Supersedes AFI , 1 January Pages: Distribution: F. This Air Force Instruction (AFI) establishes guidance for the Air Force. Information derived from AFPAMV1 and Air Force Instruction Members of the Air Force are held to the highest standards of. Per AFI , substance abuse education is mandated for: ▫ Member arriving at first permanent duty assignment. ▫ Every new assignment.
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CourtListener is a project of Free Law Projecta federally-recognized c 3 non-profit. We rely on donations for our financial security. Your Notes edit none. Authorities 11 This opinion cites: Bessemer City, U. United States, U. Please aafi our work with a donation. Appellate Counsel for the Appellee: Schrama argued ; Lieutenant Colonel Joy L.
Appellate Counsel for qfi United States: Steer argued ; Colonel Katherine E. Oler; and Gerald R. This evidence included statements made by 441-21 to his first sergeant, statements later made at an off-base hospital which were overheard by another noncommissioned officer, and the results of a subsequent probable cause urinalysis. Procedural Background Appellee is charged with three specifications alleging the wrongful zfi of marijuana, heroin, and lorazepam a Ai IV controlled substance in violation of Article a, UCMJ, 10 U.
Trial defense counsel filed a pretrial motion to suppress all statements of Appellee and the results of his positive urinalysis. The special court-martial convened on 21 April After the presentation of evidence and argument by counsel, the military judge granted the defense motion on 22 44-211issuing a five-page ruling. She concluded Appellee was entitled to the AFI limited protection for certain disclosures made by Airmen who self-identify their drug abuse and the evidence derived from such disclosures.
She then suppressed statements Appellee made to his first sergeant, statements he made in the emergency room within the hearing of another noncommissioned officer, and the results of a urinalysis procured through a search authorization which relied on those statements. This ruling affected all three specifications in the case. The Government filed a timely notice of appeal on 24 April The court reporter provided a copy of the transcript of the proceedings to the military judge on 29 April On 1 May 4-121, the same day she authenticated the record of proceedings, the military judge issued a 6-page supplemental ruling that incorporated the entirety of her original ruling and added several findings of fact and conclusions of law.
Her ultimate conclusion was unchanged.
ADAPT program helps Airmen overcome alcohol, drug abuse
Based on this, the Government contends the supplemental ruling is invalid and should be struck from the record. We disagreed and denied the motion to strike. At oral argument, the Government requested we reconsider 1 Rule 21 of the Joint Court of Criminal Appeals Rules of Practice and Procedure requires trial counsel to forward the appeal and record of trial within 20 days. The military judge authenticated the record of proceedings seven days after the notice of appeal was filed and two days after she received the transcript.
We need not address the authority of a military judge to reconsider a decision and any limitations imposed by dilatory authentication. Sean Murphy, a student at the George Mason University School of Law, for his assistance with the bench memorandum on this case. We have reconsidered our ruling on the motion and reach the same conclusion. Our reasoning is set forth below. Because this issue is before us pursuant to a Government appeal, we may act only with respect to matters of law.
Article 62 bUCMJ. Supplemental Findings of Fact It is clear that, prior to authentication of a record of trial, a military judge may sua sponte reconsider any ruling, except the equivalent of a finding of not guilty. Rule for Courts-Martial R. The Government contends that the military judge does not possess this reconsideration authority, as part of her authentication of a record of proceedings prepared for use in a government appeal under Article 62, UCMJ, when that authentication occurs after the Government has filed its notice of appeal.
The issuance of her supplemental ruling does not change the legal effect. Second, the rationale underlying the authority of military judges to reconsider and reverse their rulings prior to appellate review applies equally to rulings the Government elects to appeal under Article 62, UCMJ. See United States v. Third, this approach is consistent with that taken by federal appellate courts.
A consideration in this analysis is whether judicial efficiency is improved.
In evaluating whether to consider supplemental rulings issued by trial judges after the filing of the notice of appeal, appellate courts generally decline to apply a bright-line rule and instead look to the timing and nature of the supplemental ruling and whether its consideration would prejudice the appealing party. In determining how to proceed here, we employ ordinary ari of statutory construction to interpret the Rules for Courts-Martial, to include reading them holistically.
Reading the relevant provisions together, in conjunction with the interpretation of similar federal fai cases, we conclude that the military trial judge may sua sponte reconsider a ruling or order after notice wfi an Article 62, UCMJ, appeal and before the record of proceedings is authenticated.
We conclude the military judge would have been authorized to reconsider her ruling and, afj, is permitted to issue a supplemental ruling. Thus, her supplemental 5 Misc.
Permitting military judges to sua sponte reconsider rulings that are being appealed under Article 62, UCMJ, and to issue revised opinions prior to authentication makes practical sense.
The interests of justice are best served when the trial judge makes sufficiently detailed and comprehensive findings of fact and conclusions wfi law. There is no prohibition for such a process; and it makes little sense to prohibit a military trial judge from issuing revised rulings and orders that may correct errors, provide more detailed findings of facts, better reasoned conclusions of law, or even incorporate new appellate decisions issued after the initial decision.
We also see no prejudice to the Government from these events given the timing of the supplemental filing. Both parties have been provided sufficient opportunity to respond to this supplemental ruling and the timing of the supplemental ruling was such that it would not unnecessarily delay appellate review. We doubt the Government would object if the military judge aafi reconsidered her ruling and ruled in favor of the Government.
We conclude the military judge is expressly authorized to sua sponte reconsider any ruling prior to her timely authentication of the record of proceedings.
In qfi of this, we will consider her supplemental ruling as setting forth the findings of fact and conclusions of law.
ADAPT program helps Airmen overcome alcohol, drug abuse > Joint Base San Antonio > News
On nine prior occasions, he had provided random urinalysis samples. TSgt 44-21 then noted the date and time she notified the supervisor on a pre-signed form letter.
The supervisor told Appellee to report to the orderly room; however neither the supervisor nor TSgt WH were allowed to tell him exactly why he needed to report. Appellee did not report to the orderly room that day and did not receive this form. Appellee was visibly upset and said something to MSgt CJ indicating he wanted to talk about something serious. By this time, Appellee was bawling and rocking back and forth.
After arriving at the mental health clinic, Capt AD told Appellee that he might want to obtain the services of the area defense counsel ADC.
Appellee chose this option before making any admissions to Capt AD. Appellee was pacing and said he was mad at himself for damaging his career and that he tried to quit heroin but could not.
Appellee did not make the statement directly to SSgt JE but in his presence. Appellee 44121 later admitted to the hospital. The information in quotes is verbatim from her ruling. He used this information for an affidavit to support a search authorization. On 4 Decemberthe search authorization was used to obtain a urine sample from the still hospitalized Appellee.
Subsequent testing revealed the urine contained the metabolites for heroin, marijuana, and lorazepam. All of these questions are answered pursuant to the standard of review in this case. Are the Findings of Fact Clearly Erroneous? The instruction specifically states 44-211 a statement is not voluntary, and therefore the limited protection does not apply when the member has previously been ordered to give a urine sample as part of the drug-testing program in which the results are still pending or have been returned as positive.
Whether or not we agree, that is not the standard of review.
Ordered to Give a Urine Sample The military judge found: In this case, [Appellee] never received an order to provide [a urine sample as part of the drug-testing program].
In addition to finding that Appellee never received an order to provide a urine sample as part of the drug testing program, the military judge determined that the issue was not whether Appellee should have known that an order was forthcoming or when the commander or his designee signed the 444-121, but rather whether Appellee received the order.
This is a mixed question of law and fact. When an appeal presents a mixed question of law and fact, as this one does, this Court will find that a military judge abused her discretion if her findings of fact are clearly erroneous or her conclusions of law are aif. A finding by this Court that a military judge abused her discretion requires more than a mere difference of opinion.
The question of law is: What constitutes an order to give a urine sample as part of the drug-testing program? In order to answer this question we must interpret both the AFI which creates the limited protection and the AFI which governs the random urinalysis program.
We hold that such an order constitutes the entire process of notification set out in the instruction governing the urinalysis program, including presentment of the notification letter to the member. We agree that the regulatory law requires written notification by the commander, prohibits telephone notification by the trusted agent, and requires the member to be presented with the written letter.
Distinguishing between self-identification before notification of an order and after notification of an order recognizes the value of personal acceptance of responsibility as it relates to both treatment and the appropriateness of administrative or criminal consequences.
Once an Airman is notified of an order, any future disclosures are no longer protected under AFI AFIwhich sets out the Air Force drug abuse prevention and treatment program, encourages members to seek assistance themselves. Taking personal responsibility affects all those affi outcomes. Such initiative is also important in weighing the risk of future misconduct and determining an appropriate command response to drug use.
Right up the point where Airmen become legally obligated to submit a sample, they retain the opportunity to self-identify and take 44-21 responsibility for their own conduct.
Once notified of the order, they no longer have a choice and must accept whatever consequences come as a result of the testing. The Government suggests that an order to provide a sample existed much earlier in the process.
441-21 oral argument, we questioned Government appellate counsel on when 10 Misc. The Government position that the computer-generated selection creates a valid military order is not persuasive. We do not believe we have reached a point in time when a computer program has the authority to issue orders without intervening action by a human member of the armed forces. We agree with the Government that Appellee 441-21 an order to report to the orderly room.
To follow this logic would negate the regulatory prohibition on telephone notification and obviate the regulatory requirement for written notification from the commander. The military judge did not abuse 44-21 discretion when she found that the statements were protected.