United States v. Lange

MILLER, Judge

(concurring in result):

The only difference between the jurisdictional facts of the instant case and those of its companion, United States v. Brace, 11 M.J. 794, (A.F.C.M.R. 1981), is that here, in addition to the facts of Brace, evidence was admitted which established that the accused was at the time of the alleged offense a participant in a base drug rehabilitation program.

In my opinion, admission of evidence concerning the accused’s participation in such a drug rehabilitation program constituted clear error.1 Nevertheless, the rationale expressed in United States v. Brace, supra, convinces me that, even without reference to the erroneously admitted evidence, ample facts remain which clearly establish jurisdiction. Ergo, the error was not prejudicial. I concur in the result.

Nevertheless, before closing, I am constrained to review and further comment upon what I regard as my brethren’s continuing misinterpretations of Air Force Regulation 30-2, Social Actions Program, 8 September 1976, Air Force Manual 111-1, Military Justice Guide, 25 August 1975, and Public Health Service, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. §§ 2.1-2.67-1 (1978).

On 21 April 1981 this Court in its first interpretation of these three regulations, stated:

Read conjunctively, the general effect of these regulations is to prohibit anyone, other than the accused, from introducing, in criminal proceedings, any information about, or gained as a result of, his participation in an Air Force drug rehabilitation program. The result, then, is an extraordinarily broad evidentiary exclusionary privilege that is automatically invoked on behalf of the accused, unless he specifically directs otherwise. [Footnotes omitted]

United States v. Cottle, 11 M.J. 572, 574 (A.F.C.M.R. 1981).

Less than three months later, Senior Judge Arrowood and Judge Mahoney, speaking for the Court, limited Cottle’s general holding by ruling in United States v. Schmenk, 11 M.J. 801 (A.F.C.M.R. 1981) and United States v. Schrock, 11 M.J. 797 (A.F. C.M.R. 1981) that drug rehabilitation information could properly be considered by *887post-trial review authorities when exercising their clemency function, with or without the consent of the accused.

On 21 July 1981, the same majority further limited Cottle, supra, this time ruling that prior to referral of charges, the convening authority may consider drug rehabilitation information for the purpose of determining whether to refer such charges to trial. United States v. Jones, 11 M.J. 817 (A.F.C.M.R. 1981).

Here, my brothers say the regulations permit the introduction of drug rehabilitation material at trial, itself, so long as it is not presented to the triers of fact for use in directly determining the guilt or innocence of the accused.

Not only does such a ruling misinterpret the combined effect of AFR 30-2, AFM 111-1, and 42 C.F.R. §§ 2.1-2.67-1, for the reasons stated in United States v. Cottle, supra, and my dissents in Schmenk, supra, and Jones, supra,2 but it effectively overrules one specific holding of Cottle, to wit:

Consequently, no information resulting from or concerning an individual’s participation in an Air Force drug rehabilitation program is admissible at Air Force courts-martial unless a specific basis for its admission is first shown to be in compliance with the cited regulatory provision. [Footnotes omitted]

United States v. Cottle, supra, at 574.

In my opinion, my brethren have today subtly crossed the line from colorable interpretative arguments centering on the meaning of the regulatory term “criminal proceedings” to a judicial invalidation of perfectly clear regulatory provisions. Because the underlying purpose of these regulations is the protection of the personal interests of airmen volunteering to participate in the Air Force’s drug rehabilitation program, the government should have been required to abide by its own regulations. United States v. Russo, 1 M.J. 134 (C.M.A. 1975).

. United States v. Cottle, 11 M.J. 572 (A.F.C. M.R. 1981).

. Actually, the prohibitions of these regulations not only clearly prohibit information pertaining to an accused’s participation in a drug rehabilitation program from being admitted at his court-martial, but they also provide strict confidentiality prohibiting disclosure outside the court room. In effect, the Air Force tells its airmen, if you volunteer for our drug rehabilitation program, we pledge we will never disclose any facts regarding your participation in it to anyone, unless you personally request it in writing.