Another Military Drug Lab Revelation

This week there was another revelation about military drug labs and military drug testing that undermines the reliability of the system.  I have previously spoken about the employee tampering at the Norfolk Navy Drug Testing Laboratory (NDSL) before it was shut, the false positives at NDSL Great Lakes and San Diego (before it was shut down), Tripler Forensic Drug Testing Labratory (FDTL), and the Brookes FDTL.  The General Counsel for the Department of Defense released a Brady notice this week with two studies (one Navy, one Air Force) that determined that leakage during shipment of a positive sample can cause other samples in the box to test positive.  In other words, even if bottles are closed tightly in the box, there can be cross-contamination based on the loose positive urine in the box.

As background, once the drug testing is completed, the bottles should already be in an open box that holds twelve bottles (called a batch).  The box is then taped closed and wrapped in a garbage bag and placed in a second box.  In the study, the labs placed positive samples that were lightly tightened in batches of clean urine and shipped them to and from each other.  When the labs received the samples boxes back, they opened and tested the samples.

By instruction, when a box is received and there is leakage, the lab technician is supposed to mark a discrepancy code for all bottles in the batch.  This discrepancy code should then be reported in the results portal as a two letter code.  The study was prompted because the Air Force on one end and the Navy and Army on the other end were handling batches with leakage differently.  The Army and Navy were testing the samples and reporting the discrepancy code “BZ” for bottle discrepancy – tested.  The Air Force on the other hand was using the code “BY” or “PY” for bottle discrepancy – not tested and package discrepancy – tested, respectively.  I imagine as a result of this study the Navy and Army labs will no longer be testing any samples in a batch that arrives with leakage.

So is relief available for those who have already been separated based on a positive drug test?  It depends.  First, the potential issue only applies in cases where the drug testing was conducted by an Army or Navy laboratory.  Second, the sample must have had a BZ discrepancy code or some other indication there was leakage in the batch.  Third, I think there has to be at least one other sample in the batch that either was not tested due to leakage or tested positive for the same drug so as to raise the possibility of cross-contamination. And, finally, the service member must have maintained his or her innocence.

A member has 15 years to file for a discharge upgrade with the Discharge Review Board from the date of discharge and 3 years to file an application with the Board of Corrections from the date of discovery of the injustice or error.  The member has the burden of producing evidence and burden of demonstrating the discharge was improper or an injustice.  With that in mind, a comprehensive application would include all of the drug lab documentation illustrating leakage and a likelihood of cross-contamination.

Attorney Patrick Korody has practiced military law and UCMJ defense for close to 15 years.  He spend a decade on active duty as a Navy JAG where he specialized in military justice.  His offices are located in Jacksonville, Fl and he handles military law cases worldwide.

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