United States v. Brown

35 M.J. 877, 1992 CMR LEXIS 725, 1992 WL 302704
CourtU S Air Force Court of Military Review
DecidedOctober 16, 1992
DocketACM 29105
StatusPublished
Cited by1 cases

This text of 35 M.J. 877 (United States v. Brown) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brown, 35 M.J. 877, 1992 CMR LEXIS 725, 1992 WL 302704 (usafctmilrev 1992).

Opinion

OPINION OF THE COURT

SNYDER, Judge:

Our original opinion in this case was unpublished (ACM 29105, 6 October 1992). That opinion is hereby withdrawn.

Contrary to his pleas, appellant stands convicted by general court-martial of the wrongful use of marijuana, in violation of Article 112a. He was found not guilty of a specification alleging wrongful use of cocaine. His sentence extends to a bad-conduct discharge, confinement for 5 months, forfeitures, and reduction to E-l. The convening authority approved the sentence as adjudged. The appellant asserts one assignment of error, which we resolve adversely to him and affirm.

The charge and specifications thereunder arose as a result of a random urinalysis inspection, from which appellant's urine sample was reported as positive for marijuana and cocaine metabolites, thereby indicating his use of those two illicit substances. At trial, defense counsel made a timely Motion to Suppress the results of the urinalysis on the basis the inspection did not comply with Military Rules of Evidence 313(b). Specifically, it was not “incident to command,” because it was, in fact, directed by staff personnel rather than the appropriate commander. In further support of the motion, the defense also averred a failure of the base to follow the regulation promulgated to control the base’s urinalysis program.

The military judge conducted a thorough evidentiary hearing and made exhaustive essential findings of fact, which are amply supported by the evidence of record. Accordingly, except where indicated, we accept and apply the trial judge’s findings, as supplemented by our own, as the facts of the case.

As mentioned, Myrtle Beach AFB’s (MBAFB) urinalysis program ostensibly was governed by MBAFB Regulation 160-2, dated 28 July 1987. The salient provision of that regulation (and the basic linchpin for the motion) vested responsibility in the commanders and section commanders, of all assigned and attached units, for the initiation, management, and operation of urinalysis inspection tests. App. I. The base regulation also provided for the coordination with certain named “trusted agents,” i.e., the staff judge advocate, pri- or to executing a random urinalysis inspection. However, for reasons not disclosed or developed at trial, the then Commander, 354th Tactical Fighter Wing (who also was the senior installation commander), by letter dated 27 December 1988, directed week[879]*879ly “base-wide screening of all military personnel.” App. II. He also directed the base social actions office to execute his directive via computer generated randomly selected lists of personnel identified to submit samples. See Air Force Regulation 30-2, Social Actions Program, dated 18 April 1986, paragraph 5-13a.

The 27 December 1988 letter was never promulgated as a change to the existing base regulation nor was the base regulation rescinded. The incumbent commander on the date appellant submitted his sample, 12 June 1990, was the vice wing commander when the 27 December 1988 letter was issued, and he was well aware of and supported the program as established by his predecessor in command. Upon his assumption of command in February 1990, he took no action to change any facet of the then existing program. In fact, via a letter dated 19 March 1990, he indorsed the base’s drug abuse program and emphasized vigilant execution thereof. App. III.

I

Trial defense counsel asserted the failures to rescind the base regulation and promulgate the 27 December 1988 letter as its replacement regulation constituted violations of Air Force Regulation (AFR) 5-8, Preparing Air Force Publications, dated 24 April 1984, paragraphs 4-9 and 1-21, respectively. The trial judge found AFR 5-8 was promulgated to effect orderly dissemination of policy, did not confer rights upon the accused or others similarly situated, and the failure to follow the regulation did not abrogate any statutory or constitutional protections of the accused. He also applied the same findings to the 28 December 1988 letter. The trial judge’s ruling was entirely correct.

The preamble of AFR 5-8 states its purpose as providing policies. It is completely devoid of language directive in nature. United States v. Benway, 19 U.S.C.M.A. 345, 41 C.M.R. 345 (1970); United States v. Baker, 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969). Further, the specific paragraphs relied upon by defense reflect goals or preferred methods of handling policy guidance. Neither paragraph provides a failure to comply will void the policy letter or message in question. In fact, paragraph 1-21 states a policy letter or message remains in effect until rescinded, superseded, or replaced by a publication. To encourage project officers to meet the regulation’s goal of promulgating policy letters or messages into regulations within 90 days, paragraph 1-21 suggests policy letters reflect an expiration date. In the instant case, neither the 27 December 1988 nor March 1990 letter reflects an expiration date.

II

Subsequent to the 28 December 1988 letter, the primary involvement of unit commanders was notifying members of their respective units of their selection to participate in random urinalyses. By the time appellant was identified as a participant, the random inspections were being performed a maximum of twice per month, rather than the weekly basis specified by the 27 December 1988 directive. The chief of the local social actions office and his noncommissioned officer in charge (NCOIC) were the focal point of the program, deciding which week or weeks the lists for inspection would be computer generated, and then notifying the affected unit commanders of their unit personnel identified by the computer listing. The social actions personnel treated the lists on an extremely close-hold basis, not even informing the wing commander of those identified, or coordinating the lists with the “trusted agents,” as prescribed in the base regulation.

Appellant was assigned to the communications squadron, which, at the time, was an asset of Air Force Communications Command (AFCC). As such, his unit was a tenant on Myrtle Beach AFB with responsibility for providing communications support to the base. Except for appellant’s unit commander, Major D, the unit’s chain of command ran through him to AFCC headquarters.

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Related

United States v. Evans
37 M.J. 867 (U S Air Force Court of Military Review, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
35 M.J. 877, 1992 CMR LEXIS 725, 1992 WL 302704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brown-usafctmilrev-1992.