787 F.2d 552 (Fed. Cir. 1986), 85-2690, Williams v. Secretary of Navy

Docket Nº:Appeal No. 85-2690.
Citation:787 F.2d 552
Party Name:Gene A. WILLIAMS, Appellant, v. SECRETARY OF the NAVY, Appellee.
Case Date:March 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 552

787 F.2d 552 (Fed. Cir. 1986)

Gene A. WILLIAMS, Appellant,

v.

SECRETARY OF the NAVY, Appellee.

Appeal No. 85-2690.

United States Court of Appeals, Federal Circuit

March 18, 1986

Page 553

Edward F. Halloran, Virginia Beach, Va., argued for appellant.

Jay S. Bybee, Dept. of Justice, of Washington, D.C., argued for appellee. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., Elsie J. Munsell, U.S. Atty. and Anthony J. Steinmeyer.

Before MARKEY, Chief Judge, BALDWIN and NIES, Circuit Judges.

MARKEY, Chief Judge.

Gene A. Williams (Williams) appeals from an order of the United States District Court for the Eastern District of Virginia dismissing his complaint for failure to show (1) a deprivation of due process at his court-martial for drug abuse, and (2) damages. We remand with instructions to vacate the judgment.

BACKGROUND

(a) Congressional Concerns

Congress has long been concerned with the use of drugs in the armed forces. In 1971, it described drug abuse as "a profoundly serious national problem that is having a grave effect on the Armed Forces." Conf.Rep. No. 433, 92d Cong., 1st Sess., reprinted at 1971 U.S.Code Cong. & Ad.News 1495, 1505. In 1978, the House Select Committee on Narcotics Abuse and Control found that "[d]rug abuse constitutes a significant drain upon the military in both human and monetary terms" and found a need for an investigation into "the effect of drug abuse on combat readiness." Drug Abuse in the Armed Forces, 95th Cong., 2d Sess. 26 (1978). Numerous hearings have been held and reports

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issued on drug abuse problems facing the military. 1 Most recently, the House Select Committee concluded study missions to Hawaii, Asia, and Italy, during which it heard testimony that drug abuse impairs productivity, health, safety, and military readiness. The Committee Report specifically noted a Department of Defense study attributing a May 1981 jet crash aboard the U.S.S. NIMITZ to use of illegal drugs by the pilot and crew. See International Narcotics Control Study Missions to Latin America and Jamaica, Hawaii, Hong Kong, Thailand, Burma, Pakistan, Turkey, and Italy, H.R.Rep. No. 951, 98th Cong., 2d Sess. 196-97 (1984).

In an effort to reverse the debilitating effects of drug and alcohol abuse in the military, Congress enacted legislation directing the Secretary of Defense to provide means for identifying, treating, and rehabilitating drug and alcohol dependent members of the armed forces. 10 U.S.C. Sec. 1090 (1982) (formerly Pub.L. 92-129, Title V, Sec. 501, 85 Stat. 361, repealed by Pub.L. 97-295, Sec. 6(b), 96 Stat. 1314). Department of Defense (DOD) and the Department of the Navy (Navy) issued instructions under this directive, two of which are particularly relevant here: (1) Secretary of the Navy Instructions (SECNAVINST) 5300.28 (June 12, 1981), and (2) Chief of Naval Operations Instructions (OPNAVINST) 5350.4 (November 29, 1982).

SECNAVINST 5300.28 stated that use of drugs "in any amount" was "incompatible with the maintenance of high standards of performance, military discipline, readiness and reliable mission accomplishment." It emphasized that "[f]ailure to identify drug abusers ... can cost the lives of abusers, interferes with reliable mission accomplishment, and can cost the lives of military and civilian personnel." It further provided that identification of drug abusers was essential if drug abuse among Navy personnel was to be eliminated, and authorized commanding officers to "make fullest use of administrative and punitive procedures" to control alcohol and drug abuse.

Under SECNAVINST 5300.28, commanders were encouraged to use a number of measures--including inspections, trained dogs, and urinalysis--to detect drug use. In particular, the Secretary stated that commanders should make "judicious use" of command-directed unit urinalysis where there was reason to suspect drug use, especially in high-use areas. He noted, however, that under then-existing DOD regulations the results of the urinalysis could not be used for disciplinary purposes.

In September 1981, at hearings before a House Select Committee, outraged Members of Congress stated that the results of a recent fact-finding mission and survey of U.S. military personnel revealed "a shocking level of drug abuse" within the military. Drug Abuse in the Military--1981 Hearing Before the Select Committee on Narcotics Abuse and Control, 97th Cong., 1st Sess. 2 (1981) (Statement of Representative Leo Zeferetti). Members of the Select Committee found that "critical national security issues" were at stake, that because of severe drug abuse, the military could no longer ensure the combat readiness of its troops, and that the United States was faced with "a real and present danger to its security." Id. at 5 (Statement of Representative Benjamin Gilman).

To meet Congress' concern that alcohol and drug abuse be detected and eliminated from the Armed Services, Army and Navy representatives assured the Select Committee that new initiatives were being taken: (1) improved testing procedures, including

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urinalysis, to detect the presence of drugs such as marijuana; and (2) lifting of internal restrictions on the use of urinalysis results for disciplinary purposes. Id. at 36-38 (Statement of Brigadier General William Louisell); 173-74 (Statement of Rear Admiral Paul Mulloy).

Following those hearings, Navy issued three drug abuse program directives between December 1981 and February 1982. On December 23, 1981, the Chief of Naval Operations issued NAVOP 172/81, in which he stated that drug abuse would not be tolerated in the Navy at any time: "[T]he illegal use of drugs, including marijuana, adversely impacts on the physical and psychological health of an individual ... [who] becomes an unacceptable risk to the safety of his/her shipmates." Strict guidelines were adopted for dealing with drug abusers, including trial by court-martial for anyone thrice identified as a user of drugs.

NAVOP 178/81, issued December 29, 1981, announced changes in urinalysis technology enabling Navy to expand its drug abuse urinalysis program. It authorized the use of command directed urinalysis (i.e., on less than probable cause) for administrative separation purposes, but not for disciplinary purposes.

Finally, on February 4, 1982, the Secretary of the Navy issued an Interim Change to SECNAVINST 5300.28. Adopting a DOD policy, the directive for the first time permitted disciplinary action and administrative separations for, inter alia, any evidence of drug abuse obtained through a unit sweep urinalysis.

The Secretary cancelled NAVOP 172/81 and NAVOP 178/81 on November 29, 1982, replacing them with Chief of Naval Operations Instructions (OPNAVINST) 5350.4. Declaring a policy of "Zero Tolerance" for drug or alcohol abuse, OPNAVINST 5350.4 provided comprehensive guidelines for a unified Navy Alcohol and Drug Abuse Program. It further provided that urinalysis was the major means of detecting drug abuse at the unit level. All active duty personnel would be subject to urinalysis on an inspection basis, either as part of a random sampling or in a unit sweep. 2 While commanders were not to conduct inspections for the primary purpose of obtaining evidence, any evidence obtained could be used in disciplinary or separation proceedings.

The policy announced in OPNAVINST 5350.4 was confirmed in DOD Directive No. 1010.1 (March 16, 1983), directing use of the testing program to "[p]ermit commanders to assess the security, military fitness, and good order and discipline of their commands and to take appropriate action based upon such an assessment." It further provided that mandatory urinalysis testing could be conducted during inspections performed under Military Rule of Evidence 313. Use of urinalysis results was permitted under the Directive unless otherwise limited by the Military Rules of Evidence, the Directive, or other rules of the Department of Defense or any military department.

(b) Williams' Arrest and Court-Martial

Williams was a Chief Boiler Technician assigned to the Navy's Mobile Diving and Salvage Unit Two, Naval Amphibious Base at Little Creek, Virginia. (App. at 490). On March 22, 1983, the Commanding Officer of his unit, in accordance with Navy regulations, conducted a unit sweep urinalysis. The samples obtained were tested by the Navy Drug Screening Laboratory in Portsmouth, Virginia using radioimmunoassay, gas liquid chromotagraphy (GLC) and gas liquid chromatography/mass spectrometry ("GC/MS") tests. (The GC/MS test is generally considered the most accurate test available to the scientific community.) Williams tested positive for tetrahydrocannabinol ("THC"), a metabolite indicating

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the presence of marijuana in his system.

On April 18, 1983, the Navy charged Williams with violating Article 134 of the Uniform Code of Military Justice, 10 U.S.C. Sec. 934 (1982). The charge stated that he did:

in the vicinity of Hampton Roads, Virginia, while not on a period of extended leave did, on or about March 15, 1983 to March 22, 1983, knowingly and wrongfully use Marijuana, a Schedule I Controlled Substance.

Williams was tried by Special Court-Martial, 3 and was convicted of the charge on June 10, 1983. He was sentenced to be "reduced in paygrade from E-7 to E-5, to perform hard labor for sixty days without confinement, to be restricted to the limits of his ship or station for a period of sixty days ..." (App. at 492-3, Stipulation p 10). When the sentence was approved, his reduction from paygrade E-7 was changed to E-6. Because he was relieved of all diving duties, Williams was no longer eligible for diving proficiency pay. Processing of Williams' Administrative Discharge began on July 25, 1983. His punishment...

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