Wade v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

VICTOR L. WADE,
Plaintiff-Appellee

v.

UNITED STATES,
Defendant-Appellant
______________________

2016-2263
______________________

Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00814-TCW, Judge Thomas C.
Wheeler.
______________________

Decided: October 31, 2017
______________________

WILLIAM CASSARA, William E. Cassara, PC, Evans,
GA, argued for plaintiff-appellee.

DANIEL S. HERZFELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellant. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., STEVEN J. GILLINGHAM; ADAM B. YOST,
Office of the Judge Advocate General, United States
Department of the Navy, Washington, DC.
2 WADE v. UNITED STATES

______________________

Before PROST, Chief Judge, CLEVENGER and STOLL,
Circuit Judges.
PER CURIAM.
The United States appeals from the Court of Federal
Claims’ decision reversing the decision of the Board for
Correction of Naval Records (“Board”) denying Victor
Wade’s request for record correction and military backpay
after a positive cocaine urinalysis. Wade v. United States,
126 Fed. Cl. 638, 640–42 (2016). The Court of Federal
Claims found the Board’s decision arbitrary, capricious,
an abuse of discretion, and not supported by substantial
evidence. Id. at 645. Because the Board’s decision was
supported by substantial evidence and was not arbitrary,
capricious, or contrary to law, we reverse.
BACKGROUND
Mr. Wade served as a petty officer in the Navy for
over 18 years without any disciplinary incidents. In 2007,
Mr. Wade tested positive for cocaine after undergoing a
random urinalysis. After reviewing the urinalysis test
result and obtaining expert confirmation that the positive
result was not due to Mr. Wade’s medical prescription,
the Navy charged Mr. Wade with violating Uniform Code
of Military Justice (“UCMJ”) Article 112a, 10 U.S.C.
§ 912a, Wrongful Use of a Controlled Substance. Mr.
Wade consented to the imposition of a non-judicial pro-
ceeding under UCMJ Article 15 (10 U.S.C. § 815(b)).
I. Non-Judicial Proceeding
At his non-judicial hearing, Mr. Wade pled not guilty
before his commanding officer and elected not to make a
statement on the charge or the positive urinalysis. Mr.
Wade’s commanding officer determined that Mr. Wade
had committed the offense after considering, inter alia,
the urinalysis test result and expert statement validating
WADE v. UNITED STATES 3

the test result, and imposed a non-judicial punishment,
which included a reduction in rank, geographic re-
striction, extra duties, and forfeiture of one-half month’s
pay for two months.
Mr. Wade appealed his non-judicial punishment to
the regional Navy Commander, stating that he felt “the
maximum punishment” was “not fair and undeserving
under the circumstances.” J.A. 1111. Although Mr. Wade
did not “dispute the integrity of the Navy Drug Lab,” he
“persistently [reaffirmed] that [he had] not and will not
ever use any type of illegal drugs intentionally.” Id. Mr.
Wade also submitted a letter attesting to his character
written by his supervisor at a security firm where he had
taken a second job as a security officer to help support his
family. The Navy Commander reviewed Mr. Wade’s
arguments and submitted materials and ultimately
denied the appeal, finding the punishment awarded
“within legally permissible limits” and “neither unjust nor
disproportionate.” J.A. 1106.
II. The Separation Proceeding
Mr. Wade was subsequently subjected to a mandatory
administrative separation proceeding, which the Navy
imposes upon the finding of a positive drug test result
unless it was caused by administrative error or sanc-
tioned reasons. Mr. Wade had previously acknowledged
the risk of being subjected to additional administrative
action when he accepted a non-judicial proceeding in place
of a formal courts-martial proceeding. J.A. 1101–02
(“[A]cceptance of nonjudicial punishment does not pre-
clude further administrative action against me. This may
include being processed for an administrative discharge,
which could result in an other than honorable dis-
charge.”).
One week before Mr. Wade’s separation board hear-
ing, Mr. Wade’s counsel asked the Navy for permission to
conduct an independent DNA test of Mr. Wade’s urine
4 WADE v. UNITED STATES

sample. Because the Navy understood Mr. Wade to be
contesting the chain of custody for the sample, it con-
firmed with personnel in the chain of custody that there
was “no discrepancy with the collection and transporta-
tion of the urine sample” to the testing facility, J.A. 1244–
46, and denied Mr. Wade’s request.
At his separation hearing, the separation board con-
sidered evidence offered by the Navy, including the posi-
tive urinalysis test, testimony from witnesses regarding
the chain of custody of the test, and an expert witness
who explained the positive test result. Mr. Wade’s coun-
sel cross-examined the witnesses and did not object to the
Navy’s denial of Mr. Wade’s request for an independent
DNA test of the urine sample.
The separation board also heard from character wit-
nesses, and from Mr. Wade himself, who testified regard-
ing his family, children, and his second job at the security
firm. During the hearing, Mr. Wade advanced an inno-
cent ingestion theory. He suggested that that he may
have unknowingly ingested cocaine because his drink
might have been spiked in retaliation for his imposition of
disciplinary actions on unruly individuals while working
as a security guard. Mr. Wade testified that the individu-
als knew that Mr. Wade was in the military and presum-
ably knew the consequences of a positive drug test.
During the hearing, the separation board also elicited
Mr. Wade’s acknowledgement that he lied twice during
his appeal process. First, Mr. Wade lied to his supervisor
at the security firm about the reason that he was eliciting
a character reference letter. Instead of telling his super-
visor about the drug charge, Mr. Wade told her that he
needed the reference because “he had been involved in an
incident about being deployed overseas and it involved an
officer.” J.A. 1055. At the hearing, Mr. Wade testified
that “I felt it was in my best interest not to tell her” the
truth. J.A. 1068. Second, Mr. Wade lied about never
WADE v. UNITED STATES 5

having used illegal drugs even though he had previously
admitted to using marijuana one time prior to service, as
reflected in his pre-enlistment file.
After considering all of the evidence and deliberating
for thirty-three minutes, the separation board found that
the Navy showed, by a preponderance of the evidence,
that Mr. Wade had committed the offense. The separa-
tion board recommended that, considering his prior
commendable service, Mr. Wade receive a General (Under
Honorable Conditions) Discharge from the Navy. J.A.
1071–72, 1235.
Mr. Wade’s commanding officer denied Mr. Wade’s
challenge to the separation board’s recommendation and
ultimately concurred with the separation board’s recom-
mendation to separate Mr. Wade. The Chief of Naval
Personnel concurred with the recommendation of the
separation board and Mr. Wade’s commanding officer, and
ordered Mr. Wade’s separation. The Navy separated Mr.
Wade after 19 years, 6 months, and 22 days on active
duty.
III. Board for Correction of Naval Records
Mr. Wade appealed his non-judicial punishment and
discharge to the Board three times. The Board denied
each of Mr. Wade’s appeals after determining that it was
“unable to find any evidence that the [non-judicial pro-
ceeding] was not conducted in compliance with Part V of
the MCM,” 1 and that “the [commanding officer] properly
considered the positive urinalysis in making his decision
that [Mr. Wade] wrongfully used cocaine.” J.A. 1006–07.
The Board held that it “was not persuaded that the [com-
manding officer or separation board] committed any error
or injustice in determining that [Mr. Wade] wrongfully

1 “MCM” refers to the Manual for Courts-Martial,
which interprets the UCMJ.
6 WADE v. UNITED STATES

used cocaine.” J.A. 1006. Regarding Mr. Wade’s “addi-
tional arguments why the positive urinalysis should be
discounted, e.g., good military character, [expert wit-
ness’s] opinions, innocent ingestion, etc.,” the Board
determined that the “[commanding officer]’s and [the
separation board’s] findings were not in error considering
the ‘preponderance of evidence burden of proof imposed on
them when making a determination of misconduct.” Id.
The Board further determined that “it was not unreason-
able for the [commanding officer] and [the separation
board] to discount [Mr. Wade’s] evidence and conclude
misconduct occurred based simply on the positive urinaly-
sis.” Id.
IV. Court of Federal Claims’ Decision
Mr. Wade filed a complaint with the Court of Federal
Claims requesting, among other things, reinstatement,
correction of his records, and backpay. The court first
remanded the case to the Board for consideration of
materials that the Board might not have reviewed. After
the Board again affirmed the separation board’s determi-
nation, the trial court granted Mr. Wade’s motion for
judgment on the administrative record, and entered
judgment for Mr. Wade.
Specifically, the trial court held that the urinalysis
test results could not establish knowing, wrongful use: “A
low positive reading on a first-time offense, with no evi-
dence of how the substance was ingested, does not estab-
lish a ‘wrongful use,’ and should not warrant the severe
punishment of discharge from the military.” Wade, 126
Fed. Cl. at 644. In arriving at its conclusion, the trial
court considered evidence supporting Mr. Wade’s good
character and commendable service record, alleged proce-
dural concerns including the Navy’s denial of Mr. Wade’s
request for an independent DNA test on his urinalysis
sample, the use of a summary transcript from the separa-
tion board proceedings in the record, and the length of the
WADE v. UNITED STATES 7

separation panel’s deliberations leading up to their rec-
ommendation. Ultimately, the trial court concluded that
“the Navy’s case against Mr. Wade fails because the Navy
did not prove that he knowingly ingested cocaine,” and
that “[w]ithout a knowing consumption of a controlled
substance, the ingestion could not have been wrongful.”
Wade, 126 Fed. Cl. at 644.
The United States appeals. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(3).
DISCUSSION
UCMJ Article 15 authorizes commanding officers to
conduct non-judicial proceedings as “an administrative
method of dealing with the most minor offenses.” Mid-
dendorf v. Henry, 425 U.S. 25, 31–32 (1976). While these
proceedings offer less severe punishments, they provide
fewer legal protections for the accused than more formal
court-martial proceedings. Dumas v. United States, 620
F.2d 247, 252–53 (Ct. Cl. 1980). For example, guilt may
be found by a preponderance of the evidence in a non-
judicial proceeding, rather than “beyond a reasonable
doubt” as in a courts-martial proceeding. See United
States v. Reveles, 660 F.3d 1138, 1141 (9th Cir. 2011),
citing U.S. Dep’t of Navy, Manual of the Judge Advocate
General (JAGMAN), JAG INSTRUCTION 5800.7F, I-18-
19 (June 26, 2012), http://www.jag.navy.mil/library/
instructions/JAGMAN2012.pdf. Guilt in a separation
proceeding is also proven by a preponderance of the
evidence. See MILPERSMAN 1910-518 (Sep. 20, 2011),
http://www.public.navy.mil/bupers-npc/reference/
milpersman/1000/1900Separation/Documents/1910-
518.pdf.
On review of an Application for Correction of Naval
Records, the Board for Correction of Naval Records
(“Board”) will not disturb the separations board’s findings
and conclusions unless the applicant demonstrates the
existence of probable material error or injustice. 32
8 WADE v. UNITED STATES

C.F.R. § 723.3(e)(2). The Court of Federal Claims must
affirm the Board’s decision denying correction of Naval
records “unless it is arbitrary, capricious, contrary to law,
or unsupported by substantial evidence.” Barnes v.
United States, 473 F.3d 1356, 1361 (Fed. Cir. 2007) (in-
ternal quotations omitted); see also Metz v. United States,
466 F.3d 991, 998 (Fed. Cir. 2006). We review a decision
of the Court of Federal Claims granting or denying a
motion for judgment on the administrative record de novo,
applying the same standard to the Board’s decision as was
applied by the Court of Federal Claims. See Barnes v.
United States, 473 F.3d 1356, 1361 (Fed. Cir. 2007).
The arbitrary and capricious standard of review does
not allow a reviewing court to reweigh the evidence, but
rather requires it to determine whether the conclusion
being reviewed is supported by substantial evidence.
Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir.
1983). Thus, even if we would be inclined to find the facts
differently in the first instance, we must accept the
Board’s view of the facts as long as the record contains
“such relevant evidence as a reasonable mind might
accept as adequate to support” the Board’s conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
quotation omitted); see also Heisig, 719 F.2d at 1156
(“[C]ourts cannot substitute their judgment for that of the
military departments when reasonable minds could reach
differing conclusions on the same evidence.”). Applying
this standard of review to the record and the Board’s
determination in this case, we find the Board’s conclusion
to be supported by substantial evidence and not arbitrary,
capricious, or contrary to law.
I.
The MCM explains that Mr. Wade’s charge contains
two elements: (a) the use of a controlled substance and (b)
that the use was wrongful. MCM, Pt. IV, ¶ 37b(2)(a)–(b).
Regarding element (a), the MCM explains that the use
WADE v. UNITED STATES 9

must be knowing and that “[k]nowledge of the presence of
the controlled substance may be inferred from the pres-
ence of the controlled substance in the accused’s body or
from other circumstantial evidence. This permissive
inference may be legally sufficient to satisfy the govern-
ment’s burden of proof as to knowledge.” MCM, Pt. IV,
¶ 37c(10). Regarding element (b), the MCM provides that
the use is wrongful “if it is without legal justification or
authorization,” and that such wrongfulness may be in-
ferred “in the absence of evidence to the contrary.” MCM,
Pt. IV, ¶ 37c(5); see also Bozin v. Sec’y of Navy, 657 F.
Supp. 1463, 1467 (D.D.C. 1987) (“The Manual . . . allows a
‘permissive inference’ of wrongfulness as flowing from
proof of drug use.”).
Military courts have repeatedly held that a positive
urinalysis accompanied by expert testimony interpreting
the urinalysis is sufficient to establish a permissive
inference of wrongful use. See, e.g., United States v.
Green, 55 M.J. 76, 81 (C.A.A.F. 2001) (noting that, under
the Military Rules of Evidence, a urinalysis and expert
testimony “provide[] a legally sufficient basis upon which
to draw the permissive inference of knowing, wrongful
use, without testimony on the merits concerning physio-
logical effects”); United States v. Harper, 22 M.J. 157, 159
(C.M.A. 1986) (“We hold that these laboratory results of
urinalysis coupled with expert testimony explaining them
constituted sufficient evidence to support the military
judge’s finding beyond a reasonable doubt that appellant
used [marijuana] on three occasions.”).
Here, substantial evidence supports the Board’s de-
termination that Mr. Wade did not demonstrate probable
material error or injustice in the separation board’s
finding of knowing, wrongful use of cocaine. For example,
the Navy provided witnesses who testified that they
personally observed Mr. Wade on the day of his urine
collection, that the collection and testing was conducted in
accordance with strict Navy protocols to prevent sample
10 WADE v. UNITED STATES

tampering, and that the collection cup, personally ini-
tialed by Mr. Wade before the collection of the sample,
never left the sight of the officers until the sample was
collected, sealed, and prepared for mailing. A technician
from the laboratory that analyzed the urine sample
testified as to the extensive safeguards used to rule out
errors resulting from damage, tampering, and other
potential problems. The government also provided testi-
mony from a technical expert, who discussed the Navy’s
testing procedures, as well as the implications and relia-
bility of the test result. Mr. Wade did not dispute any of
this testimony or provide any reason to question the
accuracy of the test result.
The evidence presented by the Navy on the urinalysis
was sufficient to support a permissive inference of know-
ing, wrongful use, even in the face of contrary evidence
offered by Mr. Wade. “Standing alone, a positive urinaly-
sis may be legally sufficient to sustain a conviction for
wrongful use of a controlled substance, even in the face of
contrary evidence offered by the defense.” United States
v. Hobbs, 62 M.J. 556, 558–59 (A.F. Ct. Crim. App. 2005)
(citing United States v. Ford, 23 M.J. 331, 332 (C.M.A.
1987)); United States v. Green, 55 M.J. 76, 81 (C.A.A.F.
2001) (“A urinalysis properly admitted under the stand-
ards applicable to scientific evidence, when accompanied
by expert testimony providing the interpretation . . .
provides a legally sufficient basis upon which to draw the
permissive inference of knowing, wrongful use.”) Alt-
hough Mr. Wade presented a theory of innocent ingestion,
“it is the responsibility of the factfinder to determine what
weight should be given to such evidence.” Green, 55 M.J.
at 81. Here, the factfinder was free to discredit Mr.
Wade’s innocent ingestion theory, given the positive test
result and the two instances of Mr. Wade’s untruthfulness
that were revealed during the course of the proceeding.
However benign the circumstances were of Mr. Wade’s
untruthfulness, the factfinders were entitled to make
WADE v. UNITED STATES 11

credibility findings. And while Mr. Wade’s strong evi-
dence of good character and prior commendable service
may suggest that Mr. Wade was not likely to knowingly
ingest cocaine, this evidence does not undermine the
substantial evidence supporting the Board’s determina-
tion that Mr. Wade did not demonstrate probable materi-
al error or injustice in the separation board’s finding of
knowing, wrongful use of cocaine. For these reasons, we
cannot agree with the trial court that the Board’s deter-
mination was arbitrary, capricious, contrary to law, or
unsupported by substantial evidence.
Our conclusion is not altered by the trial court’s ra-
tionale in holding otherwise. For example, the trial court
determined that based on expert testimony, Mr. Wade’s
“relatively low positive reading . . . likely does not reflect
the actions of someone trying to experience a drug’s
euphoric effects, but rather is more in keeping with a
person’s unknowing ingestion of a small amount of co-
caine.” Wade, 126 Fed. Cl. at 644. But the expert also
testified that Mr. Wade’s urinalysis result “doesn’t rule
out smoking crack cocaine three or four days before the
urinalysis collection.” J.A. 1044. In other words, the
urinalysis results allowed for two possible factual conclu-
sions. Even if we would find differently were we to decide
facts in the first instance, our role as a reviewing court
does not allow us to reweigh the evidence. We are like-
wise not convinced that the trial court’s “procedural
concerns” about the Navy’s denial of Mr. Wade’s request
for an independent DNA test on his urinalysis sample, the
use of a summary transcript from the separation board
proceedings in the record, and the length of the separa-
tion panel’s deliberations amount to legal error requiring
reversal.
CONCLUSION
Because we find that the Board’s decision was not ar-
bitrary, capricious, contrary to law, or unsupported by
12 WADE v. UNITED STATES

substantial evidence, we reverse the trial court’s grant of
Mr. Wade’s cross-motion for judgment on the administra-
tive record, and grant the United States’ motion for
judgment on the administrative record.
REVERSED
COSTS
No Costs.