United States v. Gray

COX, Judge

(dissenting):

The accused was convicted of cocaine and marijuana use in June 1988. Prior to his trial, he was a participant in an Air Force program which assigned him to serve his military duty attending a civilian university as a full-time student. During that program, the accused, other participants in the program, and ROTC cadets were required to submit to annual urinalysis inspections. The specimen provided by the accused in June 1988 tested positive for cocaine and marijuana metabolites, indicating recent use of both drugs. An expert testified and explained the tests. The certified issue does not relate to this urinalysis.

As noted by the Court of Military Review:

[The accused] took the stand and testified he had never, during his entire lifetime, used marijuana or cocaine. He also testified that he had participated in urinalysis testing a year before and the results were negative. Considerable evidence about the [accused’s] good character, reputation for truthfulness, and outstanding military record was also placed before the factfinders, much of it contained in a stipulation of fact entered into by the parties. In rebuttal the Government’s forensic expert was recalled. He testified he had examined a copy of the lab report regarding the earlier test (RIA screening test data) reported as negative. Trial counsel asked, “does the sample show the presence of any THC?” Over defense objection, the witness was permitted to testify that it did, but at a level below the Department of Defense (DOD) cut-off for reporting a positive result. The RIA screening test *233data was itself then admitted as a prosecution exhibit.

Unpub. Op. at 2 (emphasis added).

I adhere to my view in United States v. Arguello, 29 MJ 198, 207 (CMA 1989) (Cox, J., concurring in the result), that neither party ought to be able to make headway from a “negative” urinalysis. The prosecutor is barred from using it affirmatively, not because it lacks probative value, but because appropriate higher authority has granted a form of limited immunity to those whose results fall under certain limits. The defense can hardly claim that a “negative” test proves non-use unless the analysis detects no metabolites present.

If, however, an accused or his counsel is foolish enough to initiate the claim or implication that a “negative” result proves non-use, when in fact it does not, then I am hard-pressed to understand how the defense can complain when the prosecution merely sets the record straight in rebuttal. Nothing in the regulation suggests that it was intended to be a vehicle for misrepresentation.

In fact, precisely the contrary is the case: Results obtained from command-directed testing ... may not be used against the member in any disciplinary action under the UCMJ, ... However, the limitations of this paragraph on the use of the results do not apply to:
(1) The introduction of evidence for impeachment or rebuttal purposes in any proceeding in which the evidence of drug abuse (or lack thereof) has been first introduced by the member.

Para. 5-8b., AFR 30-2 (August 19, 1988).

I would reverse the decision of the United States Air Force Court of Military Review.