Army Non-Disclosure Agreement: a primer
An Army Non Disclosure Agreement is a legally binding contract between the U.S. Army and its personnel in which the parties agree not to disclose information learned or distributed while on active duty. Such agreements are designed to protect sensitive information such as military strategies, information on weapon systems, troop movements and anything else that could cause harm to U.S. interests if disclosed. The agreements can be used with civilian contractors and private enterprises in addition to military personnel.
Like commercial NDAs, military non-disclosure agreements typically have a number of specific elements so as to accurately and practically lay out the scope and implications of the agreement . First, the NDA must define the confidential information in question, and how it can be validly disclosed. In the case of the Army, this may be relatively simple as much of the information is highly classified. NDAs also have specific time frames in which the information is confidential, as well as what the penalties are for disclosure, and whether it covers certain circumstances in which the information can be revealed, even to other military personnel.
An Army NDA protects military secrets from being revealed without permission, and ensures that any disclosures are entirely voluntary and with the practical understanding of the other party. The penalty for the violation of NDAs is typically expulsion from the Army or criminal prosecution and jail time.
Common provisions of an Army NDA
Army non-disclosure agreements typically include many of the same provisions as NDAs for civilians. However, there are a few terms that are especially relevant to military personnel and which should be given special attention when considering an NDA for military personnel.
Confidentiality obligations: This is by far the most common provision in any NDA and is the section that is often the most confusing. It is the part that requires the NDA signatory keep all of the information secret. Generally, the NDA signatory can use the confidential information he or she obtains only for the agreed purpose set forth in the NDA. The NDA signatory also typically agrees not to disclose such information without the permission of the disclosing party or the disclosing party’s authorized representative.
Duration of secrecy: This is the part of the NDA that specifies the period of time during which the NDA signatory must keep the disclosing party’s information secret. While the typical civilian NDA may have a period of one or two years, the length of secrecy for an Army NDA is longer. Most Army NDA’s have a period of 5 or 10 years after termination of the NDA, in effect extending the period of confidentiality even after the NDA is signed.
Exceptions to disclosure: Confidentiality obligations do not apply to information that is publicly known (meaning it is publicly available through websites, social media or publications) before the NDA is signed; independently discovered by the NDA signatory (the NDA signatory learns of the information without using or referencing the information obtained during the NDA period); already known to the NDA signatory before signing; disclosed to the NDA signatory by a third party that has the right to disclose the information; received from a government agency; or used with the disclosing party’s permission.
Additional terms that may be included in an Army NDA: Some NDAs also contain further provisions, such as the following:
The NDA signatory agrees not to bring any claims against the disclosing party after signing the NDA. The NDA signatory acknowledges his/her obligation to comply with the laws of the United States, the Army regulations and the DOD policy. The NDA signatory agrees to participate in the Army ethics program and to abide by the directions of his/her chain of command. The NDA signatory understands that his/her ability to access the information agreement to be kept secret is dependent upon his/her cooperation with Army rules and regulations. The NDA signatory agrees that he/she must continue to protect the disclosure party’s proprietary information after the NDA is signed even if they separate from the Army, retire, resign from the Army or otherwise leave the Army.
Army NDA violations: criminal penalties
Violating an Army Non-Disclosure Agreement carries serious legal ramifications. The Army utilizes Non-Disclosure Agreements, which are generally phrased in the most expansive manner possible, with the effect of keeping the domains of discussion and disclosure as vague as possible so as to circumscribe or preclude as many exempted categories of information as possible.
As a result, and particularly for military personnel and civilian employees of the Department of the Army, one does not need to divulge the most classified of classified information in order to be in violation of a Non-Disclosure Agreement. Any disclosure in the broad realms of operations, intelligence, personnel actions, and logistics, may constitute a breach of that agreement. In cases of highly classified information, the sanction for violating the Non-Disclosure Agreement is a Letter of Reprimand given that the released information is considered to be highly damaging to the nation.
However, military personnel can face even more severe punishment as outlined in the Uniform Code of Military Justice (UCMJ), up to and including imprisonment. Under Article 134 of the UCMJ, which covers approximately 60 different crimes, "conduct of a nature to bring discredit upon the armed forces" is a specifically enumerated crime. Thus, even if a military personnel cannot be prosecuted under an offense the government has specifically coded as a crime, that individual may nevertheless be tried under Article 134. Violations of the terms of Non-Disclosure Agreement may be charged as violations of Article 134, which is punishable by confinement for six months, forfeiture of two-thirds’ pay for six months, and/or dishonorable discharge.
On the other hand, if the information leaked has not been designated as highly classified, the Army can and will impose a Letter of Reprimand under Air Force Regulations 36-2903 and 16-1806. Army Regulation, AR 600-37, which governs the imposition of Letters of Reprimand, says that "letters of reprimand, admonitions, or censure may be issued to members of the Army…to correct, to instruct, to admonish, or to warn." In addition, a Letter of Reprimand may result in significant career consequences for military personnel. A Letter of Reprimand will remain on a service member’s OMPF indefinitely, which may seriously impact chances for promotions and career advancement.
For civilian employees of the Department of the Army, 5 C.F.R. ยง 752.201(a) permits the Army to take an action against a GS level employee from grades 5-12 for "good cause" for "such cause as will promote the efficiency of the service." If the Gaither Report of 1970 is to be followed, the Army could probably just issue a letter of reprimand or a suspension from duty for no more than 10 days. However, there may be many restrictions on the Army taking actions against civilian employees. For example, the Department of the Army must alter an employee’s position to an involuntary reassignment from one position to another, or demote or suspend an employee for more than 14 days, the Department must adhere to the provisions of 5 U.S.C. Chapter 75. The employee in such circumstances is entitled to notice and a pre-termination hearing. The Army must provide an employee with a written decision stating its reasons for the termination.
In the end, the consequences of violating an Army Non-Disclosure Agreement is that the violator may, at the very least, suffer a Letter of Reprimand, and, at the worst, criminal prosecution and hard time in the Federal Penitentiary.
Are Army NDAs like civilian NDAs?
While the general notions of confidentiality and trade secrets are more or less equally understood across the board, there are certain key distinctions between the concept of an Army NDA (non-disclosure agreement) and civil non-disclosure agreements that must be noted. First, Army NDAs (and the regulations that govern their use) have the authority of a legal publication, as discussed previously, and thus have the weight of law when it comes to any disputes or enforcement. Conversely, civilian NDAs are subject to state contract and employment law rules and are enforceable in civil court. However, getting to that point is a bit more involved when it comes to Army NDAs, which may only be litigated in the Court of Appeals for the Armed Forces – which is the equivalent of a court of last resort.
Army NDAs are generally included in either a security clearance application (in the case of key personnel) or in standard agreements with contractors or employees that will require access to classified information. This means anyone who is in command of , responsible for, working on, or otherwise involved with any component or part of classified information will be subject to an Army NDA. Civilian NDAs have a narrower scope, or at least can cover only those areas of confidentiality agreed upon by the signing parties.
Enforcement of Army NDAs is exclusively a matter for military law and courts, while questions of enforcement for civilian NDAs usually fall under civil law jurisdiction at the state level. There are offsetting factors on either side: Army NDAs may have exclusive jurisdiction to the point at which a soldier attempts to leave service with classified information, while civilian NDAs have no such means of enforcement and any breach of NDA would have to be evaluated under contractual and tort principles applicable to breaches of discussion, confidential relationships, or (potentially) violations of state espionage laws.
Army NDAs: current issues and trends
Over the last number of years there has been an increase in high profile, well publicized cases where former service members have been caught on tape soliciting defense secrets from a foreign government. One such case involved a retired US Army colonel and former U.N. arms inspector who was sentenced to 10 years in prison after pleading guilty to receiving bribes from a Chinese businessman in exchange for sensitive or classified defense information that he had access to as both a security officer at the U.N. and a defense attache to the Chinese mission. More recently , in January of this year, a former contractor for the Army was arrested and charged with attempting to communicate, deliver, and transmit defense documents to persons not entitled to receive them. Even these cases however may be eclipsed by the more recent arrest of an Army reservist last month on espionage charges related to communications with a Russian intelligence officer. His involvement allegedly began in 2008 when he met the Russian through a matrimonial website and they began a long-term personal relationship.