OPINION:
As a Marine Corps judge advocate (military lawyer) and now a practitioner in a Northern Virginia law firm, I have spent years practicing military law, mostly defending Marines and sailors in trial and appellate work. While there have been changes in my 40-year tenure, service members remain subject to the Uniform Code of Military Justice and policies that set them apart from civilians. Still, fundamental fairness and due process remain vital to the system.
In the 1980s, the military instituted a urinalysis program to detect and discharge users of illegal drugs. No system is perfect, and there will always be false positives. In all cases with a positive result, however, there is a tendency to infer guilt, and this tendency (which is at odds with the presumption of innocence), often means that an important asset to our nation — a service member — will be needlessly discharged from the service.
The initial problem with the testing was false positives. But today the greatest risk to service members is a positive test based on innocent or unknowing ingestion of illegal drugs, and cocaine in particular.
For service members who test positive, we should insist on more evidence than merely the positive urinalysis test. Consider, for example, a military pilot, who costs millions of dollars to train. Does it make sense to discharge a pilot if there is no evidence of drug use other than the urinalysis results?
If the military intends to continue urinalysis testing for disciplinary or administrative discharge purposes, then it should consider instituting two changes. First, we should implement the system of testing used by Australia. A screening test takes place immediately when the sample is provided so that service members observe it. If it comes up “non-negative,” another sample may be provided right away to ensure that no mistake occurred. If the second sample tests non-negative, only then it is sent to the lab for confirmation.
Second, if a service member tests positive, then the military must not be permitted to take any administrative or disciplinary action unless other evidence of drug use — possession of drug paraphernalia, witnesses who saw the accused use drugs or acting under the influence of drugs or evidence of significant behavioral changes — is found. In short, there should be corroboration beyond the positive test.
Some service members do not even have the opportunity for a hearing; they are administratively discharged for a positive urinalysis. Service members should not be forced to establish their innocence when confronted only with a positive urinalysis. After all, drug abusers rarely abuse drugs only once.
Unknowing ingestion may be more common than we understand. Jeff Walterscheid, chief toxicologist of the Armed Forces Medical Examiner System, has noted that it has always been easy to experience innocent ingestion. For example, according to Mr. Walterscheid, cocaine is everywhere. American $20 bills contain traces of cocaine. If a restaurant worker or bartender who recently handled or used cocaine prepared your food, you could easily test positive for cocaine and have no idea how it entered your system.
The real issue is the interpretation of urinalysis results. Military law allows that knowledge of the presence of a controlled substance may be inferred from the positive test. This inference may be legally sufficient to satisfy the government’s burden of proof. But given the ease of innocent ingestion, this inference is manifestly unfair.
Such an inference should be prohibited in cases where a service member maintains his or her innocence and no extrinsic evidence exists. A positive urinalysis shows that the subject was exposed to drugs and nothing more. This should immediately trigger an investigation to determine if other evidence of drug abuse exists. If none surfaces, the charges should be dismissed.
The urinalysis test has become an aggressive and blunt disciplinary tool. This is why it remains vital to prove both intentional and wrongful use and not simply that an illegal drug was present in a service member’s system. At a time when we can barely fill the ranks, discharging service members based solely on a positive urinalysis is counterproductive on many levels. A dramatic overhaul of the urinalysis program is necessary and overdue.
• Dave Jonas is a retired Marine Corps lieutenant colonel. He served as general counsel of two federal agencies. He now practices law as a partner at Fluet.
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