This should be compared with the facts in U.S. v. Rodriguez, 23 MJ 896 (ACMR, 1987). There, the
battalion commander stated that "his primary purpose in conducting the urinalysis testing was to
implement the Army's policy of controlling drug abuse." He explained that "he believed some form of
disciplinary action would be appropriate for aviation personnel who tested positive for the use of illegal
drugs," although the type of disciplinary action "would depend on the soldier." The court explained that
what the rules prohibit "is an examination conducted for the primary purpose of securing evidence for
use in disciplinary proceedings. Here, the most that can be said is that the battalion commander had
multiple purposes when he ordered the urinalysis testing...This does not inexorably equate to an
improper primary purpose." The court then concluded that "an inspection conducted for the purpose of
preventing and correcting conditions deleterious to readiness of the unit is more than an effort to find
evidence for prosecutorial purposes. The clear intent of the primary purpose language in the rule is to
permit the use at trial of evidence that was discovered in the course of an inspection directed towards
security, military fitness, or good order and discipline...A properly conducted urinalysis test of a unit is
unquestionably supportive of the military mission in that it ensures the readiness of the unit to perform
its mission."
Based on these factors, the court concluded: "The fact that disciplinary proceedings are
incidentally supported by a properly conducted inspection does not control. So long as the primary
purpose of the examination is a proper one, a secondary purpose is not dispositive, even if that
secondary purpose is the contemplation of disciplinary proceedings." The court explained that as a
practical matter, "a commander who does not recognize the possibility of disciplinary actions arising
from a positive urinalysis test is either naive or is engaging in deliberate ignorance." There is, then,
nothing wrong with having "mixed purposes." In fact, such mixed purposes "are clearly recognized
through the use of the primary purpose language. No particular purpose is automatically the primary
one when several purposes are involved." The courts then recognize that if there are mixed purposes,
"the primary one being other than to gather evidence for disciplinary action, the evidence may be used."
This is an issue of fact which will turn on the specifics of a given case. The testimony of the
commander may prove critical. U.S. v. Austin, 21 MJ 592 (ACMR, 1985). Remember, if the primary
purpose is to gather evidence for use at a court-martial or other disciplinary proceeding, then it is not a
valid inspection. US. v. Vincent, 15 MJ 613 (NMCMR, 1982). Members of the unit who have previously
been in trouble are also subject to the inspection. There is no requirement to exclude them due to their
earlier activities; their inclusion does not transfer the inspection into an illegal search. U.S. v.
Shephard, 24 MJ 596 (AFCMR, 1987).
MP1021
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