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Know the right thing to do when your drug test is wrong

It happens every morning in the military — a soldier, sailor, airman or Marine gets the call that their Social Security number came up and it’s time for a unit urinalysis.

Most service members don’t give a second thought to the possibility that they’ll come up positive. But can an innocent person test positive? The answer, emphatically, is yes.

Many commanders want to believe only drug users test positive on unit urinalysis. This is simply untrue. My partner, Greg Rinckey, who served as an Army trial defense counsel for many years, told me about one of his cases in which a young Army captain with eight years of unblemished service tested positive on a unit urinalysis for cocaine.

The next thing the captain knew, he was hauled into his battalion commander’s office, relieved of command and read his UCMJ Article 31 rights. Luckily, the captain was smart, invoked his right to remain silent and asked to speak to a lawyer.

This young captain had a family from South America who had come to the U.S. for a visit. One of the gifts his grandmother brought him was bags to make an iced tea called mate de coca.

Could the tea bags have caused this captain to test positive for cocaine? Of course, the command was not buying that story and pushed for a court-martial — until two independent drug testing firms hired by Rinckey pointed to the fact that several ingredients in mate de coca tea bags could cause a urinalysis to read high levels of benzoylecgonine. BZE is the metabolite of cocaine.

Upon receiving the reports, the command agreed to drop all charges against the captain and reinstate him into command.

Many people in the military still believe it is not possible to innocently test positive on a urinalysis. But a urinalysis is not 100 percent accurate, and assorted other issues cause these tests to come back improperly positive and negative.

A few years back, problems at the Defense Department drug screening labs led to many false positives due to incorrect procedures. Ultimately, several employees were fired.

Moreover, expert witnesses from those drug labs acknowledge that cocaine and many other drugs can unknowingly be ingested in a drink or through other means.

What steps should you take if you’re questioned by your commander or first sergeant for coming up positive on a test?

First, immediately ask to speak to an attorney, and don’t make any statements; this is your absolute right under Article 31 of the UCMJ and cannot be used against you. (In my online column, I recently wrote about remaining silent; the column is at http://www.militarytimes.com/forums/forumdisplay.php?f=82).

Next, immediately see a JAG attorney and do not discuss your case with anyone, including your barracks buddies or family. Request that your attorney seek the complete litigation packet from the drug lab to look for any irregularities in the testing process; this packet is usually about 30 pages long.

You should not plead to anything or accept an Article 15 until you have reviewed this packet with defense counsel and discussed your options. In a future column, I’ll talk about the issue of the Article 15 and whether you should accept it, or turn it down and request trial by court-martial.

If you feel the free defense counsel made available by your service is not providing you with the client care and attention you think your case deserves, you have the right to hire civilian counsel who can work with your military counsel over the phone (cheaper) or in person (expensive).

The money you will spend on your civilian counsel will probably be less than what you would lose if you were court-martialed or lost pay under an Article 15 if the positive test results were improper and you are innocent of the allegations.

A final note to service members who may seek VA benefits after leaving service: Depending on what type of discharge you get because of a “hot test,” you could end up being denied VA benefits worth a hundred times what you would have paid for a private counsel, who hopefully could have ensured your discharge qualified you for the benefits.

I’d also point out that symptoms of post-traumatic stress include impaired judgment and drug usage. PTSD is treatable and best caught early to minimize a potential lifetime of trouble. A hot drug test due to PTSD may save you years of trouble if the underlying problem is found and dealt with early.  

Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.