and the conclusions have been written rather than challenge them after the fact.
That intervention starts before the 706 is even ordered.
The First Maneuver: An Expert to Evaluate Whether a Board Is Warranted
When the file contains any indication of mental health history, trauma, cognitive limitations, or unusual behavior around the time of the alleged offense, the first step is retaining or consulting a forensic psychologist to review the available records and advise whether a sanity board is warranted at all.
United States v. Garries established the three-part test military courts use to evaluate defense requests for government-funded expert assistance. The defense must show
- Why the expert is needed
- What the expert will do, and
- Why counsel can’t perform those services without help
Defense counsel are not clinicians, but they need to be conversant enough in the relevant mental health issues to spot the indicators in the file, assess their significance, and have a productive conversation with a forensic psychologist before any formal request is made. That preliminary conversation typically happens informally, as a professional courtesy, before any appointment or funding is sought. At this stage, however, the psychologist is not yet a member of the defense team and is not covered by the attorney-client privilege or the protections that attach once formal appointment is made. Counsel have to be careful about what they share. The case file doesn’t go to the psychologist at this point. The conversation is based on a careful and limited briefing of the relevant facts, enough to get a professional assessment of whether the mental health questions are significant, without disclosing materials that could create problems if the informal consultation goes no further.
This is one of the purposes of the formal appointment request. Once the psychologist is designated as a member of the defense team under United States v. Toledo and Military Rule of Evidence 502, the full cloak of confidentiality attaches. The psychologist can receive the entire file, discuss the case freely with counsel, conduct whatever interviews and assessments are warranted, and provide opinions that are protected from disclosure. Getting to that point requires the formal Garries request, which is why the preliminary consultation is designed to generate just enough professional foundation to support it.
If that preliminary conversation supports the conclusion that a board is warranted, counsel now have a stronger foundation for the 706 request to the convening authority, because a qualified forensic psychologist has already identified the issues that make it necessary, without having been given access to materials that could complicate the process. If the psychologist concludes no board is warranted, counsel have avoided a process that might produce unhelpful findings and the confidentiality risks that come with a full evaluation going sideways.
The same rationale applies when the first board comes back and the defense believes it was inadequate. Before requesting a second board from the convening authority, counsel retains or consults a forensic psychologist to review the first board’s findings and methodology. If that expert can identify specific deficiencies, the request for a new board is grounded in a professional critique rather than a general objection. That is the difference between a motion that persuades a judge and one that doesn’t.
The Second Maneuver: Inserting the Expert Into the Board’s Process
When a board is ordered by the court, the defense has a second opportunity to ensure the process is fair. The court’s order governing the board can and should require the board to consult with the defense’s forensic psychologist on the appropriate testing methodology before the evaluation begins. If the board disagrees with the defense expert’s recommendations on what testing is warranted, the order directs them to report that disagreement to the judge for resolution.
This is not an attempt to take over the government’s evaluation. It is a transparency measure that serves everyone in the courtroom, including the judge. Military judges don’t want to preside over a 706 process that produces an inadequate evaluation and creates an appellate landmine. When defense counsel come to the judge with a well-supported request to insert a qualified forensic psychologist into the board’s methodology, framed as a measure to ensure the evaluation meets the required standard, judges are likely to grant it or some version of it. The alternative is a board that operates without any check on its testing choices, produces conclusions that might not withstand scrutiny, and creates the kind of record that creates post-trial litigation and embarrassment. Judges want a clean record first and foremost, and they don’t like inadvertently drawing attention from appellate courts.
By the time the board reports its findings, the defense expert has reviewed the file, advised on testing, and is positioned to evaluate the board’s conclusions against the methodology they recommended. If the board followed the recommendations and produced a thorough evaluation, the defense has confidence in the findings and can decide how to use them. If the board deviated from the recommendations without adequate justification, or produced conclusions the defense expert can identify as methodologically deficient, the defense has a fully developed record to support a motion for a new board.
Why the Order Itself is Part of the Defense Strategy
The request for a sanity board goes first to the convening authority. If a second board becomes necessary, that request goes back to the convening authority as well. The judge becomes involved only when the convening authority refuses a request that is clearly warranted. At every stage, the defense request should be comprehensive, specific, and detailed enough to guide whoever ultimately issues the order.
The order governs everything the board does. A vague order inevitably leads to a sloppy or incomplete evaluation. An order that simply directs a board to answer the four RCM 706 questions, requires that at least one member be a psychiatrist or clinical psychologist, and instructs the board to review the charge sheet and service records that comply with RCM 706. It will produce a report that answers the four questions. But it provides no quality control. It doesn’t require forensic specialization. It doesn’t specify what testing should be conducted. It doesn’t give the defense any role in shaping the methodology. It assumes the board will exercise sound judgment on its own, which might or might not happen depending entirely on who gets assigned. There is high variance in competence from one examiner to the next. A minimal order does nothing to account for that variance.
A well-drafted order does more. It requires forensic credentials and experience in competency determinations in criminal proceedings. It mandates a full battery of psychological testing including intelligence indicators and personality inventories. It requires interviews with family members, coworkers, and acquaintances where appropriate. It directs the board to consult with the defense’s appointed expert on testing methodology. And it requires the board to report any disagreement with those recommendations to the judge for resolution before proceeding.
When defense counsel submit a detailed, well-supported request to the convening authority with draft order language attached, it does several things at once. It demonstrates that counsel have done the work. It makes it easy for the convening authority or judge to issue a good order rather than a conclusory one. And it creates a record: if the convening authority issues a minimal order and the resulting board is inadequate, the defense already has the record showing exactly what was requested and why. That record supports the motion for a new board, and it supports the appellate argument if the motion is denied.
A thorough, well-conducted sanity board serves everyone in the courtroom. Getting there requires defense counsel who knows what a thorough evaluation looks like, asks for it specifically from the first request forward, and has the network of experts to back up every step of that process.
When to Challenge the Board
A 706 board that doesn’t meet the required qualifications, failed to review relevant records, spent inadequate time with the accused, or produced conclusions that conflict with other evidence in the file should be challenged. Defense counsel can argue the board was insufficient and seek a second evaluation. The challenge has to be specific and supported; a detailed critique from a qualified forensic psychologist who can identify exactly what the board missed or got wrong is gold. That expert, obtained through the Garries process, is often the same one who advised on whether the board was warranted in the first place and helped shape its methodology. By the time a challenge becomes necessary, the defense is not starting from scratch. The groundwork was laid at the beginning.
Why the Process Itself Is the Point
A sanity board almost never produces a successful insanity or incompetency defense. That is not why savvy experienced defense counsel request them. The 706 process works on multiple levels simultaneously, and most of those levels have nothing to do with the four questions the board is asked to answer.
The confidential mitigation record is the most reliable return. In the majority of serious courts-martial where a 706 board is properly conducted, the full report contains material that reframes the sentencing narrative in ways that will reduce potential punishment. That material belongs to the defense. The prosecution never sees it unless counsel decides to use it. The decision about whether and how to deploy it belongs entirely to counsel, made after reviewing the complete picture with no obligation to disclose what was found.
The process also applies institutional pressure that has its own value. A properly litigated 706 request costs the government time, money, and administrative attention at every stage. The initial request to the convening authority requires a response. A motion to compel requires briefing and a hearing. A challenge to an inadequate board requires the government to defend the quality of its own evaluation. Each step adds stress to a prosecution timeline that OSTC is trying to manage efficiently. A case that is more expensive and more complicated to prosecute is a case that gets evaluated more carefully for deferral.
The expert appointment process and insisting on the proper framework for a sanity board establish something else: who the most knowledgeable people in the room are. A defense team that arrives with a qualified forensic psychologist who has already reviewed the file, influenced the board’s methodology, and critiqued its findings is a defense team that has demonstrated it understands this case at a level the government has to take seriously. That credibility carries into every subsequent proceeding, including the conversations with OSTC that happen outside the courtroom. Prosecutors who recognize they are dealing with counsel who know the science, have the expert network, have high credibility with the judge, and will fight every step of the process make different decisions about how hard to push a case than prosecutors who believe they have the room to themselves.
None of this requires the board to find anything that supports an insanity or incompetency defense. The board works when it finds something useful for mitigation. It works when it doesn’t, because the process of getting there put pressure on the government, established the defense team’s credibility, and produced a confidential record that informed counsel’s strategy going forward. A 706 board done right never produces nothing. The question is always what it produced and what to do with it..
FAQ: The RCM 706 Sanity Board
When should my attorney request a sanity board?
Whenever there is any evidence in the file suggesting mental health history, trauma, cognitive limitations, prior psychiatric treatment, or unusual behavior around the time of the alleged offense. The request doesn’t require certainty that a defense exists. It requires a reasonable basis to inquire. The cost of not requesting one, when the full report could have produced significant mitigation, is a cost paid at sentencing.
Does requesting a sanity board mean I’m claiming I’m crazy?
No. A 706 board evaluates both competency and mental responsibility, but requesting one doesn’t commit the defense to raising an insanity defense. Most clients who go through a sanity board are found competent and don’t have a per se mental health defense. The board produces a detailed psychological history that the defense reviews confidentially. Whether any of that material is used at trial is the defense’s decision, not the board’s.
What does the board actually do?
Ideally, the board conducts a comprehensive evaluation: interviews with the accused, review of law enforcement reports, service records, medical and mental health records, and where appropriate, interviews with family members, coworkers, and acquaintances. The accused submits to a battery of psychological testing that can include intelligence indicators, personality inventories, and other assessments relevant to the questions the court has ordered the board to answer.
Who sees the results?
The board prepares two reports. The summarized report, containing only the board’s ultimate conclusions, goes to the command, both counsel, the convening authority, and the military judge. The full report, including all testing data and materials the board relied on, goes only to the defense. The prosecution doesn’t receive the full report unless the defense introduces it or relies on it at trial, which can waive the confidentiality protection. That decision belongs to defense counsel, and it should be made deliberately.
Can I have input into what testing the board conducts?
Yes, if a defense counsel drafts the order correctly. In cases we handle, we include language directing the board to consult with our appointed forensic psychologist on the testing methodology. If the board disagrees with our expert’s recommendations, they are required to report that disagreement to the court. That structure gives the defense a meaningful role in shaping the evaluation before it happens, rather than simply receiving whatever the board decided to do on its own.
What if the board’s conclusions seem wrong or incomplete?
Challenge it. A board that lacked proper forensic credentials, failed to review relevant records, or produced conclusions inconsistent with other evidence in the file can be challenged as constitutionally inadequate, and a replacement board can be requested. The challenge has to be specific. An appointed forensic psychologist who can review the board’s methodology and findings, identify the deficiencies, and support the motion for a new board is essential to making that argument effectively.
What is the difference between competency and mental responsibility?
Competency is about the present: can the accused currently understand the proceedings and cooperate in the defense? Mental responsibility is about the past: did the accused have the mental capacity to be held responsible for the alleged conduct at the time it occurred? The 706 board addresses both. A finding of incompetency halts the proceedings until competency is restored. A finding that the accused lacked mental responsibility at the time of the offense is the basis for an insanity defense at trial, which the accused must prove by clear and convincing evidence.
What happens if the panel finds me not guilty by reason of lack of mental responsibility?
It doesn’t mean you go home. Within 40 days of that verdict, the court-martial conducts a post-trial hearing to assess whether release would create a substantial risk of bodily injury or serious property damage. The accused bears the burden of proving release is safe. If the offense involved bodily injury or serious property damage, the burden is “clear and convincing evidence”. If it didn’t, the burden is “preponderance” (the lower standard of “more likely than not”). If the accused can’t meet that burden, the military might transfer custody to the Attorney General for further treatment and observation. A not guilty by reason of insanity verdict is not an exit. It is a different kind of proceeding with its own risks.
Is the insanity defense worth raising?
Rarely, and only when the evidence clearly supports it. The standard is demanding, the burden is on the accused, and a not guilty by reason of insanity verdict carries its own consequences. In most cases where a 706 board is ordered, the more valuable outcome is not a mental responsibility finding but a detailed mitigation record that gives the defense real ammunition at sentencing. That is where the board earns its keep in the majority of serious courts-martial.
Facing a Court-Martial? The Time to Act Is Before the Board Convenes
The mitigation value of a properly conducted 706 evaluation depends entirely on when counsel gets involved and how well they manage the process from the first request forward. By the time charges are preferred and trial is approaching, some of those opportunities are already gone. If you are under investigation or have been charged, call us at 800-319-3134. We have pioneered and mastered the moves discussed on this page, to make sure our clients are treated fairly.