United States v. Phillips

53 M.J. 758, 2000 CCA LEXIS 193, 2000 WL 1232407
CourtUnited States Air Force Court of Criminal Appeals
DecidedAugust 16, 2000
DocketACM 33730
StatusPublished
Cited by2 cases

This text of 53 M.J. 758 (United States v. Phillips) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Phillips, 53 M.J. 758, 2000 CCA LEXIS 193, 2000 WL 1232407 (afcca 2000).

Opinions

OPINION OF THE COURT

BURD, Judge:

On 8-17 December 1998, the appellant was tried by general court-martial composed of members at Davis-Monthan Air Force Base (AFB), Arizona. Contrary to his pleas, he was found guilty of one specification of wrongfully using cocaine, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. He was found not guilty of three other allegations: signing a false official document, wrongfully using cocaine on divers occasions, and stealing military property of a value in excess of $100.00. The appellant was sentenced to a dismissal, confinement for 1 year, and forfeiture of all pay and allowances. The approved sentence was a dismissal, confinement for 8 months, and forfeiture of all pay and allowances.

The appellant asserts three errors. We find no prejudicial error and affirm the findings and sentence. We will address each issue individually after a brief summary of the facts.

I. Facts

On Monday, 10 November 1997, the appellant, a C-130 pilot, was randomly selected to provide a urine sample for drug testing. The appellant was given notice of his selection at approximately 1030, and was ordered to provide the specimen no later than 1230 at a collection site at the Medical Annex on base. Instead of providing a sample as ordered, the appellant went to his off-base quarters. The appellant did not provide a urine sample until 1637 and only after he was located by personnel from his squadron and given a second order by his commander.

The appellant provided his sample at the hospital laboratory rather than the established collection site at the Medical Annex on base because he failed to appear during the time the collection site was operating. All steps in the process of collecting the appellant’s urine sample were accomplished properly at the hospital lab with one exception: Senior Airman (SrA) Wells, the lab technician who received the sample from the appellant, did not complete a DD Form 2624, Specimen Custody Document — Drug Testing, for the appellant’s sample. This documentation error was later compounded when the sample was boxed for shipment.

The sample was stored at the lab until Staff Sergeant (SSgt) Green, the base assistant drug testing program administrative manager, removed the sample from storage and boxed it with nine other samples collect[760]*760ed during the scheduled collection hours on 10 November. SSgt Green added the required information regarding the appellant’s sample on the front page of a DD Form 2624 that correctly listed the previously obtained nine samples, boxed the form with the ten samples, and mailed the box to the Air Force Drug Testing Laboratory (AFDTL) at Brooks AFB, Texas.

The addition of the appellant’s sample to this form erroneously made it appear that his sample was collected along with the other nine listed samples and processed in the same chain of custody recorded on the back of the form. As a result, personnel at the AFDTL tested the appellant’s sample because they were unaware of the chain of custody documentation discrepancy. Had they known that the person who originally received the sample from the appellant (SrA Wells) was not listed in the chain of custody record on the back of the DD Form 2624, they would not have tested it. See Air Force Instruction (AFI) 44-120, Drug Abuse Testing Program, Sections D and E (1 Apr. 1997).

The appellant’s urine sample tested positive for cocaine. The cocaine metabolite benzoylecgonine (BE) concentration detected was 211 nanograms per milliliter (ng/ml). The Department of Defense cutoff level for this metabolite is 100 ng/ml.

At the request of the defense before trial, the appellant’s urine sample was re-tested. The re-test was accomplished at the Associated Pathologists Laboratory (APL). The APL re-test result showed BE in the appellant’s urine at a level of 220 ng/ml. The testing done at APL also showed the presence of the metabolite ecogninemethylester (EME), which confirmed that the cocaine metabolite in the appellant’s urine sample came from cocaine ingested by the appellant into his body.

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Related

Hernandez v. State
116 S.W.3d 26 (Court of Criminal Appeals of Texas, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
53 M.J. 758, 2000 CCA LEXIS 193, 2000 WL 1232407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-phillips-afcca-2000.