Generally Speaking (23 page)

So, where an Article 15 hearing was a routine part of my week as a company commander during the troubled 1970s at Fort McClellan, it was most unusual as a battalion commander in the mid-1980s. However, when I took command of the unit in Augsburg, I sent a memo to my subordinate commanders announcing my policy of reserving judicial responsibility for certain categories of cases: all charges against officers and senior NCOs, as well as all cases involving assault and drug charges. Among other legal reasons, my purpose in officially stating this policy was to help set a climate in which it was clear to the entire battalion what I considered intolerable behavior. And that behavior included assault of any kind—often a consequence of the heavy alcohol use being systematically reduced in the Army—as well as use of illegal drugs.

Drug abuse posed a particular problem for Military Intelligence soldiers in Europe during the Cold War. We were all potential targets of hostile intelligence services, which were constantly seeking to recruit agents from NATO ranks. Soldiers with a drug problem were especially vulnerable; they could be blackmailed with threats of losing their security clearances, and they needed extra money to pay for their habit.

Fortunately for me and my fellow commanders, the American military had a vital new weapon in the arsenal of defensive measures against illicit drug use: the urinalysis test. As in all units, the test was administered to randomly selected soldiers based on the last digits of our Social Security numbers (this selection included me and the other battalion officers). The U.S. Army installation in Augsburg supported the drug program, which was administered as often as needed to ensure that all soldiers and officers were tested on the average of 1.5 times a year. The success of the test was that no one ever knew when their number would come up and they'd have to immediately report and provide a sample. As one might expect, very few soldiers had tested positive for recent drug use.

So I was concerned when I received a phone call alerting me that a staff sergeant in our battalion had been found to have a positive urinalysis for recent marijuana use. The call was an informal heads-up to let me know that the official results stating this NCO had tested “hot” would reach my desk the next day. On checking the staff sergeant's record, I found he had never been a disciplinary problem. Moreover, further inquiry revealed he was well liked and well respected, a veteran with more than fifteen years' service. My initial reaction was to wonder if there could possibly have been some mistake on the urinalysis, but deep down I doubted this because I knew how carefully the Army preserved the scientific integrity of the entire testing process.

But my personal opinion was irrelevant. Military justice demanded that I initiate disciplinary action. The staff sergeant would be offered an Article 15, an administrative process less threatening than a court-martial, which is a formal judicial proceeding and could result in his having a federal conviction on his record. An Article 15 hearing was nonjudicial—I wasn't a military judge and there would be no jury—but an administrative finding of guilty on the charges would harm the NCO's career even though a notation of an Article 15 in a sergeant's record had not been that unusual thirty or forty years before. The Army had changed since then, however. So the staff sergeant had a lot riding on the outcome of this hearing.

Accordingly, he carefully considered his options. These included consulting an Army lawyer (representing him, not the Army), deciding between a closed or open hearing, and calling others to speak on his behalf both to defend against the charges or to mitigate punishment if he were found guilty. The accused NCO did consult an Army defense lawyer and opted for a closed Article 15 hearing in which he would call sixteen other NCOs from the battalion to speak on his behalf. This was an unusually large number of defense witnesses for an Article 15 case, and the whole process of arranging the hearing took time, which was rather short because there is a prescribed limit to the number of days a soldier can be under charges before receiving a hearing.

As viewers of the hit television show
JAG
know, the Uniform Code of Military Justice contains many protections for both the accused and the military institution. For example, if a soldier demands trial by court-martial, the commander might decide to proceed or to drop the case. And most commanders do not offer the option of an Article 15 hearing to the accused unless their case is strong enough for a court-martial. Part of the strength of the Article 15 is that it isn't a game of bluff. It is a streamlined disciplinary process that is not an overreaction to less egregious offenses, which need not clog up the staff judge advocate's docket of more serious cases.

Everyone realized that the staff sergeant's character witnesses represented his only chance of winning a finding of either not guilty or charges not substantiated. This was because the urinalysis test was so accurate and tightly controlled as to be generally considered a completely objective standard, a factor made even stronger by the random nature of its administration. To counter this seemingly insurmountable evidence, however, the staff sergeant had assembled some of the best NCOs in the battalion to speak in his defense.

And it was a very credible group who took the oath and stood before my desk to speak that day. One by one, each stated how long he had known the accused and talked at length about his good conduct and character. Several had served with him as young soldiers in Vietnam and stressed that even at that time and place, where drug use was much more prevalent than in the 1980s in this battalion, the NCO had avoided the pervasive drug so many GIs had smoked. “Ma'am,” a fellow NCO said of his friend in Vietnam, “he didn't even drink much of that Ba-me-Ma beer at night down in the ville.” I'm sure he meant well, but that certainly did not help me make this decision.

When all the character witnesses had spoken, the staff sergeant's chain of command testified. To add to the dilemma, they were equally divided as to his guilt. We adjourned for the day. And I was faced with my decision. I had two sets of seemingly immutable and opposing facts to consider: On the one hand, the drug test was considered so tamperproof that false positives were virtually ruled out; on the other, sixteen of the battalion's best NCOs had testified under oath that it was virtually impossible for the accused staff sergeant to be a drug user and for them not to have known it. Although the legal clock was running, I decided to think the case over for a day.

Several facts became clear in my mind. First, a few close friends of the staff sergeant must have rallied to his cause as soon as the news of the test results became public. In turn, they probably had recruited a looser circle of friends and acquaintances to form an alliance of support, the group of sixteen NCOs who eventually testified for him under oath at the Article 15 hearing. I had absolutely no reason to believe that any of them were lying, but I saw that many might have simply jumped on the band-wagon to help out a buddy, a good guy, who they saw as being unjustly accused. But it was equally possible that the testimony of these witnesses represented “evidence” as valid as the biochemical laboratory results. I simply could not disregard the soldiers' testimony and be a fair commander. I was the leader and ultimately had to sort through the tangled bonds of loyalty that ran in several directions in this case: from the soldiers to their buddy, from me to the soldiers, and from all of us in the battalion to Army values.

I consulted the lawyer for the Army's case to clarify my legal options, based on the evidence. He told me I could find the staff sergeant guilty, not guilty, or charges not substantiated. Then I received a call from a chaplain who knew the staff sergeant.

“This is a very good soldier,” he said, speaking of the accused NCO. “I don't see how that test could have been accurate.”

I spoke with Colonel Simerly, my brigade commander, about this case. We had to carefully construct our conversation in order to preserve each echelon's judicial distance from influence by the next higher level in the chain of command. For example, if the colonel, as brigade commander, did not agree with what I, as a battalion commander, was doing in the case, he could not tell me how to proceed, but could only take the case from me and handle it himself. He was also reluctant to do this because by so doing he would lose the chance to review the case and thereby relinquish it to a yet higher authority than was appropriate for such an infraction.

At that point I was trying to maintain a frank and honest relationship with Colonel Simerly. And, to his credit, he acted in a thoroughly professional manner, allowing me to proceed to the best of my judgment, even though he didn't agree with my conclusions. The crux of my argument was that the disciplinary process was flawed in regard to the urinalysis. If the test were invariably 100 percent accurate, why were soldiers who came up positive provided either judicial or nonjudicial processes? Why weren't they simply sentenced? The fact was that my discretion as a commander
had
entered the equation, and I had carefully considered all of the evidence presented in the hearing, including the very persuasive sworn testimony of the sixteen NCO character witnesses in the staff sergeant's defense.

“You're the battalion commander, Claudia,” Colonel Simerly said. “You'll do what you have to do.”

Two days later, I reconvened the hearing and formally found that the charges against the staff sergeant had not been substantiated. I could not say that he was not guilty. In fact, there was strong evidence pointing to his guilt: the positive urinalysis test. On the other hand, I noted, if the test were to be treated as an automatic basis for the finding of guilt, commanders should not be given such cases to consider and reach a decision on guilt, innocence, and the appropriate punishment. At the end of the proceeding, the staff sergeant saluted smartly, his face showing great relief, did an about-face, and left my office. As he walked away, I felt a twinge of doubt: Was he truly innocent, or had he somehow beat the system?

My decision caused an immediate uproar among the drug enforcement staff of the Augsburg installation commander. They sent word to brigade, which Colonel Simerly delivered to me during a closed-door conference: Did Lieutenant Colonel Kennedy not understand the infallibility of these drug tests? Did she not have confidence in the scientific integrity of the urinalysis processing system? Was she soft on drugs?

Colonel Simerly was initially impatient with this potential controversy. “Claudia,” he said, “I don't think you can say that you don't believe the validity of this urinalysis. It
is
infallible, you know.”

But again to his credit, he listened to my counterarguments. I did not think the system was 100 percent infallible, I explained. And I also did not think commanders administering discipline had to necessarily explain where the failing lay.

“I believe the system itself has to show that it's infallible before it can be used to
force
an automatic finding of guilty,” I said. I added that I did not completely trust the urinalysis processing because it was a system that has multiple steps and many levels of people involved. There was just enough room for error, however rare that error might be, to cause some doubt. “And no, Colonel,” I added, “I am not soft on drugs, nor have I ever tolerated any gray area for drug use in the Army or outside the Army.”

Following this incident, the installation hastily arranged a drug education class for all commanders to explain the technical aspects of the exacting urinalysis process, with its multiple evidence safeguards and redundant procedures to rule out positive tests falsely linked to a soldier. Obviously the class had been arranged to educate me and other commanders, but if it had also been intended to single me out so that I would not act independently in the future, I was prepared to endure this period of doubts about my judgment. Eventually the truth would emerge. I felt deeply it was more important for me as a commander to preserve the sense of fair play, to demonstrate that a soldier's defense testimony would be given appropriate consideration combined with the outcome of a drug test. If that defense were as convincing as that of the staff sergeant's character witnesses, I believed the benefit of the doubt should go to the accused.

But I continued to discuss the case with Colonel Simerly. We agreed that a travesty of justice in any direction would not be good for the battalion: whether the man had been innocent and convicted or a habitual doper who had walked free. So we examined each aspect of the case for a strategy to find the truth. Old soldier that he was, Colonel Simerly came up with a sharp insight, “Sometimes truth can best be found by separating it from the legal process.”

This was a strategy that we jointly created as a means to determine the truth. About ten days after the Article 15 had been completed, I ordered the staff sergeant to report and submit another urinalysis. The results of this test would not be legally binding because the urinalysis had not been random and there was no probable cause to order it. But its results would give us another test of the NCO's drug status. If he tested negative, this wouldn't have completely allayed my concern about his previous urinalysis, but would partially have supported my finding of charges not being substantiated in the Article 15. My reasoning here was that one could use patterns to discern human behavior. After all, this second sample would only give us information for the current period of a few days. But if he were using drugs at that time, there was a strong chance he had been using them earlier. And if this second test were positive for recent drug use, it would give us a basis for starting him on rehabilitation, even though no legal action could be taken because the urinalysis was a directed test.

Two days later, the results of the second test showed that the staff sergeant had recently used marijuana. His company commander referred the NCO for mandatory drug counseling. Then the captain and I discussed the next step.

“Colonel,” the company commander said, “with your permission, I'm going to let every NCO who testified in his defense know the results of this second drug test.”