dissenting:
Appellant asserts that the military judge erred by failing to grant his motion to suppress the evidence of the second urinalysis. He argues first that the policy letter (Appendix) did not create an inspection under Mil.R.Evid. 313(b) because the purpose of a second test was punitive and not motivated by inspection standards (unit health, welfare, and readiness, etc.), but rather based upon the commander’s “individualized ‘reasonable suspicion’ less than probable cause.” United States v. Valenzuela, 24 M.J. 934, 938 n. 6 (A.C.M.R.1987).
*644Appellant then argues that because the second test was not an inspection and was based upon reasonable suspicion rather than probable cause, it was a command directed test to determine appellant’s fitness for duty pursuant to para. 10-3a (1), Army Regulation 600-85, Personnel-General: Alcohol and Drug Abuse Regulation (3 November 1986) [hereinafter AR 600-85].
Once a soldier has been identified as positive for drug use it follows that a commander having knowledge of that fact would suspect the soldier of drug use. Under those circumstances, a retest based solely on the first positive, whether directed by policy letter or individually directed, is a command directed test “[t]o determine fitness for duty and the need for counseling, rehabilitation, or other medical treatment.” Table 6-1, p. 43, AR 600-85. See also paras. 4-6a and 10-3a (1), AR 600-85. The regulation in Note 2 of Table 6-1 states that “[t]his category refers to a soldier for whom the commander has a reasonable suspicion has ingested drugs or alcohol as opposed to probable cause that the soldier has ingested drugs or alcohol” and further specifically prohibits use of test results for disciplinary action under the Uniform Code of Military Justice.
I believe that AR 600-85 recognizes the limits placed upon us by the Fourth Amendment, applies, and is dispositive. The majority’s position that appellant was not singled out is a legal fiction created in order to fit inspection rationale. The commander specifically by name directed that appellant be tested among 27 other soldiers randomly selected. My brothers hold that the second test was a “reasonable,” permissible inspection. They balance the need for a drug free military against the intrusion. I find their reasoning understandable and acceptable only if I first accept that soldiers are not protected by the Fourth Amendment.1 This search was beyond question focused on a single individual, based upon stale information, and conducted without probable cause.2 In almost 30 years of military service as an enlisted soldier, line officer, and attorney I have seen few, if any, procedures I find more dangerous to the rule of law. We cannot simply override rights granted in the Constitution by regulation or policy. Soldiers do not forfeit their rights under law upon enlistment. Indeed, because of their service and potential sacrifice, their rights as citizens must and should be carefully protected. My brothers have in this case sanctioned the extension of “inspection procedures” to the point that it mocks the concept of justice under law.
I would set aside the findings of guilty of and dismiss Charge I and its Specification, and reassess the sentence.
APPENDIX
5TH INFANTRY DIVISION (MECH)
FORT POLK, LOUISIANA 71459
20 MAY 87
CAV-A
SUBJECT: Commanders Policy Letter
# 10-Alcohol and Drug Abuse
1. It is obvious that the use of controlled substances is illegal and will be punished under the provisions of the Uniform Code of Military Justice. Alcohol abuse will be treated in an equally serious manner when it interferes with the efficient performance of an individual’s duties or when an individual’s actions reflect discredit upon the unit.
2. Abuse of any drug, and for purposes of this policy statement alcohol will be considered a drug, is detrimental to unit performance, compromises individual integrity and ultimately endangers the health and welfare of the abuser and those who work around him. I have tasked the chain of command to be aggressive in the identification of potential drug and alcohol abusers.
*6453. The Troop A Alcohol and Drug Abuse Prevention Program is based upon several principles:
A. Drugs are illegal and will not be tolerated.
B. Possession of any drug related apparatus or paraphernalia is strictly prohibited and personnel in violation of this policy are subject to punishment under provisions of Article 15 UCMJ.
C. Each man is assumed to be capable of acting in a mature manner in his consumption of alcoholic beverages. Consequently, alcohol may be in an individual’s possession in the billets but must be under lock and key during duty hours. As this is a privilege, it will be revoked anytime an individual demonstrates an inability to deal with this responsibility.
D. Due to the hazardous nature of our profession, absolutely no alcoholic beverage will be consumed during duty hours. Exceptions to this rule for section or troop parties will be requested in writing through the 1SG or the Troop Commander.
E. No alcohol will be transported to the field or consumed during field training exercises.
F. Any individual prescreened positive during monthly random urinalysis testing will be rescreened during the following months urinalysis.
4. The Alcohol and Drug NCO will conduct semi-anual education classes, supervise random urinalysis at the commanders direction, assist individuals who desire to seek voluntary counseling and coordinate mandatory referral of individuals involved in drug or alcohol related incidents to the Alcohol and Drug Control Office.
5. The Troop A chain of command is prepared to assist any individual in the search for either medical assistance or alternatives to drug or alcohol abuse. An individual who voluntarily offers information concerning problems will not be prosecuted provided he has not come forward with the knowledge that he is about to be apprehended. Individual soldiers are encouraged to exert positive peer pressure and “clean” their own ranks of the alcohol or drug abuser. Our profession is too dangerous and too important to tolerate less than 100% effort from each other.
/s/ Mark S. Lake
Mark S. Lake
CPT, Cavalry
Commanding
. There is support for the proposition that soldiers have no or at least should have no Fourth Amendment protection in barracks. See United States v. Moore, 23 M.J. 295, 299-300 (C.M.A.1987) (Cox, J., concurring in the result).
. The military judge found that there was no probable cause to search but that the second test was merely a continuation of an inspection.