Petition for Writ of Certiorari — Frost v. United States

Jn the Supreme Court of the Gnite

OCTOBER TERM, 1986

JIMMY E. FROST, JR.

AIRMAN, UNITED STATES AIR FORCE,

PETITIONER

v.

THE UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LEO L. SERGI,

Colonel, Office of The Judge

Advocate General (OTJAG)

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, D.C. 20332-6128

(202) 767-1562

“ounsel of Record

and

WILLIAM H. LAMB

Major, OTJAG

United States Air Force

QUESTION PRESENTED

Whether the Due Process Clause of the Fifth Amendment of

the Constitution of the United States requires military

authorities to preserve urine samples of military members

suspected of drug abuse in order for the results of urinalysis

tests performed thereon to be admissible in criminal prosecu-

tions when the defense requested, prior to the destruction of

the urine sample, that it be retained for the purpose of con-

ducting an independent defense test of the urine?

(i)

TABLE OF CONTENTS

Page

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Constitutional Provision Involved ................ 1

Statutory Provision Involved .................... 2

RI on unc cess seseceeeres 2

Reasons for Granting the Writ................... 5

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TABLE OF AUTHORITIES

United States Constitution:

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Uniform Code of Military Justice:

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United States Code:

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United States Supreme Court Opinions:

California v. Trombetta, 467 U.S. 479 (1984) .... 5,6

United States Court of Military Appeals Opinions:

United States v. Harper, 22 M.J. 157 (C.M.A.

a a ae 7

United States v. Kern, 22 M.J. 49(C.M.A. 1986). 5,

United States v. Krueger, 22 M.J. 210 (C.M.A.

1986), pet. for cert. filed 20 June 1986, docket

is ein sede ek eae b ives 3, 4, 5

iV

Table of Authorities — Continued

Air Force Court of Military Review:

United States v. Soler, ACM 25277 (pending) .... 7

Manual for Courts-Martial:

MCM, 1984, part IV, paragraph 37¢(5)

Page

No.

In the Supreme Court of the United States

OCTOBER TERM, 1986

JIMMY E.. FROST, JR.

AIRMAN, UNITED STATES AIR FORCE,

PETITIONER,

Vv.

THE UNITED STATES OF AMERICA,

RESPONDENT,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Airman Jimmy E. Frost, Jr., United States

Air Force, respectfully petitions for a writ of certiorari to

review the judgment and summary disposition of the United

States Court of Military Appeals entered in this proceeding.

OPINIONS BELOW

The decision of the United States Air Force Court of

Military Review is published at 19 M.J. 509 (A.F.C.M.R.

1984) (Appendix B). The summary disposition of the United

States Court of Military Appeals is reported at 22 M.J.

(C.M.A. 1986) (Appendix A).

JURISDICTION

The judgment of the United States Court of Military Ap-

peals was entered on 17 July 1986. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the Constitution of the United

States provides: “No person shall be ... deprived of life,

liberty, or property without due process of law.”

(1)

2

STATUTORY PROVISION INVOLVED

Article 46 of the Uniform Code of Military Justice (10

U.S.C. 846) provides: “The trial counsel, the defense counsel,

and the court-martial shall have equal opportunity to obtain

witnesses and other evidence in accordance with such regula-

tions as the President may prescribe.”

STATEMENT OF THE CASE

On 15 March 1984, the petitioner was tried by special court-

martial at Holloman Air Force Base, New Mexico, convened

by order of the Commander, 833rd Combat Support Group

(Tactical Air Command). Contrary to his plea, he was con-

victed of one specification of wrongful use of marijuana in

violation of Article 134 of the Uniform Code of Military

Justice (U.C.M.J.) (10 U.S.C. 934). The court-martia! sen-

tenced the petitioner to be discharged from the United States

Air Force with a bad conduct discharge, to be confined at

- hard labor for one month, to forfeit $200.00 pay per month

for one month and to be reduced to airman basic. On 8 May

1984, the convening authority approved the findings of guilty

and the sentence as adjudged. On 12 September 1984, the

United States Air Force Court of Military Review affirmed

the findings of guilty and the sentence as approved by the

convening authority. Upon discretionary review pursuant to

Article 67(b)(3), U.C.M.J., (10 U.S.C. 867(b\3)), the United

States Court of Military Appeals, on 17 July 1986, affirmed

the decision of the United States Air Force Court of Military

Review.

The petitioner was convicted solely on the basis of a

urinalysis test. The urine was obtained as part of a unit sweep

of the transition flight to which the petitioner was assigned

(R. 11). Upon being informed that the result of the test was

positive for marijuana, the military defense counsel made a

discovery request for, inter alia, information as to the chain

of custody, the identity of the person performing the test, in-

formation as to whether the urine specimens still existed and

access to the specimen for purposes of retesting by the

defense. Appellate Exhibits XVIII and XIX. These discovery

3

requests were dated 26 September and 27 September 1983

and included a request for the same information in the case of

United States v. Krueger, 22 M.J. 210 (C.M.A. 1986), which

case is also before this Honorable Court on a petition for a

writ of certiorari (docket number 85-2096 filed 20 June 1986).

At trial the petitioner was represented by military defense

counsel and civilian defense counsel (R. 4). The military judge

noted that the case of United States v. Krueger, supra, had

been tried the previous day, the defense counsel were the

same and the defense motions appeared to be the same (R. 6).

The defense did not challenge the military judge for cause (R.

6).

Defense counsel moved to dismiss the case because of a

failure to preserve a sample of the petitioner’s urine for in-

dependent defense analysis (R. 3%). Appellate Exhibit XII.

The military judge denied the motion and made the following

findings:

The following findings of fact are made. Number one, an

independent retest was requested by the Defense

Counsel on 26 September 1983. This was a timely re-

quest. Number two, the request was made known to the

Brooks— excuse me—a request was made to the Brooks

Laboratory to preserve the urine. The Brooks

Laboratory was aware of the request and had a duty to

preserve the sample. Number three, an aliquot was

delivered to LTC Collins in Toxicology on 27 September

1983. Number four, the parent urine sample was in-

advertently destroyed at sometime between 27

September and 28 November 1983 by a person unknown.

Number five, the aliquot that previously had been given

to LTC Collins in Toxicology was sent to the Center for

Human Toxicology at the University of Utah on the 28th

of November aiter notification to the Defense on 22

November. Number six, this was a good faith attempt by

the Government to send the sample to an independent lab

for the retest. Number seven, the Center for Human Tox-

icology was in fact at that time an independent labora-

\

4

tory and not under contract to the United States Air

Force. Number eight, there is no reasonable belief that

another retest would result in any evidence favorable to

the Defense and the motion is therefore denied. (R. 72,

73).

Certain appellate exhibits in this case memorialize a collateral

pretrial dispute between the government and the defense

regarding the sending of urine to the University of Utah for

testing. Appellate Exhibits XXII, XXIII, XXIV. The govern-

ment letter dated 21 December 1983, Appellate Exhibit XX-

III, asserts that military defense counsel was informed that

“urine samples” in both this petitioner’s case and the case of

United States v. Krueger, supra, would be sent to the Univer-

sity of Utah for testing, that the samples would be consumed

in the testing and that, upon being informed of these facts,

the military defense counsel did not “object.” The defense

counsel’s letters, Appellate Exhibits XXII and XXIV, assert

that defense counsel never approved of this procedure and

that prior to the government’s sending urine from this peti-

tioner to the University of Utah the defense requested on

“numerous occasions” the opportunity to obtain a sample in

order to have an independent test. As noted above, the

“parent urine sample” was destroyed sometime between 27

September and 28 November 1983 by a person unknown but

while such sample was under the exclusive contro! of the

government.! (military judge’s finding number four). The

government sent the aliquot remaining from a prior test to

the University of Utah for a retest. (military judge’s finding

number five). The Brooks laboratory where the “parent urine

sample” was originally sent knew about the timely defense re-

quest for an independent retest; the laboratory had a duty to

preserve the sample and did not do so. (military judge’s find-

ings numbers one, two, and four).

Appellate Exhibit XIX is a request from military defense counsel for ac-

cess to the urine specimens for purposes of an independent urinalysis, and

that request is coincidentally dated 27 September 1983.

oo

oO

REASONS FOR GRANTING THE WRIT

In affirming the Air Force Court of Military Review’s deci-

sion in this petitioner’s case, the United States Court of

Military Appeals relied on United States v. Kern, 22 M.J. 49

(C.M.A. 1986) and this Honorable Court’s opinion in Califor-

nia v. Trombetta, 467 U.S. 479 (1984). The disposition of this

case and the cited authority therefor are identical to the case

of United States v. Krueger, supra, presently on petition

before this Honorable Court. The reasons for granting the

writ in this petitioner’s case and in the case of United States

v. Krueger, supra, are thus the same even though counsel’s

articulation of those reasons may be somewhat different.

In the case of United States v. Kern, supra, cited as one

basis for the decision in this case, the Court of Military Ap-

peals held that when evidence is lost or destroyed the ap-

pellant must show that such evidence was of an apparently

exculpatory nature before the government is barred from

prosecuting and, moreover, that the appellant must also show

that the lost or destroyed evidence was of such a nature that

comparable evidence is unavailable. The short answer to the

rule in Kern is that, where the only basis for conviction is a

urinalysis, the urine sample is of a devastatingly exculpatory

nature if an independent defense test contradicts the govern-

ment’s test. Moreover, since the urine was collected at a par-

ticular time on the basis of which an accused is charged with

use of a drug during that time, there is not only no other com-

parable evidence, there is no other evidence at all that could

possibly exculpate an accused.” The Kern case on its facts is

inapposite as a basis to affirm this case since Kern was a

larceny case where the government retained pictures of the

2 It might be argued that a military accused should attempt to preserve

another sample of his urine whenever he provides urine for urinalysis. In

theory this may appear to be a consideration until one considers the scope

of the urinalysis program in the military, the locations throughout this

country and overseas where military personnel are required to provide

urine and where independent laboratories are not available and, finally, the

expense to the average soldier, sailor and airman of having such immediate

independent urine tests taken whenever the commander orders a “unit

sweep” as was done in this case.

6

stolen property, the evidence of the pictures of the stolen

property was obviously inculpatory not exculpatory, and the

military judge in order to avoid the least unfairness to the ac-

cused reduced the value of the property from $2,647.72 as

charged to “some value” (and hence reduced the maximum

punishment that could be imposed). The general rule an-

nounced by the Court of Military Appeals in Kern as applied

to urinalysis cases requires a disposition favorable to the

defense since the evidence of the urine is the only exculpatory

evidence that is or ever will be available to meet the par-

ticular charge of drug use where, as in this case, the

urinalysis is the only basis for prosecution. These considera-

tions are quite apart from the question of whether the

defense should bear the impossible and illogical burden of

having to prove that the urine is exculpatory without having

the urine. It may be necessary to fashion a different rule for

urinalysis cases and to bar prosecution where the urine has

been lost or destroyed for any reason. As to this petitioner, it

makes no difference if the parent urine sample were lost by

inadvertence or by design. The test, contrary to the implica-

tion of the military judge’s findings, should not be whether

the government acted in good faith, but whether the peti-

tioner has been deprived, through no fault of his own, of the

only basis upon which he could present a factual defense.

The second basis asserted by the Court of Military Appeals

to affirm this case is contained in this Honorable Court’s opi-

nion in California v. Trombetta, supra. It would appear that

the lower court’s opinion in Kern is a gloss of this Honorable

Court’s precedent in Trombetta. We submit that the rule in

Kern or Trombetta cannot be applied to urinalysis cases

where, notwithstanding a timely defense request, the urine

sample is destroyed. Yet again the facts of this case are

unlike 7’roméetta in several crucial respects. In this case the

military judge in finding number two noted the duty of the

laboratory to preserve the sample. (By sample, we of course

refer to the “parent urine sample.”) Thus, unlike Trombetta,

the sample here was not destroyed in accordance with normal

practice. We argue that there are significant differences be-

tween an on-the-scene “intoxilyzer” test and a urinalysis test

7

in that the intoxilyzer test may be less subject to tampering

and malfunction. There is at least one case of record where

there was tampering with urine samples. United States v.

Soler, ACM 25277 (pending before the Air Force Court of

Military Review). Moreover, a malfunction in the intoxilyzer

can be explained from two sources, radio waves and if the

suspect were dieting, both of which have at least the possibili-

ty of being established by an accused even apart from other

evidence that might rebut the appearance of intoxication

where the test is conducted “on-the-scene.” In the case of the

urinalysis, however, the possibilities of undetected human er-

ror are unlimited. Thus, again, it becomes evident that the

rules that may apply in other cases will not apply in a

urinalysis case where urinalysis is the only evidence of guilt,

where the defense has made a timely request for a portion of

the sample and where by inadvertence or otherwise, the

defense has been deprived of access to that sample. We argue

that, in these facts, this Honorable Court has the reluctant

duty to fashion a per se rule that will ensure fairness to this

petitioner and future persons similarly placed.

One final comment must be made on the practical policy

aspects of a case such as this. It used to be an axiom of legal

philosophy in the Anglo-American tradition that it would be

better for ninety-nine guilty persons to go free than that one

innocent person should be convicted. The urinalysis program

as it is implemented in military practice where evidence of

drug metabolites in a urine sample is alone sufficient to con-

vict a military accused of a knowing and wrongful ingestion

of such substances without other evidence may have set this

legal axiom on its head. United States v. Harper, 22 M.J. 157

(C.M.A. 1986). An innocent military accused charged with

drug use over a prior, usually substantial, period of time has

no other way to defend himself or herself except by an ex-

culpatory retest of the urine relied on by the government as

the sole factual basis for prosecution. An accused can, of

course, testify in denial and put the accused’s character for

truthfulness in evidence. Since, as in this case, an accused

may be charged with drug abuse “in North America” during a

8

period of six weeks prior to the urine being taken, in this case

from 25 June 1983 to 11 August 1983, such an effort will like-

ly be futile and, moreover, places an accused of less than

sterling character but who may otherwise be innocent of the

charged offense at an impossible disadvantage. So long as

military criminal practice permits an inference of wrongful

use from evidence of the urinalysis alone, the only effective

rebuttal must be to permit a defense examination and test of

the sample. United States v. Harper, supra; MCM, 1984, part

iV, paragraph 37c(5) Wrongfulness. Moreover, in this in-

creasingly technical and sophisticated world, it is an in-

evitable certainty that something must go wrong at some

time, somewhere. Murphy’s law as applied to aircraft opera-

tions or to the urinalysis testing program makes it certain

that human errors will occur and that the consequences will

be profound. To place the force of criminal sanctions, which

in the case of marijuana use in the military can include a

dishonorable discharge and two years confinement,. behind

the urinalysis testing program will inevitably and logically

result in the conviction of an innocent accused at some time,

somewhere, in some case, if it hasn’t happened already. This

being a certainty, we submit that it is little enough to ask that

the government be required to furnish a portion of the con-

tested urine sample to the defense or forego prosecution

altogether. Such a holding is required where urinalysis is the

sole factual basis for conviction because (1) there is absolutely

no other secondary evidence available, and (2) the test results

alone in military practice as set out in the Manual for Courts-

Martial are sufficient to cover all elements of the charged of-

fense of drug abuse including knowledge and wrongfulness.

In addition to these considerations, the military due proc-

ess standard set out in Article 46, U.C.M.J. requires that the

laboratory reports of tests on petitioner’s urine not be ad-

mitted against him. Article 46 requires that the prosecution

and the defense have “equal opportunity to obtain witnesses

and other evidence.” There is thus no limitation based on a

showing by the defense that the evidence is exculpatory,

rather the military standard mandated by congress requires

an equal opportunity that was denied in this case.

9

CONCLUSION

For the foregoing reasons, including the importance of the

issue involved, the petition for certiorari should issue.

Respectfully submitted,

LEO L. SERGI,

Colonel, Office of The Judge

Advocate General (OTJAG)

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, D.C. 20332-6128

(202) 767-1562

Counsel of Record

and

WILLIAM H. LAMB

Major, OTJAG

[United States Air Force

APP™NDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 51141/AF

CMR Dkt. No. $26386

UNITED STATES, APPELLEE

Vv.

JIMMY E. FROST, JR. (429-27-9257), APPELLANT

ORDER

On consideration of the granted issue (20 M.J. 365) in light

of United States v. Kern, 22 M.J. 49 (C.M.A. 1986), and

California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81

L.Ed.2d 413 (1984), it is, by the Court, this 17th day of July,

1986,

ORDERED:

That the decision of the United States Air Force Court of

Military Review is affirmed.

For the Court,*

/s/ JOHN A. CUTTS, III

Deputy Clerk of the Court

ec: The Judge Advocate General of the Air Force

Appellate Defense Counsel (LACEY)

Appellate Government Counsel (KISTLER)

*Judge SULLIVAN did not participate.

(1a)

2a

APPENDIX B

UNITED STATES AIR FORCE COURT OF MILITARY

REVIEW

ACM 826386

UNITED STATES

Ve

AIRMAN JIMMY E. FROST, JR., FR 429-27-9257

UNITED STATES AIR FORCE

12 Sep 1984

Sentence adjudged 15 March 1984 by SPCM convened at

Holloman Air Force Base; New Mexico. Military Judge:

Davia W. Wofford (sitting alone).

Approved sentence: Bad conduct discharge, confinement at

‘hard labor for one (1) month, forfeiture of two hundred

dollars ($200.00) per month for one (1) month and reduction

to airman basic.

Appellate Counsel for the Accused: Colonel Leo L. Sergi,

Major William H. Lamb and Major Francis T. Lacey,

USAFR. Captain Rory L. Rank filed a brief on behalf of the

accused. Appellate Counsel for the United States: Colonel

Kenneth R. Rengert and Captain Kevin L. Daugherty.

Before

HODGSON, FORAY, and MURDOCK

Appellate Military Judges

DECISION

MURDOCK, Judge:

Appellant was found guilty, contrary to his pleas, of mari-

juana possession* by a judge alone special court-martial. He

was sentenced to a bad conduct discharge, confinement at

*(Explanatory note not part of original text.) The petitioner was

convicted of use, not possession, of marijuana.

3a

hard labor for one month, forfeiture of $200, and reduction to

airman basic. Defense has asserted seven errors. We will

discuss those warranting our attention.

I

The evidence in this case is based on a urinalysis of the ac-

cused which was positive for marijuana. The sample was ob-

tained as part of a unit sweep of the transition flight to which

the accused was assigned. The sample was tested and

retested at the laboratory at Brooks Air Force Base, and

retested at government request at the Center for Human

Toxicology at the University of Utah (Center). At an ap-

propriate time during the development of this case, defense

counsel made a request for a portion of the urine sample so it

could be tested at a laboratory of the accused’s choosing.

About this time the government conducted its first retest of

the sample by submitting it for gas chromatograph mass

spectrograph testing at Brooks Air Force Base. Lab person-

nel withdrew a small quantity of the total sample and took it

to the proper lab for this test. Sometime before the re-

mainder of that small portion was returned for safekeeping,

all of the “parent” sample was inadvertently destroyed. This

left a total of less than five milliliters available for further

testing. Part of this remainder was sent to the Center for

retesting. Another part was sent to the laboratory which the

accused had selected in Albuquerque, New Mexico. The direc-

tor of the Albuquerque lab notified defense counsel that only

30 to 40 microliters of urine had been received and that was

an insufficient quantity to perform the desired tests.

The appellant now asserts that the results of the urine tests

should have been suppressed because the defense was not

able to perform an independent test of the urine sample. The

defense counsel relies on the reasoning in Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

and several cases including Banks v. Federal Aviation

Authority, 687 F.2d 92 (5th Cir. 1982). In Banks the court

' Hilliard v. Spalding, 719 F2d 1443 (9th Cir. 1983); People v. Gomez, 596

P2d 1192 (Colo. 1979); State v. Lovato, 94 N.M. 780, 617 P2d 169 (Ct. App.

1980).

4a

held that it violated the due process rights of two air traffic

controllers to be fired for drug use based on single urine tests

that the controllers had been unable to retest. The United

States Supreme Court recently struggled with “what might

loosely be called the area of constitutionally guaranteed ac-

cess to evidence” in California ». Trombetta, ___ U.S. ___,

104 S.Ct. 2528s L. Ed.2d _____ (1984). Trrombetta involved

breath tests for alcohol. The Court held that the item of

evidence to be introduced and dealt with at court was the test

result, not the breath sample. They held that the rights of the

accused are adequately protected when there is a chance to

attack the reliability of the test procedure and to cross-

examine testing personnel. In the present case both of these

opportunities were available, and personnel from both

Brooks Air Force Base and the Center were examined and

cross-examined extensively. This adequately protected the

accused’s rights and we find no error in admitting the test

results. ;

The defense also objected to admitting the results of the lab

test because they claimed the chain of custody had been

broken. They contend that about four milliliters of urine left

the Brooks lab and the director of the Center testified that

they received about one milliliter for testing. At trial it was

established that the four milliliter amount was a “scientific

estimation” by the Brooks lab officer of how much urine he

returned to safekeeping after the retest. (He estimated

because the container was not graduated below five

milliliters.) Later, as mentioned above, part of this remainder

was sent to the Center and another small portion was sent to

Albuquerque, It should be evident that all of a laboratory

sample does not need to be shipped everywhere in order to

keep the chain of custody intact. What is required is that “the

court . . . be satisfied that in reasonable probability the article

had not. changed in important respects.” United States v.

Courts, 9 M.J. 285 (C.M.A. 1980). The trial court was

satisfied that the chain of custody had not been broken. We

see no reason to disagree.

5a

Il

The specification in this case alleges that the accused “did,

at some place in North America, from on or about 25 June

1983 to on or about 11 August 1983 wrongfully use mari-

juana.” Defense objected, at trial and on appeal, to this

specification asserting that it was overbroad. Further, they

assert that the government failed to establish jurisdiction

because they did not prove that the accused had exhibited any

psychological effects of the alleged drug use. Trial counsel ex-

plained the words “North America” were used to include drug

use in Mexico because Holloman Air Force Base is about 75

miles from the border and “Air Force personnel frequently

visit it on non-duty days.”

National borders do not limit the operation of the Uniform

Code of Military Justice. U.C.M.J., Art. 5, 10 U.S.C. 805; see

also United States v. Newvine, 48 C.M.R. 188 (A.F.C.M.R.

1974). It is well established that almost any drug use by a

servicemember is service connected. O'Callahan v. Parker,

395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed. 2d 291 (1969); Relford

v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed. 2d 102

(1971); United States v. Trottier, 9 M.J. 337 (C.M.A. 1980);

Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983). In

Haldeman, the Court of Military Appeals held that court-

martial jurisdiction exists over servicemembers when they

enter a military base “subject to any physiological or

psychological effects of the drug.” (emphasis added) In the

present case the test was given on base and the results were

positive for marijuana. That is sufficient physiological effect

to establish jurisdiction.?

* Good pleading practice should result in precisely drawn specifications.

Unfortunately, some offenses by their nature make it difficult to limit the

location of the offense to a small area. For example, it is permissible to

charge absence without leave by alleging absence from the Air Force.

United States v. Brown, 24 C.M.R. 585 (A.F.C.M.R. 1957) Drugs, because

they are frequently used secretly and they can be used almost anywhere,

would seem to require a certain latitude in alleging the location of their il-

legal use. Although we find the specification in this case to be legally cor-

rect, we urge restraint and discourage the use of such “shot gun” pleading.

6a

Ill

Finally, defense asserted that the military judge erred by

not allowing day for day credit for “illegal restriction” based

on the time the accused was restricted to the hase while he

was assigned to the base transition flight.* We disagree.

Because of the accused’s poor military record, which in-

cluded two Article 15 punishments, his immediate com-

mander decided to discharge him administratively. The ac-

cused was transferred to the base transition flight on 7 June

1983 and an administrative discharge action was initiated the

next day. For some unexplained reason, the accused’s com-

mander restricted him to the base on 2 August 1983. No

evidence was introduced to connect this restriction to the cur-

rent charges. In fact, the restriction began nine days before

the unit sweep_was conducted and 21 days before the test

results were known. The court properly held that this restric-

tion was not related to the court martial charges and should

not be considered for sentence credit.

The remaining assertions of error are without merit. Ac-

cordingly, the findings of guilty and the sentence are

AFFIRMED.

HODGSON, Chief Judge wd FORAY, Senior Judge,

concur.

OFFICIAL

CHARLES L. WILLE

Captain, USAF

Chief Commissioner

3 This “unit” is part of the Combat Support Group and apparently acts as

a holding area for servicemembers from all base units who are awaiting ad-

ministrative discharge.

The loose practices revealed by this case should serve as a caution. The

appellant’s commander took steps to discharge him administratively in

early June. One such step was to transfer him to the transition flight on 8

June 1983. He was still there awaiting discharge when the test results

became known 77 days later. Whatever their utility, transition units may

subject commanders to criticism when their existence encourages com-

manders to ignore their responsibilities by allowing airmen who should be

discharged expeditiously to languish in a transition unit.

U.S. GOVERNMENT PRINTING OFFICE: 1986— 161-474/21032