United States v. Wakin

27 M.J. 532, 1988 WL 105184
CourtU S Air Force Court of Military Review
DecidedSeptember 26, 1988
DocketACM 26112
StatusPublished
Cited by3 cases

This text of 27 M.J. 532 (United States v. Wakin) 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. Wakin, 27 M.J. 532, 1988 WL 105184 (usafctmilrev 1988).

Opinion

DECISION

MURDOCK, Judge:

This case involves the relationship between criminal prosecutions and the Air Force program for self identification of drug abusers. After losing a lengthy suppression battle, the appellant, a flight [533]*533nurse stationed at Clark Air Base, entered conditional guilty pleas to charges of dereliction of duty and making false official statements. In our view, both charges related to his active abuse of drugs. He was found guilty by a military judge sitting alone and sentenced to dismissal, confinement for 12 months, and forfeiture of $300 per month for 12 months. Because we find the military judge erred by refusing to dismiss the charges, we will discuss only one of the four errors asserted by the appellant. In that error, the appellant asserts the charges should have been dismissed where the evidence was directly related to the appellant’s personal drug abuse which he had revealed under the Air Force self identification program. We agree.

The evidence indicated that the appellant had suffered from a serious drug dependency for some time before his problem came to official attention. Unfortunately, he was a flight nurse and the Officer in Charge of the aeromedical squadron’s drug supply room. This was undoubtedly a very difficult assignment for anyone trying to resist the forces of drug addiction.

The case reached a crescendo on the weekend of 25-27 October 1985. The accused was the lone medical officer on a routine C-9 aeromedical flight in the Pacific. Sometime during the flight one of the medical technicians found a needle and a syringe in the aircraft latrine sink. The technician disposed of the needle assembly in the authorized container and returned to his other duties. About an hour later the same technician found a tourniquet in the same latrine. Both the needle assembly and the tourniquet had blood spots on them which, the technician testified, indicated they had been used for an intravenous injection. After this second discovery the technician reported his findings to the appellant and asked for guidance. The appellant told him that he, the appellant, would write it up. Later in the flight the technician discussed the discoveries with another technician on board. They decided the discoveries should be entered on the form used to record unusual circumstances of a flight. As medical crew director, the appellant had to sign the form, which he did. The form was routed through normal squadron channels to the Superintendent of Nursing Service, a Chief Master Sergeant.

The form was not completely reviewed by squadron officials until after the appellant revealed his drug abuse to a social actions counsellor as part of his drug abuse self identification. However, on the day after the flight, the technician who found the drug equipment showed the form to the Superintendent of Nursing Service and discussed the incident with him. The superintendent testified that when he heard about the equipment being found on board he recalled a mission he had flown with the appellant. During that flight the appellant had fallen asleep and “nearly had put a cigarette into a pillow, and also there had been a syringe found in a latrine”. He stated that at the time he “didn’t place it with anything”. However, when he heard about the incident involved in this case he testified “I thought, well, maybe there is something going on____” The superintendent was leaving on a flight and had no time to follow up on the matter. He decided to report the situation to the chief nurse when he returned from the flight on Monday afternoon.

About 2130 on the evening the appellant returned from his flight, his wife called Captain Folden, a deacon in their church. The deacon was a flight nurse and a member of the appellant’s squadron. He testified that, as a deacon in the Reorganized Church of Jesus Christ of Latter Day Saints, he held an ordained “priesthood” in his church. He explained that his responsibilities include family counselling and family ministry.

Captain Folden testified that he was not surprised by Mrs. Wakin’s call because she had told him about two weeks earlier that she might want to talk to him in the future, although she did not say why. Additionally, based on his own observations, he had begun to wonder about the appellant’s deteriorating performance. He had asked at least one other squadron member and tried, in a general way, to see whether anyone thought the appellant might be associated [534]*534with the increased incidence of broken tabs the squadron was experiencing on narcotics containers.

At Mrs. Wakin’s invitation, Captain Fol-den went to the Wakin quarters the night of the call. When he arrived Mrs. Wakin came right to the point by saying “James has a real problem, he’s been taking drugs”. He discussed the situation with Mrs. Wakin for about two hours, but did not see the appellant.

During their conversation, Captain Fol-den suggested, “maybe we should talk to an attorney”. They called Captain Feder, an area defense counsel assigned to the base. He agreed to talk with the appellant “first thing Monday morning”. During the conversation with Captain Folden that night, Captain Feder mentioned the Air Force drug abuse self identification program governed by Air Force Regulation (AFR) 80-2, Social Actions Program. He advised it would not be “the best thing” for the appellant to talk to his commander or chief nurse at that stage.

Sometime after the conversation with Captain Folden, Captain Feder called Master Sergeant Melendez, a social actions drug and alcohol counselor at the base. He told Sergeant Melendez that he had a client who was in “very bad shape and he felt that he needed some attention sooner than Monday”. Sergeant Melendez agreed to see Captain Feder and the appellant and his wife at 1400 Sunday afternoon.

When they met at the social actions office, Sergeant Melendez read the provisions of the self identification program to the appellant directly from the regulation. He specifically mentioned that social actions counsellors could not offer any confidentiality and that portions of the file would be revealed to other base officials such as the members of the rehabilitation committee, or members of the appellant’s chain of command.

Sergeant Melendez testified that before accepting someone into the self identification program, he always contacted that person’s commander to determine whether an investigation had begun. In the present case, the appellant’s “acting commander” told him that the appellant was not “under any form of investigation”. Sergeant Melendez specifically asked whether there was a urinalysis pending or whether the Air Force Office of Special Investigations (AFOSI) or the security police were investigating the appellant. He was assured that no such actions were pending. Based on these assurances, Sergeant Melendez told the appellant he probably qualified for entry under the self identification program. He then questioned the appellant about the extent and nature of his drug problem. As a result of this interview, the appellant was referred to the base medical center for detoxification.

At the same time the appellant was being treated, his squadron was attempting to determine what effect his newly revealed drug involvement might have had on the squadron mission. Because the appellant was the officer in charge of the squadron “drug room", the commander decided to conduct an inventory of the drug room. Before the inventory began, the squadron chief nurse and his assistant went to the drug room to change the combination of the drug vault.

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Related

United States v. Jackson
45 M.J. 656 (Air Force Court of Criminal Appeals, 1997)
United States v. Wood
29 M.J. 852 (U S Air Force Court of Military Review, 1989)
United States v. Martinez
28 M.J. 56 (United States Court of Military Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
27 M.J. 532, 1988 WL 105184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wakin-usafctmilrev-1988.