Petition for Writ of Certiorari — Bair v. United States

Bepreme Court, U.S.

FILED

SEP 17 1991

IN THE OFFICE OF THE CLERK

Supreme Court of the United =

OCTOPER TERM, 1991 ‘

BRUCE L. BAIR,

Petitioner

Ve

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

MICHAEL D. BURT

Captain, Air Force Legal

Services Agency

United States Air Force

AFLSA/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

URSULA P. MouUL

Captain, Air Force Legal

Services Agency

United States Air Force

AFLSA/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

JEFFREY R. OWENS

Lieutenant Colonel, Air Force

Lega! Services Agency

United States Air Force

SEPTEMBER 1991 Counsel for Petitioner

QUESTION PRESENTED

Whether, based solely upon an anonymous, unsubstan-

tiated tip, which gave only petitioner’s name and a bald

accusation that he used marijuana, the commander had

reasonable suspicion to lawfully order the petitioner to

submit a urine sample.

(i)

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS INVOLVED .........

STATEMENT OF THE CASE ...WW000000..eeeeee eee

REASONS FOR GRANTING THE WRIT ..........0.........

ESE a 10

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On No —

TABLE OF AUTHORITIES

CASES:

United States Supreme Cou Decisions:

Adams v. Williams, 407 ..S. 143 (1972) -..............

Aguilar v. Texas, 378 U.S. 108 (1964) -..................

Alabama v. White, 496 U.S. ——, 110 S. Ct. 2412

SESE SESE IR 6, 7,9

Illinois v. Gates, 462 U.S. 213 (1983) 0. 7

Morton v. Ruiz, 415 U.S. 199 (1974) 000. 5

Skinner v. Railway Labor Executives’ Ass’n, 489

EE LS 5

Spinelli v. United States, 393 U.S. 410 (1969) ...... 7

Terry v. Ohio, 392 U.S. 1 (1968) ............................ 6

United States Court of Military Appeals Decisions:

United States v. Bair, 32 M.J. 404 (C.M.A. 1991)... 4, 5,9

United States v. Wallace, 2 M.J. 1 (C.M.A. 1976).. 4

a4

Courts of Military Review Decisions: .

United States v. Bair, 29 M.J. 862 (A.F.C.M.R.

Ce a atemninmemessalinsson 5

CONSTITUTIONAL PROVISIONS:

NT ans catsnssascininmmnnionabonin 2

iv

TABLE OF AUTHORITIES—Continued

STATUTORY AUTHORITIES: Page

Article 67a, Uniform Code of Military Justice

(1984) _..... BNP Bota PB Bee ss ROA RT A TD 1

10 U.S.C. § 867a (Supp. 1991)... 1

28 U.S.C. § 1259(3) (Supp. 1991) 2000 1

MISCELLANEOUS:

Air Force Regulation 30-2, Social Actions Pro-

CE RE Ty TED nice itcerceccctcintntncectiees 4

IN THE

Supreme Curt of the United States

OCTOBER TERM, 1991

No.

BRUCE L. BAIR,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Bruce L. Bair, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his

case on June 21, 1991.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals is reported at 32 M.J. 404 (C.M.A. 1991) (Ap-

pendix A). The United States Air Force Court of Mili-

tary Review issued a decision on November 21, 1989, re-

ported at 29 M.J. 862 (1989, (Appendix B).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on June 21, 1991. The jurisdiction

of this Court is invoked under Article 67a of the Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 867a

(Supp. 1991}, and 28 U.S.C. § 1259(3) (Supp. 1991).

2

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment provides in pertinent part:

The right of the people to be secure in their persons

. .. against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon

probable cause....

STATEMENT OF THE CASE

On July 21, 1988, the first sergeant of the 355th Air-

craft Generation Squadron, Davis-Monthan Air Force

Base, Arizona, received information from the base se-

curity police that an anonymous female caller had alleged

that the petitioner and another named airman had used

marijuana. The call contained no specific details indicat-

ing where any drug abuse by the petitioner may have

occurred. The first sergeant relayed this information to

the squadron commander, Lieutenant Colonel (then Major)

Kind. Lieutenant Colonel Kind believed, but was not

sure, that the reported use had been the previous weekend.

The commander testified that he was “shocked by the

news” because the petitioner was one of his “best troops.”

Further, Lieutenant Colonel Kind said he found it “very,

very difficult to believe” that the petitioner had used

drugs, but since he commanded a flightline organization,

he believed safety concerns dictated an order for the pe-

titioner to submit a command-directed urinalysis sample.

Other than the information which he received from the

first sergeant, Lieutenant Colonel Kind had no other rea-

son to suspect that the petitioner may have been using

drugs, and if it had not been for the telephone call, he

would have no reason to order a command-directed uri-

nalysis. When asked if he had a reasonable suspicion, Lieu-

tenant Colonel Kind said he believed that he had a rea-

sonable doubt that the petitioner had used drugs. He also

said that he had thought the chances that the anonymous

tip that the petitioner had used drugs was true was a

“small possibility.”

3

The commander ordered the petitioner to submit a

command-directed urine sample pursuant to Air Force

Regulation 30-2, paragraph 5-8 (April 18, 1986). The

appellant admitted during the providence inquiry that he

violated the order by substituting in place of his own

urine a mixture of water and grapefruit juice. The ap-

pellant also admitted that he had earlier requested urine

from an airman under his supervision to substitute in

place of his own.

Air Force Regulation 30-2, paragraph 5-8, authorizes

commanders to direct a urinalysis test when there is a

reasonable suspicion of drug abuse. Although stating this

was a “close case” in upholding the denial of the defense’s

motion to suppress, the Court of Military Appeals held

that the commander had the necessary “reasonable sus-

picion” to give petitioner the order to provide a urine

sample, applying Fourth Amendment standards. The

Court of Military Appeals relied on the fact that the in-

formant named specific individuals, the drug used, and

a general time frame the drug was used, in addition to

the commander’s concern with the harm that could re-

sult to flight operations if appellant was using mari.

juana. The courts below also relied on the fact that the

commander was not presented with a blanket assertion

that everybody in his organization used drugs.

REASONS FOR GRANTING THE WRIT

The writ should be granted because the United States

Court of Military Appeals has improperly applied the

Fourth Amendment standard regarding reasonable sus-

picion to this case. Petitioner asserts this is far from

being a “close case.” The petitioner stands convicted of

a violation of a lawful order and solicitation of another

to assist him in violating that order. Both offenses arise

from the petitioner’s response to an unlawful order from

his commander to submit a urine sample. Petitioner con-

tends his conviction cannot stand because the order failed

4

to meet the reasonable suspicion requirement of the ap-

plicable regulation and violated his rights against unrea-

sonable search and seizure under the Fourth Amendment.

His conviction cannot stand because both offenses re-

quire as a factual predicate that the underlying order,

the order to submit the urine sample, be lawful. United

States v. Wallace, 2 M.J. 1 (C.M.A. 1976). The lawful-

ness of the order given to petitioner to submit the urine

sample depends upon whether it was predicated upon

reasonable suspicion as required by the regulation. United

States v. Bair, 32 M.J. 404, 407, n.1 (C.M.A. 1991).

This regulation is the only authority which allows the

commander to give such orders to submit urine samples,

and then only in appropriate circumstances.

Air Force Regulation 30-2, Social Actions Program,

paragraph 5-8 (April 18, 1986), sets forth the require-

ments for a command-directed examination:

The commander can refer a military member for

urine testing when there is a reasonable suspicion

of drug abuse... . A command-directed examination

may be conducted to determine a member’s compe-

tency for duty and the need for counseling, rehabilita-

tion, or other medical treatment:

a. Commanders usually direct urine testing in all

unusual circumstances of aberrant, bizarre, or un-

lawful behavior in which probable cause does not ex-

ist but there is reasonable suspicion of drug abuse.

Such behavior may include, for example, unauthorized

absences, violations of safety requirements, disobe-

dience of direct orders, apprehension or investigation

for drug offenses or intoxicated driving, involvement

in crimes of violence, or other incidents involving re-

peated or serious breaches of discipline. ... In addi-

tion, apathy or defective attitude, or personality

change may, when examined in the context of other

circumstances, lead to a reasonable suspicion of drug

abuse and form the basis for command-directed urine

testing.

5

b. Results obtained from command-directed test-

ing may be used to refer a member to the Drug Re-

habilitation Program and in administrative discharge

action. Results may not be used against the member

in any disciplinary action under the UCMJ, nor may

they be used on the issue of characterization of dis-

charge in separation proceedings. . . .

(Emphasis in original). Appendix C.

The government is bound by its own regulations, es-

pecially when the regulation is one which affects the rights

of individuals. Morton v. Ruiz, 415 U.S. 199, 235 (1974).

Petitioner’s commander certainly must be bound by the

above regulation.

The commander testified he thought the urinalysis test

would exculpate petitioner. Despite the commander’s

stated helpful motives, the Fourth Amendment’s purpose

is to protect specifically against such unwarranted intru-

sions. Because collection and testing of urine intrude

upon a most basic reasonable expectation of privacy in

our society, such intrusions must be deemed searches un-

der the Fourth Amendment. Skinner v. Railway Labor

Executives’ Ass’n, 489 U.S. 602, 616 (1989). As such,

the reasonable suspicion standard must be properly ap-

plied to petitioner’s case.

Both the Air Force Court of Military Review and the

Court of Military Appeals agreed to interpret “reason-

able suspicion” under the Air Force regulation in accord-

ance with the Fourth Amendment. See United States v.

Bair, 29 M.J. 862, 864 (A.F.C.M.R. 1989) and United

States v. Bair, 32 M.J. 404, 410 (C.M.A. 1991). Both

courts failed, however, to properly apply the Fourth

Amendment to petitioner’s case.

In its decision, the Court of Military Appeals decided

that reasonable suspicion may be created by an anony-

mous informant’s tip which is corroborated solely by in-

nocent details readily available to many people and in

6

no way indicative of the informant having access to per-

sonal facts about the petitioner’s criminal capacity. This

decision is contrary to the great weight of Fourth Amend-

ment analysis concerning the reasonable suspicion stan-

dard and anonymous informants. The reasonable suspicion

standard for limited searches without probable cause was

adopted by this Honorable Court in Terry v. Ohio, 392

U.S. 1 (1968). In Terry, this Court found that a police

officer may make an investigatory stop of a person if he

concludes, in light of his experience, that criminal activity

may be afoot. The officer making the stop must be able

to articulate something more than an “inchoate and un-

particularized suspicion or ‘hunch.’” Jd. at 27. The

officer must be able to articulate facts which, taken to-

gether with rational inferences from those facts, reason-

ably warrant an intrusion. The pertinent facts in Terry

were that the defendant and another suspect walked

slowly past and looked in the same store front a total of

24 times, and they appeared to be conferring after each

pass. Based on his experience the officer suspected that

the defendant was “casing” the store for a robbery. He

approached the defendant to question him and performed

a pat down search for weapons.

This standard was recently further expanded to en-

compass anonymous informants in Alabama v. White,

110 S. Ct. 2412 (1990). The facts in White much more

strongly support a finding of reasonable suspicion than

those in petitioner’s case, yet this Court even acknowl-

edged it was “close” as to whether there were sufficient

indicia of reliability to justify an investigatory stop.

Id. at 2417. There, an anonymous informant tele-

phoned the police and stated that Ms. White would

be leaving 235-C Lynwood Terrace Apartments at a

particular time in a brown Plymouth station wagon

with the right taillight lens broken, that she would be

going to Dobey’s Motel, and that she possessed about an

ounce of cocaine inside a brown attaché case. The police

officers went to the Lynwood Terrace Apartments and

7

saw a brown Plymouth station wagon with a broken right

taillight in front of the 235 building. They observed Ms.

White leave the building (although with nothing in her

hands), get in the brown station wagon, and drive to

Dobey’s Motel. Once stopped, Ms. White consented to a

search of her car. The police officers found a locked brown

attaché case containing marijuana. The officers found

three miligrams of cocaine in Ms. White’s purse when

processing her for arrest at the police station. In peti-

tioner’s case, we have no such details.

This Court abandoned the two-pronged Aguilar-Spinelli *

test in favor of a “totality of the circumstances” stand-

ard for determining whether an informant’s tip estab-

lishes probable cause in Illinois v. Gates, 462 U.S. 213

(1983). However, an informant’s veracity, reliability and

basis of knowledge, factors under the Aguilar-Spinelli

test, remain highly relevant in determining whether an

informant’s tip establishes probable cause or reasonable

suspicion, although a lesser showing is required for the

latter. Alabama v. White, 110 S. Ct. 2412, 2415 (1990).

Even with all the detailed facts given by the informant

in White, this Court held that that tip, standing alone,

would either warrant no police response or require fur-

ther investigation before a forcible stop of a suspect would

be authorized. Jd. at 2416, citing, Adams v. Williams,

407 U.S. 148, 147 (1972). Here, the tip received by the

commander was standing alone. It contained absolutely no

facts whatsoever of coordination or indicia of reliability.

Reasonable suspicion is dependent upon both the con-

tent of the information and its degree of reliability—its

quantity and quality. Alabama v. White, 496 U.S. .

110 S. Ct. 2412, 2416. The standard that should have

been applied by the Court of Military Appeals was “if

a tip has a relatively low degree of reliability, more in-

1 Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States,

393 U.S. 410 (1969).

8

formation will be required to establish the requisite quan-

tum of suspicion than would be required if the tip were

more reliable.” Jd.

In the instant case, the commander had absoiutely no

details, not even seemingly innocent ones, to corroborate

the information provided. The anonymous tipster merely

provided the appellant’s name and an accusation of drug

use, The commander was under the impression that the

drug use had occurred the previous weekend; however,

he could not remember specifically how he received that

information. This tip did not contain any innocent or

incriminating details, the corroboration of which could

have established the indicia of reliability. All he had

was a bald allegation of wrongdoing with no articulable

objective facts to reasonably warrant suspicion of wrong-

doing. Therefore, under the constitutionally mandated

standards for testing it, the commander had no reason-

able suspicion.

Even the commander’s subjective perception of the

facts displayed that he did not have reasonable suspicion.

When asked if he had a reasonable suspicion, he indicated

that it would be better characterized as a “reasonable

~doubt.” The fact that he harbored significant doubt

about the veracity of the allegations against the peti-

tioner further weakens any determination of reasonable

suspicion because the commander did not even have the

gut-level experience of a police officer that a crime had

occurred. The commander’s testimony shows that he pri-

marily acted out of concern for safety on the flightline.

Although this concern may have been prudent, it did not

meet the requirements of the Fourth Amendment.

The commander had several other, less intrusive, op-

tions than immediately ordering a command-directed

urinalysis. To safeguard lives, he could have immediately

removed the petitioner from any duties affecting flightline

or aircraft safety. In doing so, he reasonably could have

informed the petitioner of the anonymous tip and offered

9

him an opportunity to give a consensual urine sample.

Alternatively, the commander could have not informed

the petitioner of his reasons for changing his duties, and

had the Air Force Office of Special Investigations begin

an investigation into the petitioner’s alleged drug involve-

ment. Since the results of urinalysis tests generally

take at least several weeks and since there were other

options available, the Court of Appeals’ concern for the

“harm that could result to flight operations,” Bair, 32 M.J.

404, 410 (C.M.A. 1991!, is without merit.

This case is even more compelling than the dissenters’

fears in White, that anyone with any knowledge about a

given person to make him the target of a prank, or to

harbor a grudge against him, would certainly be able

to formulate a tip about him. Alabama v. White, 110

S. Ct. 2412, 2418 (1990). Indeed, the standard in the

military is now that a mere accusation is sufficient for

reasonable suspicion. In order to give a tip, an informant

must necessarily give someone’s name. Coming up with

a crime, even 2 specific crime like marijuana use, doesn’t

require any brilliant thought. Certainly the fact that the

caller didn’t implicate the entire unit shouldn’t be cited

as an indicia of reliability.

In sum, petitioner submits the decision of the United

States Court of Military Appeals upholding the com-

mander’s order to petitioner to submit a urine sample

as based on reasonable suspicion violated his Fourth

Amendment right against unreasonable searches and

seizures. The decision below should be reversed.

10

CONCLUSION

The petitioner’s case is worthy of Supreme Court re-

view. In particular, this case offers a unique opportunity

for this Court to define the power of the military com-

mander to conduct warrantless searches based solely on

anonymous, unsubstantiated tips.

Respectfully submitted,

MICHAEL D. BURT

Captain, Air Force Legal

Services Agency

United States Air Force

AFLSA/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

URSULA P. MOUL

Captain, Air Force Legal

Services Agency

United States Air Force

AFLSA/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

JEFFREY R. OWENS

Lieutenant Colonel, Air Force

Legal Services Agency

- United States Air "orce

SEPTEMBER 1991 Counsel for Petitioner

APPENDICES

la

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 64,124

ACM 27605

UNITED STATES,

. Appellee,

Bruce L. Barr, Technical Sergeant, U.S. Air Force,

Appellant.

Argued Dec. 17, 1990

Decided June 21, 1991

For Appellant: Vaughan E. Taylor (argued) ; Colonel

Richard F. O’Hair and Major Bernard E. Doyle, Jr. (on

brief) ; Lieutenant Colonel Jeffrey R. Owens.

For Appellee: Captain Morris D. Davis (argued) ; Colo-

nel Robert E. Giovagnoni (on brief); Major Brenda J.

Hollis.

Opinion of the Court

EVERETT, Senior Judge:

Pursuant to conditional pleas of guilty, see RCM 910

(a) (2), Manual for Courts-Martial, United States, 1984,

a military judge sitting as a general court-martial con-

victed Technical Sergeant Bair of willfully disobeying a

lawful order to submit a sample of his urine and of

soliciting another to violate the same lawful order by pro-

viding appellant a sample that he could use in lieu of his

own. See Arts. 90 and 134, Uniform Code of Military

Justice, 10 USC §§ 890 and 934, respectively. Thereafter,

the military judge sentenced appellant to a bad-conduct

discharge, confinement for 9 months, and reduction to the

2a

lowest enlisted grade. The convening authority approved

the sentence, and the Court of Military Review affirmed.

29 MJ 862 (1989).

On appellant’s petition, we agieed to decide whether

his commander—who acted on the basis of “an anony-

mous, unsubstantiated tip”—had the requisite “reasonable

suspicion” under paragraph 5-8, Air Force Regulation

(AFR) 30-2, to lawfully order that Bair submit a urine

sample for testing. We decide that he did.

I

The facts surrounding the offenses are fully set out in

the opinion of the Court of Military Review in this case.

29 MJ at 863. For purposes of this appeal, we need

focus only on the facts that led appellant’s commander,

Lieutenant Colonel Kind (then a major), to give the

order.

Prior to entering his pleas, appellant made “a motion

to dismiss or a motion for appropriate relief in that it is

our contention that the order given in Charge I and re-

lied on as the basis of Charge II was not a valid, lawful

order... .” Before presenting any testimonial evidence,

appellant offered as an appellate exhibit “a copy of AFR

30-2 that was in effect . . . at the time of the request

for the commander directed urinalysis in this case—

since it has changed since then.”

The only evidence offered by either side on the motion

was Kind’s testimony. That testimony was clear and

commendably candid; and it well sets up the legal issues

that now are before this Court.

Under direct examination by defense counsel, Kind de-

scribed what led to his order:

A. ... My first sergeant got a phone call from

who I believe was the LE dask, the law enforce-

ment desk. What it entailed was that they had re-

ceived an anonymous phone call implicating Sergeant

3a

Bair and another individual in the squadron saying

that they had used marijuana. The real specifics . . .

I’m not...

Q. You’re not familiar with the specifics? Okay,

then you were told this information by Chief Ivey,

the First Sergeant?

A. Yes, correct.

Q. What was your reaction to that information?

A. I was fairly shocked. I didn’t expect it.

Q. You didn’t expect it, did you believe the in-

formation?

A. Well, I was hoping it wasn’t true. I guess

the fact that I just alluded to, Sergeant Bair was

what I considered one of my best troops—I was

certainly hoping it wasn’t true. I found it very diffi-

cult to believe.

Q. When you got that information, what did you

decide to do with that information?

A. The First Sergeant and I discussed it and we

decided that since ours was a flightline organization,

that we had to insure that there was no illegal drug

use. Since my policy on the flightline had been that

there would be no illegal drug abuse accepted since

it’s incompatible with good aircraft maintenance, we

elected to do a commander directed urinalysis.

~ Q. I understand that. What was your reason for

ordering Sergeant Bair to do this urinalysis?

A. The reason was the anonymous phone call.

There was a shadow of a doubt.

Any ambiguity about what Kind was referring to when

he mentioned that the anonymous phone call had caused

“a shadow of a doubt” was clarified somewhat later in

defense counsel’s direct examination:

Q. That was my next question. In situations

where this issue had come up, someone you knew and

you thought was outstanding before, that the reason

for giving a urinalysis was a chance for them to

clear the issue once and for all.

4a

A. Well, that and to eliminate any question of

doubt. I would have to say that if I get an anony-

mous phone call on my First Sergeant, I’d do a com-

mander directed urinalysis on him too—under the

old rules.

Q. Excuse me, I didn’t understand that?

A. Well, if I got an anonymous phone call on

anybody, even as trusting as my First Sergeant, I

would think I would do the same thing.

Subsequently, defense counsel sought to explore Kind’s

reasoning process in light of the applicable legal stand-

ard of “reasonable suspicion”’:

Q. Since I talked to you on Friday afternoon,

have have you had an opportunity to talk with Cap-

tain Coakley [assistant trial counsel] or Captain

Probasco [trial counsel] ?

A. Captain Coakley.

Q. And did Captain Coakley explain to you what

you would be testifying about today?

A. Just that ...ah... well, I think so.

Q. Did he explain to you the issue of reasonable

suspicion?

A. Ahh... yes.

Q. What was his definition of reasonable sus-

picion?

A. He did not give one.

Q. Do you feel, using the words “reasonable sus-

picion” that you had a reascnable suspicion?

A. I think I did.

Q. That Sergeant Bair was using drugs at the

time?

A. I think there was reasonable doubt.

Q. Reasonable doubt?

A. Maybe that’s the word I would use. Reason-

able doubt.

5a

Subsequent examination of Colonel Kind by defense

counsel, and the military judge expanded somewhat

Kind’s testimony as to the anonymous tip, as to what

other information Kind had had available, and as to

what his response had been to the situation.

As to the tip: The anonymous tip had been from a fe-

male caller who had stated that Bair and Senior Airman

Parker, another member of the same squadron, had used

marijuana sometime recently—Kind believed but was not

sure that the reported use had been the previous weekend.

The tip contained no other details.

As to any other information available to Kind: He be-

lieved appellant was an “outstanding troop” and non-

commissioned officer and had no reason, other than the

tip, to believe Bair would use marijuana. Similarly,

Kind knew Parker and had no reason—again, other than

the tip—to believe that Parker used marijuana.

As to why he ordered the urinalysis: In light of Kind’s

paramount concern with flightline safety, any anonymous

tip of this sort—even one involving a trustworthy sub-

ordinate—would cause “doubt” that would necessitate his

ordering a commander-directed urinalysis. Indeed, as the

military: judge expressed it in one of her special find-

ings prior to ruling on the motion, “Lt Colonel Kind said

he viewed a suspicion of drug use as synonymous with

flightline safety and ordered the test to protect the flight-

line, treating the call as true and assuming ‘the worst

case.’ ”

Ultimately, the military judge denied the motion. In

the course of doing so, she articulated several “essential

findings” of fact that are reflected in our recitation

above, see RCM 905(d), as well as several underlying

conclusions of law. The basis for the judge’s ruling may

be gleaned from these “conclusions” :

6a

One: To be lawful a command must relate to a

specific military duty and be one which the superior

commissioned officer was authorized to give to the

accused. ...

Two: Air Force Regulation 30-2 gives guidelines to

a commander for deciding when to order a com-

mander directed urinalysis. Commanders are told

they can refer members when there is a reasonable

suspicion of drug abuse. ... While anonymous phone

calls are odious, the specific reference by the caller to

the accused, to the drug used, and to a recent date

when the caller said the accused had used marijuana,

was for Lt Colonel Kind a reason to be suspicious and

to order a urinalysis to assure the safety of all per-

sonnel using the flightline.

+ * * *

Five: Lt Colonel Kind had a reason to order the test.

His action, even though it was based on an anony-

mous phone call, was not arbitrary because the order

was necessary and was a reasonable means to safe-

guard and protect the usefulness of the members of

his command. Lt Colonel Kind’s order to the accused

to provide an adequate urine specimen to the Davis-

Monthan Hospital Laboratory on 21 July 1988 was a

lawful order.

(Emphasis added).

II

As indicated earlier in this opinion, the regulation on

which the parties in this case have focused throughout is

AFR 30-2. Specifically, paragraph 5-8 of that regula-

tion, dated 18 April 1986, prescribed:

A Command-Directed Examination. The com-

mander can refer a military member for urine test-

ing when there is a reasonable suspicion of drug

abuse .. . A command-directed examination may be

7a

conducted to determine a member’s competency for

duty and the need for counseling, rehabilitation, or

other medical treatment:

a. Commanders usually direct urine testing in all

unusual circumstances of aberrant, bizarre, or unlaw-

ful behavior in which probable cause does not exist

but there is a reasonable suspicion of drug abuse.

Such behavior may include, for example, unauthorized

absences, violations of safety requirements, disobedi-

ence of direct orders, apprehension or investigation

for drug offenses or intoxicated driving, involvement

in crimes of violence, or other incidents involving

repeated or serious breaches of discipline .... In

addition, apathy or defective attitude, or personality

change may, when examined in the context of other

circumstances, lead to a reasonable suspicion of drug

abuse and form the basis for command-directed urine

testing.

b. Results obtained from command-directed test-

ing may be used to refer a member to the Drug

Rehabilitation Program and in administrative dis-

charge action. Results may not be used against the

member in any disciplinary action under the UCMJ,

nor may they be used on the issue of characteriza-

tion of discharge in separation proceedings. . . .

Neither party could be convicted of violating Kind’s

order if that order—based on AFR 30-2—was not lawful.’

Against this backdrop, this appeal presents two funda-

mental questions to this Court.

1See United States v. Wallace, 2 MJ 1, 2 (CMA 1976) (‘“‘Inas-

much as the arrest order was illegal, the appellant’s subsequent con-

viction for breaking arrest cannot be sustained.”). Of course, the

lawfulness of Kind’s order—purportedly given pursuant to AFR

30-2—-depends upon whether it was predicated upon “reasonable

suspicion” as required by that regulation. See United States v.

Arguello, 29 MJ 198, 203 (CMA 1989) (“The Supreme Court and

this Court have also recognized that the Government is bound by its

own regulations, especially when the regulation is one which con-

8a

First, by what standard is “reasonable suspicion” tu

be measured in the context of AFR 30-2? Appellant urges

that it must be measured by a Fourth Amendment stand-

ard; and, indeed, the court below, by virtue of the vases

it cited in its opinion, implied that this is the standard

it applied (although in so doing it ruled adversely to

appellant’s claims). 29 MJ at 864. Nonetheless, the Gov-

ernment contends that certain language in the regulation

reflects “the fact that the drafters of the regulation did

not use the term ‘reasonable suspicion’ in the same man-

ner as the term is used in the criminal law arena.” Spe-

cifically, the Government points to subparagraph “a” and

to the fact that use of the results of a command-directed

examination “in a criminal prosecution” is expressly pro-

scribed. In place of the usual “criminal law” meaning of

“reasonable suspicion,” the Government argues:

The logical meaning of the term in the regula-

tion is that a commander cannot single out a member

for command-directed testing for no reason at all and

must have some basis for ordering the test. ... The

regulation was written for use by commanders, not

legal technicians, and it is therefore unrealistic to

define its terms by criminal law standards in this

context.

Second, whatever the standard against which “reason-

able suspicion” is to be measured in this context, did

Kind have “reasonable suspicion” to order appellant to

produce a sample of his urine? Appellant, of course,

fers a right or which benefits an individual.”). In some earlier

cases cited by the defense, the Air Force Court of Military Review

had reversed convictions for failing to ubey orders to submit urine

specimens, because it concluded the orders did not comply with

AFR 30-2.

This case was tried in terms of the lawfulness of Kind’s order

under AFR 30-2, and the appeal focused on the same issue. There-

fore, we need not consider whether any alternative basis might

exist for hoiding this order to be lawful.

9a

argues that he did not. Contrariwise, the Government

submits that, by either a Fourth Amendment or some

lesser standard, Kind had “reasonable suspicion” to order

appellant to preduce a sample of his urine under AFR

30-2.

A

The answer to the first question is reasonably sug-

gested by a thoughtful analysis of the opinions of the

Supreme Court in Skinner v. Railway Labor Executives’

Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d

639 (1989), and National Treasury Employees Union v.

Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685

(1989), and of our unanimous opinion last term in United

States v. Bickel, 30 MJ 277 (CMA 1990), which applied

Skinner and Von Raab to the military’s urinalysis

program.”

In Von Raab, the Supreme Court held that compulsory

urinalyses of some employees of the Customs Service—

whose duties, the Government could show, warranted such

an intrusion—were not unreasonable under the Fourth

Amendment. The majority reasoned:

We have recognized, however, that the “operational

realities of the workplace” may render entirely rea-

sonable certain work-related intrusions by super-

visors and co-workers that might be viewed as un-

reasonable in other contexts... . [I]t is plain that

certain forms of public employment may diminish

privacy expectations even with respect to such per-

sonal searches. .. .

489 U.S. at 671, 109 S.Ct. at 1393 (citations omitted).

Similarly, the Court in Skinner upheld Department of

Transportation regulations requiring blood and urine tests

2 Although consent and probable-cause searches are authorize

under Mil.R.Evid. 314 and 315, Manual for Courts-Martial, United

States, 1984, the heart of the program is routine inspections sanc-

tioned by Mil.R.Evid,. 313.

10a

to be given to certain railroad employees after major

train accidents.

In neither instance, though, were results of such tests

to be used as criminal e.idence. Referring to this in

Skinner, Justice Kennedy wrote for the majority:

The FRA has prescribed toxicological tests, not to

assist in the prosecution of employees but rather “to

permit accidents and casualties in railroad opera-

tions that result from impairment of employees by

alcohol or drugs.”

489 U.S. at 620-21, 109 S.Ct. at 1415.

After fully considering these two opinions in the con-

text of urinalyses under the rationale of the routine in-

spection of Mil.R.Evid. 313, Manual, supra, we concluded

in Bickel:

The very detailed regulations and policies estab-

lished by the armed services for drug testing not

only provide notice but also reduce the occasion for

arbitrariness and abuse of discretion.

Even though the positive results of drug tests usu-

ally are available to military prosecutors, we do not

believe that requiring servicemembers to submit urine

specimens is an unreasonable intrusion. We might

take a different view if the drug testing were designed

solely to obtain evidence for criminal prosecution;

but, as we understand the military drug-testing pro-

gram, that is not the case. A positive drug test may

result in admonition or adverse administrative action

for a servicemember—rather than in criminal prose-

cution.

Thus, we conclude that compulsory urinalysis may

be performed as part of a military inspection without

any requirement of probable cause or individualized

suspicion.

lla

The Supreme Court has not yet held that evidence

discovered in a lawful administrative inspection is

inadmissible in a criminal prosecution; and we doubt

that the Court will ever apply the exclusionary rule

to such evidence. Certainly, our Court has not done

so—unless “the purported inspection” was “only a

subterfuge for a search” for evidence to be used

in a criminal prosecution. See United States v.

Thatcher, 28 MJ 20, 24 (CMA 1989).

30 MJ at 286 (footnote omitted).

Of course, in Bickel, the “inspection” rationale under

consideration concerned “examination of the whole or part

of a unit, organization, installation, vessel, aircraft, or

vehicle, . . . conducted as an incident of command the

primary purpose of which is to determine and to ensure

the security, military fitness, or good order and discipline

of the unit, organization, installation, vessel, aircraft, or

vehicle.” Mil.R.Evid. 313(b). An inspection may include

“an examination to locate and confiscate. . . contraband,”

but it may not be “for the primary purpose of obtaining

evidence for use in a trial by court-martial or in other

disciplinary proceedings”; otherwise, by definition, it “is

not an inspection.” Mil.R.Evid. 313(b).

Jn Bair’s case, unlike the usual scenario of an “inspec-

tion,” a particular individual was singled out for the

urinalysis—a situation that presents a much greater risk

that the “inspection” simply is a subterfuge for an unlaw-

ful, nonprobable-cause search. Twice in Bickel, we took

care to distinguish our holding there from a situation in

which a urinalysis is “designed solely to obtain evidence

for criminal prosecution” or “was ‘only a subterfuge for

a search’ for evidence to be used in a criminal! prosecu-

tion.” 30 MJ at 285.

Mil.R.Evid. 313(b) also recognizes the special risk that

such an “inspection” might actually be “for the primary

purpose of obtaining evidence for use in a trial” and,

12a

thus, in reality be a subterfuge for a search. Accordingly,

the ru'e puts special restrictions on use of a urinalysis of

a specific individual, as opposed to urinalyses of the whole

or a nonindividualized part of a unit. In such instance,

“the prosecution must prove by clear and convincing evi-

dence that the examination was an inspection within the

meaning of” Mil.R.Evid. 313(b).

Perhaps in recognition of these concerns, the drafters

of AFR 30-2 provided that the results of a command-

directed urinalysis of a particular individual may not be

used as direct evidence in a court-martial. This provision

certainly argues in favor of a contention that command-

directed urinalyses are not primarily searches for crimi-

nal evidence. Nonetheless, under Skinner and Von Raab,

a urinalysis may not be directed merely at the whim of

a commander or on some “hunch.” Moreover, it would be

hard to justify a compulsory urinalysis as reasonable for

Fourth Amendment purposes if it purported to be pursu-

ant to a military directive but flouted the requirements

imposed by that same regulation to protect the privacy

rights of servicemembers. United States v. Daskam, 31

MJ 77 (CMA 1990).

In arguing that Kind’s order to appellant satisfied AFR

30-2, the Government contends that “reasonable suspi-

cion” is used in the regulation in a way different from

how it has been used in a line of cases concerned with

suppression of evidence because of Fourth Amendment

violations. Sce, e.g., Alabama v. White, 496 U.S. ’

110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); New Jersey v.

T.L.0., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720

(1985); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921,

32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). In support of this

contention, it is suggested that some of the “unusual cir-

cumstances of aberrant, bizarre, or unlawful behavior”

set forth in subparagraph a of paragraph 5-8 would not

13a

be an adequate basis for the conventional “reasonable

suspicion.”

Inherent in this contention are some dangers from the

government’s standpoint. If “reasonable suspicion” in the

regulation has the undefined, but broad, scope that the

Government suggests, then the regulation is much more

susceptible to constitutional attack under Skinner and

VonRaab. Thus, to avoid serious constitutional issues, we

believe that “reasonable suspicion” in AFR 30-2 should be

interpreted in harmony with the construction of that term

by the Supreme Court in determining the scope of Fourth

Amendment prohibitions. Moreover, unless the drafters

of the regulation intended “reasonable suspicion” to be

interpreted in this manner, we cannot fathom—and the

Government has not suggested—why they employed this

term.

B ,

The most recent Supreme Court discussion of “reason-

able suspicion” is in Alabama v. White, supra, which ire

volved a forcible stop of a vehicle because of an anony-

mous tip. There, the telephone report to the police was

“that Vanessa White would be leaving 235-C Lynwood

Terrace Apartments at a particular time in a brown

Plymouth station wagon with the right taillight lens

broken, that she would be going to Dobey’s Motel, and

that she would be in possession of about an ounce of

cocaine inside a brown attaché case. Alerted by this tip,

police “officers saw a brown Plymouth station wagon with

a broken right taillight in the parking lot in front of the

235 building,” and then they observed a woman leave the

building-—but not carrying an attaché case—and enter the

vehicle within the time frame indicated by the anonymous

informant. Following the vehicle, the police corroborated

that it was proceeding towards Dobey’s Motel, but they

did not verify the woman’s name or “the precise apart-

ment from which she left.” 110 S.Ct. at 2414, 2416.

14a

Although acknowledging that “it is a close case,” six of

the justices “conclude[d] that under the totality of the

circumstances the anonymous tip, as corroborated, ex-

hibited sufficient indicia of reliability to justify the in-

vestigatory stop of |White’s] car.” Jd. at 2417.

Unlike White, the anonymous tip relayed to Lieutenant

Colonel Kind contained no information as to the future of

third parties and, therefore, it could not be corroborated

by surveillance. Cf. /llinois v. Gates, 462 U.S. 213, 103

S.Ct. 2317, 76 L.Ed.2d 527 (1983); Draper v. United

States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Moreover, here the tip contained less detail than the one

received by the police in White—although even there a

discrepancy existed as to the informant’s prediction that

the suspect would be carrying an attaché case. In view of

these differences, did the information available to Kind

satisfy the requirements of “reasonable suspicion” —which

admittedly is “less demanding . . . than probable cause,”

see United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct.

1581, 1585, 104 L.Ed.2d 1 (1989) (quoted in Alabama

v. White, 110 S.Ct. at 2416).

The military judge, from her consideration of the evi-

dence, answered this question in the affirmative. The

Court of Military Review applied the test of “reasonable

suspicion,” as used in the context of criminal proceedings,

and gave the same answer because the information re-

ceived by Kind

was not a blanket assertion that everybody in his

organization used drugs. The information possessed

some internal indicia of reliability in that it named

specific individuals, the drug involved, and a general

time frame the drug was used. The commander’s de-

cision to order a “command-directed” urinalysis was

based on more than a “hunch” or a “generalized

suspicion.”

29 MJ at 864.

15a

We recognize that here the commander was concerned

with the harm that could result to flight operations if

appellant were using marijuana, as had been reported.

Thus, we might speculate that Lieutenant Colonel Kind

might not have determined that ‘reasonable suspicion”

existed if his squadron had been a headquarters unit in-

volved in paper-pushing, rather than one concerned with

flight operations. We do not believe that the magnitude

of a possible harm from a suspected crime is irrelevant in

determining the reasonableness of the suspicion. Thus, if

a military commander has received an anonymous tip

that a member of his unit is involved in sabotage or ter-

rorist activity, he may be entitled to more leeway in mak-

ing an investigative stop than if the reported offense is a

barracks theft.

We recognize that—like White—this is a “close case.”

However, for the same reasons as did the Court of Mili-

tary Review, we conclude that “reasonable suspicion” ex-

isted and that the order received by Bair was lawful.

III

The decision of the United States Air Force Court of

Military Review is affirmed.

Judge COX concurs.

SULLIVAN, Chief Judge (concurring in the result):

I concur in the result and vote to affirm appellant’s

conviction for this lawful-order violation. Art. 92, Uni-

form Code of Military Justice, 10 USC § 892. Admittedly

the regulation at issue in this case was poorly written

since some of its language appears to be somewhat incon-

sistent. The examples provided in the regulation conflict

with its use of the term of art (“reasonable suspicion’’),

at least as that term is found in Supreme Court cases.

Nevertheless, viewing this regulation in its entirety, I

would hold that an anonymous tip meets the regulatory

16a

standard delineated in AFR 3(-2. The examples for prop-

erly ordering a urinalysis are plainly less exacting than

the standard fashioned for a criminal stop in Alabama v.

White, 496 U.S. , 110 S.Ct. 2412, 110 L.Ed.2d 301

(1990).

The commander in this case was faced with a difficult

choice. His decision, however, complied with the regula-

tion in view of the following circumstances: The anony-

mous tip was specific and corroborated in minimum de-

tails. It identified recent use by appellant and a fellow

squadron mate in their correct unit and identified the

exact drug. These circumstances coupled with flight line

safety concerns rendered this urinalysis order one con-

templated within the regulation and hence lawful.

17a

APPENDIX B

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 27605

UNITED STATES

Ve

TECHNICAL SERGEANT BRUCE L. BAIR,

FR 529-88-9390,

United States Air Force

Sentence Adjudicated 22 Feb. 1989

Decided 11 Nov. 1989

Appellate Counsel for the Appellant: Colonel Richard

F. O’Hair and Captain Bernard E. Doyle, Jr.

-Appellate Counsel for the United States: Colonel Joe

R. Lamport, Colonel Robert E. Giovagnoni, Major Terry

M. Petrie, Captain Erie D. Placke and Captain Morris D.

Davis.

Before HODGSON, SPILLMAN and PRATT, Appel-

late Military Judges.

DECISION

HODGSON, Chief Judge.

On appeal, as he did at trial, the appellant argues that

an anonymous, unsubstantiated tip does not provide “‘rea-

sonable suspicion” to order a “command-directed” uri-

nalysis. Thus, appellant contends the order was not valid

and he committed no offense by failing to obey it. We

disagree.

18a

Air Force directives give a commander the authority to

order a “command-directed” examination of a member’s

urine where he has a “reasonable suspicion” of that in-

dividual’s drug involvement. Air Force Regulation 30-2,

Social Actions Program, para. 5-8 (18 April 1988) [here-

inafter AFR 30-2]. We have earlier held that a “reason-

able suspicion” is not a difficult standard for a commander

to satisfy. United States v. Browning, 29 M.J. 628

(A.F.C.M.R. 1988). When it decided to require service

members to submit to a urinalysis not supported by prob-

able cause or justified as an inspection under Mil.R.Evid.

313, the Air Force made a policy decision that the results

of such “command-directed” tests will not carry criminal

sanctions and cannot be used to characterize discharges.

AFR 30-2, para. 5-8b.

The facts before us are simple. On 21 July 1988, the

Security Police at Davis-Monthan Air Force Base received

an anonymous phone call stating that the appellant and

a Senior Airman Gary Parker had recently used mari-

juana. This information was relayed to the appellant's

commander who was “shocked” by the accusation and

“found it very difficult to believe.” Until this point he

had no reason to think that the appellant was involved

with drugs. The commander, nevertheless, ordered a

“command-directed” urinalysis based on the phone call

both to “exonerate” the appellant and to eliminate the

possibility of drug abusers working on aircraft.

Upon being ordered to provide a “‘command-directed”’

urine specimen, the appellant approached a subordinate

and asked him for a “clean” urine sample. The airman

was “nervous” about the request because the appellant

was a technical sergeant, and he reported the matter to

the authorities. The appellant did not provide a urine

sample as ordered, but instead substituted grapefruit

juice.

The trial judge denied the appellant’s motion to dismiss

because the commander lacked “reasonable suspicion” to

19a

order a urinalysis. The appellant then entered a condi-

tional guilty plea to willfully disobeying a lawful order

to provide a urine specimen and soliciting another to vio-

late the order. See R.C.M. 910(a) (2).

For the last three decades, drug usage and drug

trafficking in the Armed Forces have posed a substantial

threat to its readiness and efficiency. In the civilian

sector, drug abuse has cost billions of dollars in health

cost, lost industrial production and has wasted thousands

of lives. Both segments of the population, civilian and

military, have sought ways to identify drug abuse.

The military community has elected to use a urinalysis

program as one means to reduce drug abuse among its

members. The test results can be used in a criminal pro-

ceeding if they are admissible under the Military Rules

of Evidence. In situations where a commander lacks

probable cause, he may still order a service member to

provide a urine sample if he has a “reasonable suspicion”

that the individual is involved with drugs. Because the

reasonabie suspicion search is “warrantless,” the individ-

ual whose urine tests positive for drugs in such a search

is not subject to criminal sanctions although he may be

administraitvely separated. As we have mentioned, how-

ever, his drug usage cannot be used to characterize his

discharge.

Warrantless, suspiciousless drug testing programs for

public employees have been upheld by the Supreme Court

against Fourth Amendment challenges. See Skinner v.

Railway Labor Executives Association, 489 U.S. 689, 109

S.Ct. 1402, 108 L.Ed.2d 639 (1989) and Treasury Em-

ployees v. Von Raab, 489 U.S. 685, 109 S.Ct. 214, 102

L.Ed.2d 206 (1989). In each of the above situations, the

Supreme Court concluded that the government’s ‘“com-

pelling interest” in public safety outweighed private in-

terests and made the searches reasonable.

It is recognized that the “expectation of privacy” is

different in the military than it is in civilian life. Com-

dierent

20a

mittee for GI Rights v. Callaway, 518 F.2d 466 (D.C.

Cir. 1975). Further, the military community is unique in

sO many ways that it must respond to needs and goals not

present in the civilian sector. See Murray v. Haldeman,

16 M.J. 74 (C.M.A. 1983). Accordingly, if the order to

an individual to provide a urine sample had a valid mili-

tary purpose and met the conditions set forth in the

underlying directive, it is enforceable. United States v.

Russo, 50 C.M.R. 650 (C.M.A. 1975) ; Chilcott v. Orr, 747

F.2d 29 (1st Cir. 1984). Additionally, using the author-

ity of a military order to obtain a urine specimen is a

reasonable procedure in the military community. Murray

v. Haldeman, supra.

An order designed to halt drug abuse among military

members has a valid military interest and is disobeyed at

the peril of the recipient. See generally United States v.

Dumford, 28 M.J. 836 (A.F.C.M.R. 1989). Here, the

question is whether the appellant’s commander had a

“reasonable suspicion” to issue such an order.

In the context of criminal proceedings, the federal

courts have held that a “reasonable suspicion must be

more than a mere hunch,” United States v. Pearson, 791

F.2d 867, 870 (11th Cir. 1986), and be “more than a

generalized suspicion of criminal activity.” United States

v. Sandler, 625 F.2d 537, 539 (5th Cir. 1980). As we

have stated earlier in this opinion, “reasonable suspicion”

is not a difficult standard to meet. Here, the information

re'ayed to the appellant’s commander was more “than a

generalized suspicion of criminal activity” or “hunch.”

What the commander was told was not a blanket assertion

that everybody in his organization used drugs. The in-

formation possessed some internal indicia of reliability in

that it named specific individuals, the drug involved, and

a general time frame the drug was used. The com-

mander’s decision to order a “command-directed” uri-

nalysis was based on more than a “hunch” or a “general-

ized suspicion.”

2la

We are not suggesting that an anonymous tip will

always provide a reasonable suspicion” to justify a “com-

mand-directed” urinalysis. The facts here, however,

amount to more than a “mere hunch,” and the appellant’s

commander was justified in taking the action he did. Of

course, command-directed urinalyses do not ordinarily

support punitive action. In this case, we have held that

the appellant was properly ordered to take a urinalysis

based on reasonable suspicion. At that point he was sub-

ject only to administrative sanctions because the test was

based on reasonable suspicion. What made his conduct a

proper subject of a court-martial was his refusal to obey

the order to provide the urine sample. He was not court-

martialled, nor could he have been, for the positive re

sults of the urinalysis.

One final concern. What is a commander to do when

he or she is given information of individual’s possible

drug involvement? Should the individual be allowed to

continue unchecked in a job that might endanger his life

and those around him? In our view there is a compelling

public interest in safeguarding the unit’s mission that

outweighs an individual’s privacy interests. This is par-

ticularly so as here, where the intrusion is minor and

carries no criminal sanctions. The commander would

have been remiss if he had ignored the information and

done nothing. See generally United States v. Muniz, 23

M.J. 201 (C.M.A. 1987).

Finally, appellate defense counsel suggest that the ap-

pellant’s “good military character, outstanding leadership

and duty performance” make a sentence that includes a

bad conduct discharge, confinement for nine months, and

reduction to airman basic inappropriate. We do not

agree. Willfully disobeying an order strikes at the heart

of military discipline and soliciting a subordinate to pro-

vide assistance only compounds the misconduct. Further,

an examination of the record discloses that the appellant

previously received non-judicial punishment for wrong-

22a

fully using marijuana and a conviction by special court-

martial for larceny and wrongfully possessing marijuana.

We may, of course, consider the appellant’s entire mili-

tary record when determining sentence appropriateness.

United States v. Cavallaro, 3 U.S.C.M.A. 653, 14 C.M.R. 71

(1954) ; see also United States v. Shumacher, 11 M.J. 612

(A.C.M.R. 1981). The sentence is entirely appropriate.

See United States v. Holt, 28 M.J. 835 (A.F.C.M.R.

1989). For the reasons stated, the findings of guilty and

the sentence are

AFFIRMED.

Judges SPILLMAN and PRATT concur.

23a

APPENDIX C

Chapter 5

DRUG TESTING

* > * *

5-8. A Command-Directed Examination. The commander

can refer a military member for drug testing when there

is a reasonable suspicion of drug abuse or when it is con-

ducted as an examination of a specified member in con-

junction with a member’s participation in a DOD drug

treatment and rehabilitation program. A command-

directed examination may be conducted to determine a

member’s competency for duty and the need for counsel-

ing, rehabilitation, or other medical treatment:

a. Commanders usually direct drug testing in all un-

usual circumstances of aberrant, bizarre, or unlawful

behavior in which probable cause does not exist but there

is a reasonable suspicion of drug abuse. Such behavior

may include, for example, unauthorized absences, viola-

tions of safety requirements, disobedience of direct orders,

apprehension or investigation for drug offenses or intoxi-

cated driving, involvement in crimes of violence, or other

incidents involving repeated or serious breaches of disci-

pline. Individuals shculd be referred for a drug test as

soon as possible after the behavioral incident, but not

so soon as to prevent recent use from showing up on the

test (for example, about 2 to 4 hours). In addition,

apathy or defective attitude, or personality change may,

when examined in the context of other circumstances, lead

to a reasonable suspicion of drug abuse and form the

basis for command-directed drug testing.

b. Results obtained from command-directed testing may

be used to refer a member for evaluation and in admin-

istrative discharge action. Results may not be used

against the member in any disciplinary action under

the UCMJ, nor may they be used on the issue of charac-

24a

terization of discharge in separation proceedings. How-

ever, 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 evi-

dence of drug abuse (or lack thereof) has been first in-

troduced by the member.

(2) Disciplinary or other action based on independ-

ently derived evidence, including evidence of drug abuse

after the member’s first entry into the SART Program.

* ad * *

W UG. 8. GOVERNMENT PRINTING orrice;, 1991 301373 59004