I have taken some time to sit with and to reflect on how best to comment on a growing trend of an abuse of power in military justice that deeply troubles me. When I consider the “commander’s options” that I once briefed to commanders whom I provided legal advice, although I knew and understand at a very basic level that commanders could combine their military justice and administrative tools, it was not something that I advised anyone to do. I never imagined the abuse of power that could be wielded against any service member, and I cannot fathom what is moving legal advisors at the highest levels to do so.
Most recently, the “wheels of justice” flattened a man I believe wholeheartedly is innocent of any criminal wrongdoing.
My client tested positive for the metabolite for marijuana on a random urinalysis. This kind of result is not altogether unusual, especially here in Washington where cannabis use is commonplace. What stood out at first blush was that he was an Officer. It still happens, but I would venture far less often than among enlisted ranks. He also claimed he had never ingested any marijuana, whether edible or by vape or good old fashioned smoking. Again, people often claim innocence so I was not particularly stirred by his claim.
But as we sifted through the facts and information, I came to believe his urinalysis was the result of him innocently accepting a mint that had been offered him as he finished a meal in an Irish pub he frequented. As we both learned, companies manufacture “THC mints” with varying levels of THC in them, and often people make their own homemade versions. The mint, he explained, came from a small tin like any other off-brand ALTOID® type mint. I was still skeptical. Shouldn’t he have felt the effects of ingesting a “THC mint”? Yes, he should have. But this man had been recovering from a second oral surgery within days of each other and was taking prescription pain medication that easily would have masked any euphoric effect from the mint.
We began working to collect evidence to corroborate his account of his whereabouts prior to the urinalysis. We collected available receipts from the pub, from the grocery store where he bought liquids for his recovery, and we amassed his medical records to show the surgeries. We gathered text messages and phone records to narrow down any opportunity for him to have intentionally obtained any THC products. We even unearthed records from his gaming system to demonstrate as much of a timeline of his whereabouts as we were able.
The first command action he faced as a Commanding General level Article 15 (nonjudicial punishment). As was his right to do, he instead demanded trial by court-martial. He concurred with my advice that the CG would assuredly find him guilty, and that the military justice process would enable us to use all available resources to demonstrate his innocent ingestion.
Even after months of processing, I honestly cannot appreciate how availing oneself of a path could have led to a series of such vindictive actions as would befall this poor young man.
We braced for court-martial, and I began drafting the request for the trial counsel to use subpoena power to obtain the receipts from other patrons who paid in the hours before and the hours after my client. We were searching for the man with the mints.
The next shot across his bow, however, was a General Officer Memorandum of Reprimand (GOMOR). But the GOMOR did not come before a henchman prosecutor reached out with a cautionary tale. More on that in just a moment… Our response to being reprimanded for wrongful use of marijuana?
- I am a civilian defense counsel, and I represent LT UUU UUUUU.On behalf of LT UUUUU I am writing this response to the GOMOR that was served on him on 8 April 2019 for an allegation of wrongful use of marihuana.
- The CID investigation that forms the basis for this GOMOR has yet to be released to LT UUUUU or to me as his defense counsel.LT UUUUU was served a few supporting documents to a CG level Article 15, but he has never received the underlying law enforcement investigation. Upon information and belief, this GOMOR is not the final action to be taken against LT UUUUU pertaining to this allegation.
- The invitation to rebut the factual matters set forth in this reprimand jeopardizes the integrity of the military justice system and unfairly tries to subvert LT UUUUU ‘s Article 31(b) rights.The initiation of this parallel administrative measure creates the appearance that he is being reprimanded prematurely to punish him for invoking his right to counsel, for invoking his separate right to silence, and for asserting his right to demand trial by court-martial. In fact, the Chief, General Crimes Team, MAJ SSSSSS sent email communications outlining that your intent is to pursue general court-martial but that you might be persuaded from that course of action by the matters LT UUUUU submits to you in response to your parallel GOMOR. Continuing this course of action permits a member of the civilian community who learns of all attendant circumstances to believe that the Army is trying to secure a recitation of LT UUUUU ‘s statement to gain a Constitutionally improper tactical advantage to prosecute him.
- The undersigned urges you to carefully weigh the command’s interest in processing administrative actions to completion against fundamental principles of fairness upon which the military’s adjudicative process rests.A team of lawyers often requires months’ preparation to meet out a defense to allegations of drug abuse when, as here, the consequences potentially have everlasting consequences. The prosecutor’s apparent bullying tactics on your behalf cast further doubt upon the true impetus for issuing a GOMOR when you have evinced through him your intent to refer this matter to trial by general court-martial. Attempting to circumvent the government’s discovery obligations, to substantially lessen the burden of proof that is required by a trial, and to compel LT UUUUU to make a statement in this matter while dangling a proverbial carrot to not prosecute is an inappropriate function of the GOMOR system and represents in my estimation an unfortunate use of your discretion.
- Accordingly, we respectfully request that you withdraw this GOMOR and refrain from punishing LT UUUUU for any underlying conduct that will be judged at any later court-martial. Please permit the criminal procedures with all of its due process and protections to run its course before again considering the propriety of the reprimand process. Refraining from continuing down this course will enable LT UUUUU to later fully and fairly respond to the gravamen allegations within the context of and with the protections and assistance afforded him in a criminal trial.
- I thank you for your time and consideration of this matter.
Gauntlet thrown? Likely, yes. I stand by those words: that it is wholeheartedly an abuse of power to attempt to obtain a statement from any service member who has demanded trial by court-martial to issue them a written reprimand that invites demands a response. Perhaps some of my readers will think I made a grave tactical error, and that instead I should have trusted that by submitting our evidence the SJA would advise the CG to just drop the whole thing. You would be wrong.
Not only did they file the GOMOR in his official file, they preferred a court-martial charge AND served him with notice of elimination. Yes, you read that right. Our deadline to respond to the elimination came before the date of his scheduled Article 32(b).
We decided we did not have any other option than to respond as fully as we could to the notice of elimination. Surely, the SJA would see that it would not be just to fire this young Officer under the circumstances of what happened. Nope.
We provided thirty-two enclosures to a six-page memo that outlined all we had and what we hoped to gain from expert assistance and sought after subpoenas. I had already interviewed two forensic toxicologists who corroborated that my client would not have felt the THC given the pain medication he was taken, pain medication that was detected in the same urinalysis. Included in our many enclosures was a sworn affidavit from my client outlining precisely what had happened:
On Thursday, 7 February 2019, I had my first surgery at Madigan to remove all four of my wisdom teeth. I had been prescribed an oral rinse to keep the field clean, Ibuprofen to help control swelling, and 12 tabs of acetaminophen / oxycodone for pain management. I was also given 48 hours of quarters.
There was a complication in the surgery, which ended up necessitating a second surgery. After the first surgery, my mouth did not stop bleeding; I bled all night and did not sleep at all from needing to change out the gauze over and over. By the next morning, I knew that I needed to see a dentist because the blooding had not stopped.
On Friday, 8 February 2019, I contacted LT XXX XXXX to assist me in getting help. At around 0615, LT XXXX drove me to the battalion HQ. We were waiting until the dental clinic opened for dental sick call. LT YYY YYYYY, another co-worker, drove me to the Dental Clinic 2 to arrive in time for sick call at 0730. I still had to change out the gauze in my mouth every couple of minutes.
Personnel in the clinic took a look at my mouth and could not figure out what the issue was or how to stop the bleeding. They tried to do a few non-surgical methods such as using a sealant in my mouth, but it was not working to stop the bleeding. The clinic staff referred me to the oral surgeon at Madigan. I understand that they alerted the staff at Madigan’s emergency room to be ready. I walked into the Emergency Room at 0813 according to the discharge papers that I have. After they tried a few methods in the ER, they told me that the oral surgeon was going to need to open me up and see what was wrong. I went into surgery around 1100 and was discharged at 1200. As with the first surgery, the surgery did not require me to be put under anesthesia, and instead they only used a numbing agent.
A full bird colonel from the dental clinic and the full bird colonel that did my second surgery both apologized to me. One of them apologized for the “incompetence” of LTC ZZZ ZZZZ who had performed my first surgery. They explained that the surgery requires them to cut a blood vessel but apparently LTC ZZZZ did not cauterize the vessel; the blood vessel was left to bleed freely without proper repair.
LT XXXX was my ride home so I called him when I got out of surgery. This was when all of the snow was starting to hit the area. Our unit had already been told we would be working a half-day. When I called LT XXXX, they were finishing up a task or two. I headed to the pharmacy to pick up additional medication that the oral surgeon had prescribed to me, which included an antibiotic because of the risk of infection. The best I can estimate was that it took around 30 minutes or less to get the prescriptions from the pharmacy. I did not request or receive additional pain medication. The second oral surgeon gave me another 24 hours quarters, but this was the weekend now so it was not really necessary.
LT XXXX drove me home, and I would estimate that I got back between 1300 and 1330 hours. When I got back to my residence in Tacoma, I took 1 5mg tab of the prescription pain medication. The prescription permitted me to take 1 pill every 4 hours as needed for pain.
After I got back and took the pill, I mostly slept on my couch. I do not have cable so I was watching shows and movies using my X-Box with Hulu and Netflix. At my attorney’s direction, I tried to see if my X-Box would have any available records to show when I used it, and I have provided her with what I was able to get from calling customer service at Hulu and from downloading my Netflix usage. I drank Naked® smoothies and orange juice as part of a liquid diet. After I woke up all the way and while I was still at my home, I sent a text message to AAAA AAAAAAA, a woman that I was dating at the time.
After that I went to the nearby Stadium Thriftway because I needed ice cream to make milkshakes and other liquids. I used my USAA credit card, and I used powers of attorney for my lawyer to get the itemized receipts. After the store, I walked back to my residence, took another pain pill, and went to sleep for the night.
On Saturday 9 February 2019, AAAAAA and I exchanged a few more text messages about how I was doing and about me resting. I stayed in my home the whole day because of my recovering from the surgeries and because of the weather. The snow was significant and even if I was in a condition to drive, the road conditions were exceptionally poor. I was taking the Ibuprofen and then only when there was a flare up of pain did I take 1 of my pain pills. I believe the maximum that I took on any given day was two pills.
Before this experience I had never had a surgery or suffered from an injury that would require me to take opioid pain medication. I definitely felt the effects of the medication and tried to space out how often I took it.
On Sunday 10 February 2019, I turned to eating soft foods. I sent a text message to AAAAAA that I had walked to a pub called Doyle’s Public House at 208 St. Helens Ave South, Tacoma, WA 98402, which is two blocks away from my apartment at 220 Tacoma Ave South. I went to eat corned beef hash, and it definitely made me feel better to have something more significant in my stomach. I have the bank records to show the charge for $21.50. I was also able to get the credit card receipt from the pub and the itemized receipt showing what I had to eat and drink. As you can see from the receipt, I drank a non-alcoholic ginger beer. I was careful not to drink any alcohol because I knew how I was feeling with the medication on its own and that alcohol can amplify its effects. In looking at my phone records, I can recall that I called my mother who wanted to know how I was doing. I obtained my phone records but as I understand it, there is not a record of each text message because the ones between myself and LT XXXX XXXX and myself and AAAAAA were from iPhone to iPhone known as “iMessages,” an Internet-based messaging service.
The only activities I did were watch television and play video games. My video gaming system is hooked up to the Internet and from the best of my memory I played against someone. I believed that the X-Box gaming system has an internal records system of when I played, but the best that I was able to retrieve were some records of some gaming milestones that I hit during the relevant time period. Although there is not a precise date on the milestone, it states how many days ago it was that I hit the milestone to enable us to “date” them to 8 February 2019 since I downloaded them yesterday. If I am able to obtain any additional records, I also will provide any additional records that I can.
At some point after I woke up, I received notice of a DONSA (Date of No Scheduled Activity) via text message from staff Officers on a group text message that we use to put information out to each other. I still have the messages and will provide screen shots of the ones from this time period with my response matters. I estimate that I went to bed for the night around 2300 hours.
On Monday, 11 February 2019, I slept in until approximately 1000 hours. I consumed a total of two of the 5mg prescription pills during the day: one after lunch and one before going to bed at approximately 2300 hours. I had continued to alternate Ibuprofen to help with swelling and only take the prescription pain medication with a flare up of pain. I was also cleaning out the holes from the surgery with the oral rinse after every meal. At around 1800 hours, I received confirmation that due to the continuing snowy conditions, there would be another DONSA for 12 February 2019. Word came again from the group text we have among the staff Officers.
On Tuesday, 12 February 2019, I woke up at approximately 0800 with more wisdom tooth pain and took one 5 mg pill right away. I spent the morning inside my apartment watching television. At approximately 1200 hours, I took an additional 5 mg pain pill and left by foot for Doyle’s Public House. I wanted to watch the Manchester United versus Paris Saint Germaine soccer game, and since I do not have cable I could not have watched it at my residence. I also wanted to eat a meal other than the mostly liquid diet I had been consuming. I sat at the left end of the bar and ordered Shepard’s Hash. I have the itemized receipt from the pub. I began conversing with a slim Caucasian male. I really cannot recall much about his appearance other than a general impression that he had brown hair. My other impression is that he also seemed like a regular because he seemed comfortable there. With the roads as bad as they were I also suspect he lived close by like I did, but I did not see him arrive or leave. He was seated to my right, and as we watched the game, we were talking about the game. I know at some point I mentioned I was limited in what I could eat because I was recovering from oral surgery. Toward the end of the game, the individual asked if I wanted a mint. I accepted it. From what I can recall, the mint came from a tin like you would find for ALTOIDS®. The tin did not say ALTOIDS® but I believed it was an off-brand or some kind of local version. There was not any lettering on the mint that I noticed or any symbol on it either that I recall. It just looked like a plain small ALTOID® kind of mint. It also just smelled like mint, and there was nothing unusual about it.
As soon as I was notified of coming up “hot” on a urinalysis for THC, I started racking my brain for anything that I could have consumed that would explain it because I know that I never used drugs. My thoughts went immediately to that mint, and I felt so foolish and scared. I started looking at Google and learned there are THC mints. I looked at images to see if any of them looked like the mint the man offered me to see if I could possibly recognize the one that was given to me. The box that looks the closest is the Mr. Moxey’s Mints but the one that the man handed me was individually wrapped and at least from the images online the Mr. Moxey’s Mints do not appear to be individually wrapped. Neither my lawyer nor I wanted to go into any stores to try to do more research.
I did not feel any differently after I took the mint, but admittedly I was still feeling a bit loopy from the prescription pain medication I had taken before walking to the pub. The mint tasted like any other mint I have had before, and until being notified of the positive urinalysis I would never have suspected it was anything but a standard mint.
After the game ended, I paid my bill of $26.95 with the same USAA credit card. I left to go to Stadium Thriftway to purchase additional soft foods for the next few days. Once again I used my USAA credit card to buy the food and the statement shows the charge for $14.81. I was able to obtain itemized receipts from the Stadium Thriftway.
Afterwards, I walked back to my apartment to relax and to go through the routine that I go through to get ready for my next work day; I did a layout of my uniform and I packed my bag that I take in to the base. I also checked work emails remotely but as I recall there was not anything that was pressing or required a reply. I went to bed not long after.
On Wednesday, 13 February 2019, I went in for a follow-up appointment with the oral surgeon. He had told me he wanted to do a follow up on Monday, but then the receptionist called me on Sunday to cancel the Monday appointment and to reschedule for Wednesday at 0700 hours. He explained that the purpose for the follow-up appointment was to ensure my second operation was a success and there was no further bleeding or other possible complications. After the appointment, I went to the commissary to get something that I could have for breakfast. The best I can recall is that I bought a Naked® smoothie and one other item, but I cannot recall the other item. From my statement records, the total purchase was $5.24 on the same USAA credit card.
Afterward I headed to the office and by this time it was about 0930 hours to start the workday. The workday consisted of staying within the BDE footprint but mostly within the BN S3 Office. LT XXXX and LT YYYYY work in the same area and would be able to attest that I was there at work. Our workspace consists of one big bay with separate desks. I definitely sent a lot of emails from work, and I am making an effort to secure my sent file.
I stepped out for lunch at approximately 1130 to go back to the commissary. From the best I can remember, I bought another smoothie for lunch and also some basic non-food items so that I would not need to stop again after work. From the statement records, the bill was $16.12. I returned to the office to continue our daily due outs for the day. I left at approximately 1730 hours and drove back home.
It was then that I had my only prescription pain pill for the day. Up until that point I had only taken Ibuprofen and the antibiotic, and I had used the oral rinse to make sure food was not staying in the holes from my surgery.
I was notified at 2100 hours from the on-going group text that we would have a 100% formation the next morning at 0600 hours. With the border deployment that our unit was getting ramped up for and gathering for related big announcements I was not thinking about nor would I have concern for a urinalysis. I took my last pain pill for the night, set my alarm for earlier so I could make the formation, and then went to bed.
On Thursday, 14 February 2019, I arrived at the formation. Our company first sergeant, 1SG BB BBBB read off names from the roster for who needed to give our urine sample as part of the 20% test. From what I can recall, I was standing in the vicinity of LT XXXX, LT YYYYY, and CPT CCC CCCC. After being held in the holding area for about 45 minutes, I accompanied my observer to provide my sample. I signed my sample over to our UPL and left the holding area at about 0745 to start my day.
The prescription pill bottle of pain pills originally contained 12 pills when I filled it at the Madigan pharmacy, and I threw out 2 of them after not using them all as I had been instructed to do.
On 4 March 2019, LT DDDDDDD texted me and said that he needed to talk to me in his office. Once there he showed me a copy of the results of the failed urinalysis and the nanogram level of 59ng for THC. I was in shock. LT DDDDDDD gave me a written counseling. In a later conversation I told LT DDDDDDD that I am fighting this, and I believe I also shared with him that I did not do what I was being accused of.
I have never smoked marijuana. I have never vaped any products that claim to contain THC or any products called CBD oil whether they claim to contain THC or not. I have never knowingly or intentionally ingested any form of marijuana or THC edible. My only guess as to what possibly could account for the positive urinalysis was the mint the man gave me at the pub on 12 February 2019 because that is the only thing that I consumed that I did not buy myself.
When I received the Article 15, I was confused why they had said that I used marijuana between 14 January and 14 February 2019, but now I know that from my lawyer explaining to me that marijuana can stay in your system for up to thirty days.
I “turned down” the Article 15 and demanded trial by court-martial because I know that I did not ingest drugs by my own choice. I felt that a trial, however high the potential repercussions, was the best place to demonstrate my innocence. I know that I did not do what I am accused of, and I wanted the chance to prove it.
I am horrified that a simple gesture of accepting a mint may ruin my Army career and my future, and I am deeply worried that those entrusted with our system will not believe me.
Horrified indeed. So what did the government do when faced with evidence of actual innocence? Did they join us in our efforts to find the man with the mint? Nope. Instead, they dismissed the court-martial charge (Yay?) and forwarded his elimination to Human Resources Command. And he was fired without actual process.
He had demanded court-martial because he did not trust his command or the system at large. We never got to go to trial; they most assuredly knew they would lose. Because he did not commit the offense of wrongful use of drugs. He accepted a mint from a man at a pub. And for that he lost his commission, and will be forced to repay his ROTC scholarship. He lost his GI Bill and his honorable discharge. He lost civil service retirement points and any meaningful hope for future federal employment. He lost the ability to serve his country and he lost any faith he once had in our criminal justice system. We sought justice, but the government just wanted to “win.” They abused their power, plain and horrifically simple. Those at the helm of this masquerade should be horrified by their own moral compass. I learned a long time ago that just because the government has the option of taking a certain action, that does not mean that he should.
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