Written by MAJ (ret.) Eric B. Smith, DO, MPH
On June 21, 2018 The Military Times published an article entitled, “Troop Drug Dismissals Suspended Due to Lab Contamination Concerns.” The concern is over possible cross contamination issues with urine drug samples that were jostled during transit when shipped to the Air Force Drug Testing Laboratory. The halt in troop dismissals was “an abundance of caution,” according to the Deputy Director of Defense Press Operations, Tom Crosson. It was only two days long and military officials have since resumed prosecutions.
Embedded in this article is a link to another article in the Navy Times published on May 12, 2017, entitled “Navy Finds Fault in Drug Testing of Sailors at Great Lakes, Investigation Underway.” The issue at hand here was that the test for methamphetamine and amphetamines could produce a false positive result.
Both articles imply that the risk of a service member being prosecuted and/or separated due to a false positive result are highly unlikely. They also suggest that the government always errs on the side of caution, so that innocent people don’t get falsely accused. Neither article mentions potential errors made by humans at either the collection or the receiving ends of the process.
Let me tell you what it is like to be wrongfully convicted over a false positive urine drug screen. I am the case that no one believes could happen – until it does. It is my duty to speak out.
On September 27, 2012, contrary to my plea of innocent, I was wrongfully convicted of a violation of one specification of article 112(a) in the Uniform Code of Military Justice (UCMJ), – “wrongful use of cocaine.” I was sentenced to two years confinement in military prison, and forfeiture of all pay and allowances. I have never used cocaine in my life. I knew there must be some mistake but was not believed.
As soon as I was accused, I asked my military defense counsel to have my urine drug screen retested. He gave my request cursory attention and embedded it into a discovery request. The military judge denied this request. I also asked to have a forensic lie detector test administered but my military defense counsel only showed slight interest in that idea. He said, “we’ll get to that.” We never did.
I did, however, obtain a hair follicle test, that was collected at the optimal time of detection for cocaine, which is 5 weeks. It was negative down to the level of detection. However, I unexpectedly discovered from my military defense counsel on the day of trial that the hair follicle results would not be admitted into the court proceedings.
Imagine the outrage and the sense of helplessness I felt at that moment. I had prepared for the trial with the hair follicle test being a cornerstone of my defense. I had a qualified forensic expert prepared to discuss the test in open court. The panel never heard from him, because the evidence was inadmissible.
When the jury panel read the verdict, I turned to check on my wife, Gulnora. I will never forget the utter look of horror on her face. She is an immigrant from Uzbekistan, a country known for systemic corruption and human rights abuses. She muttered to me, “Oh my god, dear, if the US military is like this – why did I come here?”
On Oct 12, 2012, I was wrongfully confined in a military prison. While in prison I experienced and witnessed human rights abuses, like capricious use of solitary confinement and deliberate sleep deprivation. I also experienced and witnessed medical abuse, like misdiagnosis, the withholding of evaluation and treatment for unreasonable durations, and collaboration between medical staff and the prison guards in the derision of and mistreatment of prisoners.
Fortunately, while I was in prison, my family retained a civilian attorney specializing in military law. Then my fate began to change. I should mention now, I was an officer and a physician prior to my prisoner status. Most military prisoners don’t have either these educational, familial or financial resources to draw from.
On May 15, 2013 I was granted clemency by the General Court Martial Convening Authority (GCMCA). My new civilian counsel was highly competent and immediately obtained a forensic lie detector test. The results were – no deception. Nevertheless, the GCMCA wasn’t moved and disregarded the polygraph. I also asked the GCMCA to allow me to retest my urine. He said no.
I then retained another civilian attorney, reputed to be the best in the business, Mr. William Cassara. We petitioned the Army Criminal Court of Appeals (ACCA) to allow me to retest the urine. ACCA overruled the GCMCA without pause and said that I could retest the urine. One of the tests we conducted was for the DNA in the urine. It produced an unexpected result. There were two MAJOR donors of DNA at a 60:40 distribution – an unknown male and me. I informed my leadership at Madigan Army Medical Center (MAMC) immediately. I thought this would warrant an investigation. They refused to investigate.
On July 17, 2015 ACCA set aside my conviction on the basis of ineffective assistance of counsel, because he failed to get the hair follicle test admitted. This outcome is extremely rare. But to my dismay, my troubles persisted.
The US Army had the option to retry me criminally but declined and dropped the charges. Then the command at Madigan Army Medical Center (MAMC) doubled down and issued me a General Officer Memorandum of Reprimand (GOMOR), which triggered a referral to a Board of Inquiry (BOI). The BOI agreed with me that the urine sample was contaminated and forensically invalid. The BOI also decided to retain me on active duty and allowed me to retire honorably. After my retirement, the Department of the Army Suitability Evaluation Board (DASEB) rescinded the GOMOR stating that it was “untrue and unjust.” Happy ending, right? No. Apparently, the facts were obvious to everyone, but the US Army Medical Command (MEDCOM).
In parallel these adverse legal and administrative actions, MAMC and MEDCOM took adverse professional action against me. In June 2013, they revoked my clinical privileges to practice medicine in the US Army. That revocation still stands to this day. MEDCOM, for the moment, refuses to reinstate my clinical privileges.
MEDCOM currently maintains a report with the National Practitioner Databank (NPDB) under the Department of Health and Human Services (DHHS) and continues to allege that I used cocaine, after the charges have been dropped and the BOI exonerated me. The NPDB report is unequivocally false, MEDCOM knows it yet continues to maintain the report.
This report could impact my ability to find future employment in certain healthcare systems and could result in significant job discrimination. So, now my next option is to seek relief from another body, the Army Board for Correction of Military Records (ABCMR). This is the gauntlet that a falsely accused service member must walk through to obtain justice. It takes years, patience, fortitude and oh, – money.
The articles in the Military Times and the Navy Times, underscore the reality that no test is infallible.
My test was incorrect. I spent 213 days in prison and I have been setback approximately 5-10 years professionally and financially, because MEDCOM believes these tests are infallible. This could happen to any service member. Military urine drug screens are not infallible.
About the author: MAJ (ret.) Eric B. Smith, DO, MPH is a physician board certified in Public Health and General Preventive Medicine. He was in a resident in the Occupational and Environmental Medicine Residency at Madigan Army Medical Center when he was falsely accused. He is currently repeating that training (7 years after the fact) at a civilian institution.