NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

VICTOR L. WADE,

Plaintiff-Appellee

v.

UNITED STATES,

Defendant-Appellant

______________________ 

2016-2263

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:14-cv-00814-TCW, Judge Thomas C. 

Wheeler. 

______________________ 

Decided: October 31, 2017

______________________ 

 WILLIAM CASSARA, William E. Cassara, PC, Evans, 

GA, argued for plaintiff-appellee. 

 DANIEL S. HERZFELD, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for defendant-appellant. Also 

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., STEVEN J. GILLINGHAM; ADAM B. YOST, 

Office of the Judge Advocate General, United States 

Department of the Navy, Washington, DC.
2 WADE v. UNITED STATES

______________________ 

Before PROST, Chief Judge, CLEVENGER and STOLL,

Circuit Judges.

PER CURIAM.

The United States appeals from the Court of Federal 

Claims’ decision reversing the decision of the Board for 

Correction of Naval Records (“Board”) denying Victor 

Wade’s request for record correction and military backpay

after a positive cocaine urinalysis. Wade v. United States, 

126 Fed. Cl. 638, 640–42 (2016). The Court of Federal 

Claims found the Board’s decision arbitrary, capricious, 

an abuse of discretion, and not supported by substantial 

evidence. Id. at 645. Because the Board’s decision was

supported by substantial evidence and was not arbitrary, 

capricious, or contrary to law, we reverse. 

BACKGROUND

Mr. Wade served as a petty officer in the Navy for 

over 18 years without any disciplinary incidents. In 2007, 

Mr. Wade tested positive for cocaine after undergoing a 

random urinalysis. After reviewing the urinalysis test 

result and obtaining expert confirmation that the positive

result was not due to Mr. Wade’s medical prescription, 

the Navy charged Mr. Wade with violating Uniform Code 

of Military Justice (“UCMJ”) Article 112a, 10 U.S.C. 

§ 912a, Wrongful Use of a Controlled Substance. Mr. 

Wade consented to the imposition of a non-judicial proceeding under UCMJ Article 15 (10 U.S.C. § 815(b)).

I. Non-Judicial Proceeding

At his non-judicial hearing, Mr. Wade pled not guilty 

before his commanding officer and elected not to make a 

statement on the charge or the positive urinalysis. Mr. 

Wade’s commanding officer determined that Mr. Wade

had committed the offense after considering, inter alia, 

the urinalysis test result and expert statement validating 
WADE v. UNITED STATES 3

the test result, and imposed a non-judicial punishment, 

which included a reduction in rank, geographic restriction, extra duties, and forfeiture of one-half month’s 

pay for two months. 

Mr. Wade appealed his non-judicial punishment to 

the regional Navy Commander, stating that he felt “the 

maximum punishment” was “not fair and undeserving 

under the circumstances.” J.A. 1111. Although Mr. Wade

did not “dispute the integrity of the Navy Drug Lab,” he 

“persistently [reaffirmed] that [he had] not and will not 

ever use any type of illegal drugs intentionally.” Id. Mr. 

Wade also submitted a letter attesting to his character 

written by his supervisor at a security firm where he had 

taken a second job as a security officer to help support his 

family. The Navy Commander reviewed Mr. Wade’s 

arguments and submitted materials and ultimately 

denied the appeal, finding the punishment awarded 

“within legally permissible limits” and “neither unjust nor 

disproportionate.” J.A. 1106. 

II. The Separation Proceeding

Mr. Wade was subsequently subjected to a mandatory 

administrative separation proceeding, which the Navy 

imposes upon the finding of a positive drug test result 

unless it was caused by administrative error or sanctioned reasons. Mr. Wade had previously acknowledged 

the risk of being subjected to additional administrative 

action when he accepted a non-judicial proceeding in place 

of a formal courts-martial proceeding. J.A. 1101–02 

(“[A]cceptance of nonjudicial punishment does not preclude further administrative action against me. This may 

include being processed for an administrative discharge, 

which could result in an other than honorable discharge.”).

One week before Mr. Wade’s separation board hearing, Mr. Wade’s counsel asked the Navy for permission to 

conduct an independent DNA test of Mr. Wade’s urine 
4 WADE v. UNITED STATES

sample. Because the Navy understood Mr. Wade to be 

contesting the chain of custody for the sample, it confirmed with personnel in the chain of custody that there 

was “no discrepancy with the collection and transportation of the urine sample” to the testing facility, J.A. 1244–

46, and denied Mr. Wade’s request. 

At his separation hearing, the separation board considered evidence offered by the Navy, including the positive urinalysis test, testimony from witnesses regarding 

the chain of custody of the test, and an expert witness 

who explained the positive test result. Mr. Wade’s counsel cross-examined the witnesses and did not object to the 

Navy’s denial of Mr. Wade’s request for an independent 

DNA test of the urine sample. 

The separation board also heard from character witnesses, and from Mr. Wade himself, who testified regarding his family, children, and his second job at the security 

firm. During the hearing, Mr. Wade advanced an innocent ingestion theory. He suggested that that he may 

have unknowingly ingested cocaine because his drink 

might have been spiked in retaliation for his imposition of 

disciplinary actions on unruly individuals while working 

as a security guard. Mr. Wade testified that the individuals knew that Mr. Wade was in the military and presumably knew the consequences of a positive drug test. 

During the hearing, the separation board also elicited 

Mr. Wade’s acknowledgement that he lied twice during 

his appeal process. First, Mr. Wade lied to his supervisor 

at the security firm about the reason that he was eliciting 

a character reference letter. Instead of telling his supervisor about the drug charge, Mr. Wade told her that he 

needed the reference because “he had been involved in an 

incident about being deployed overseas and it involved an 

officer.” J.A. 1055. At the hearing, Mr. Wade testified

that “I felt it was in my best interest not to tell her” the 

truth. J.A. 1068. Second, Mr. Wade lied about never 
WADE v. UNITED STATES 5

having used illegal drugs even though he had previously

admitted to using marijuana one time prior to service, as 

reflected in his pre-enlistment file. 

After considering all of the evidence and deliberating 

for thirty-three minutes, the separation board found that 

the Navy showed, by a preponderance of the evidence, 

that Mr. Wade had committed the offense. The separation board recommended that, considering his prior 

commendable service, Mr. Wade receive a General (Under 

Honorable Conditions) Discharge from the Navy. J.A. 

1071–72, 1235. 

Mr. Wade’s commanding officer denied Mr. Wade’s 

challenge to the separation board’s recommendation and 

ultimately concurred with the separation board’s recommendation to separate Mr. Wade. The Chief of Naval 

Personnel concurred with the recommendation of the 

separation board and Mr. Wade’s commanding officer, and 

ordered Mr. Wade’s separation. The Navy separated Mr. 

Wade after 19 years, 6 months, and 22 days on active 

duty. 

III. Board for Correction of Naval Records

Mr. Wade appealed his non-judicial punishment and 

discharge to the Board three times. The Board denied 

each of Mr. Wade’s appeals after determining that it was 

“unable to find any evidence that the [non-judicial proceeding] was not conducted in compliance with Part V of 

the MCM,”1 and that “the [commanding officer] properly 

considered the positive urinalysis in making his decision 

that [Mr. Wade] wrongfully used cocaine.” J.A. 1006–07. 

The Board held that it “was not persuaded that the [commanding officer or separation board] committed any error 

or injustice in determining that [Mr. Wade] wrongfully 

 

1 “MCM” refers to the Manual for Courts-Martial, 

which interprets the UCMJ. 
6 WADE v. UNITED STATES

used cocaine.” J.A. 1006. Regarding Mr. Wade’s “additional arguments why the positive urinalysis should be 

discounted, e.g., good military character, [expert witness’s] opinions, innocent ingestion, etc.,” the Board 

determined that the “[commanding officer]’s and [the 

separation board’s] findings were not in error considering 

the ‘preponderance of evidence burden of proof imposed on 

them when making a determination of misconduct.” Id. 

The Board further determined that “it was not unreasonable for the [commanding officer] and [the separation 

board] to discount [Mr. Wade’s] evidence and conclude 

misconduct occurred based simply on the positive urinalysis.” Id. 

IV. Court of Federal Claims’ Decision 

Mr. Wade filed a complaint with the Court of Federal 

Claims requesting, among other things, reinstatement, 

correction of his records, and backpay. The court first 

remanded the case to the Board for consideration of

materials that the Board might not have reviewed. After 

the Board again affirmed the separation board’s determination, the trial court granted Mr. Wade’s motion for 

judgment on the administrative record, and entered 

judgment for Mr. Wade. 

Specifically, the trial court held that the urinalysis 

test results could not establish knowing, wrongful use: “A 

low positive reading on a first-time offense, with no evidence of how the substance was ingested, does not establish a ‘wrongful use,’ and should not warrant the severe 

punishment of discharge from the military.” Wade, 126 

Fed. Cl. at 644. In arriving at its conclusion, the trial 

court considered evidence supporting Mr. Wade’s good 

character and commendable service record, alleged procedural concerns including the Navy’s denial of Mr. Wade’s 

request for an independent DNA test on his urinalysis 

sample, the use of a summary transcript from the separation board proceedings in the record, and the length of the 
WADE v. UNITED STATES 7

separation panel’s deliberations leading up to their recommendation. Ultimately, the trial court concluded that 

“the Navy’s case against Mr. Wade fails because the Navy 

did not prove that he knowingly ingested cocaine,” and 

that “[w]ithout a knowing consumption of a controlled 

substance, the ingestion could not have been wrongful.” 

Wade, 126 Fed. Cl. at 644. 

The United States appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(3). 

DISCUSSION

UCMJ Article 15 authorizes commanding officers to 

conduct non-judicial proceedings as “an administrative 

method of dealing with the most minor offenses.” Middendorf v. Henry, 425 U.S. 25, 31–32 (1976). While these 

proceedings offer less severe punishments, they provide 

fewer legal protections for the accused than more formal 

court-martial proceedings. Dumas v. United States, 620 

F.2d 247, 252–53 (Ct. Cl. 1980). For example, guilt may 

be found by a preponderance of the evidence in a nonjudicial proceeding, rather than “beyond a reasonable 

doubt” as in a courts-martial proceeding. See United 

States v. Reveles, 660 F.3d 1138, 1141 (9th Cir. 2011), 

citing U.S. Dep’t of Navy, Manual of the Judge Advocate

General (JAGMAN), JAG INSTRUCTION 5800.7F, I-18-

19 (June 26, 2012), http://www.jag.navy.mil/library/

instructions/JAGMAN2012.pdf. Guilt in a separation 

proceeding is also proven by a preponderance of the 

evidence. See MILPERSMAN 1910-518 (Sep. 20, 2011), 

http://www.public.navy.mil/bupers-npc/reference/

milpersman/1000/1900Separation/Documents/1910-

518.pdf. 

On review of an Application for Correction of Naval 

Records, the Board for Correction of Naval Records

(“Board”) will not disturb the separations board’s findings 

and conclusions unless the applicant demonstrates the 

existence of probable material error or injustice. 32 
8 WADE v. UNITED STATES

C.F.R. § 723.3(e)(2). The Court of Federal Claims must 

affirm the Board’s decision denying correction of Naval 

records “unless it is arbitrary, capricious, contrary to law, 

or unsupported by substantial evidence.” Barnes v. 

United States, 473 F.3d 1356, 1361 (Fed. Cir. 2007) (internal quotations omitted); see also Metz v. United States, 

466 F.3d 991, 998 (Fed. Cir. 2006). We review a decision 

of the Court of Federal Claims granting or denying a 

motion for judgment on the administrative record de novo, 

applying the same standard to the Board’s decision as was 

applied by the Court of Federal Claims. See Barnes v. 

United States, 473 F.3d 1356, 1361 (Fed. Cir. 2007). 

The arbitrary and capricious standard of review does 

not allow a reviewing court to reweigh the evidence, but 

rather requires it to determine whether the conclusion 

being reviewed is supported by substantial evidence. 

Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 

1983). Thus, even if we would be inclined to find the facts 

differently in the first instance, we must accept the 

Board’s view of the facts as long as the record contains 

“such relevant evidence as a reasonable mind might 

accept as adequate to support” the Board’s conclusion. 

Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal 

quotation omitted); see also Heisig, 719 F.2d at 1156 

(“[C]ourts cannot substitute their judgment for that of the 

military departments when reasonable minds could reach 

differing conclusions on the same evidence.”). Applying 

this standard of review to the record and the Board’s 

determination in this case, we find the Board’s conclusion 

to be supported by substantial evidence and not arbitrary, 

capricious, or contrary to law. 

I.

The MCM explains that Mr. Wade’s charge contains 

two elements: (a) the use of a controlled substance and (b) 

that the use was wrongful. MCM, Pt. IV, ¶ 37b(2)(a)–(b). 

Regarding element (a), the MCM explains that the use 
WADE v. UNITED STATES 9

must be knowing and that “[k]nowledge of the presence of 

the controlled substance may be inferred from the presence of the controlled substance in the accused’s body or 

from other circumstantial evidence. This permissive 

inference may be legally sufficient to satisfy the government’s burden of proof as to knowledge.” MCM, Pt. IV, 

¶ 37c(10). Regarding element (b), the MCM provides that 

the use is wrongful “if it is without legal justification or 

authorization,” and that such wrongfulness may be inferred “in the absence of evidence to the contrary.” MCM, 

Pt. IV, ¶ 37c(5); see also Bozin v. Sec’y of Navy, 657 F. 

Supp. 1463, 1467 (D.D.C. 1987) (“The Manual . . . allows a 

‘permissive inference’ of wrongfulness as flowing from 

proof of drug use.”). 

Military courts have repeatedly held that a positive 

urinalysis accompanied by expert testimony interpreting 

the urinalysis is sufficient to establish a permissive 

inference of wrongful use. See, e.g., United States v. 

Green, 55 M.J. 76, 81 (C.A.A.F. 2001) (noting that, under 

the Military Rules of Evidence, a urinalysis and expert 

testimony “provide[] a legally sufficient basis upon which 

to draw the permissive inference of knowing, wrongful 

use, without testimony on the merits concerning physiological effects”); United States v. Harper, 22 M.J. 157, 159 

(C.M.A. 1986) (“We hold that these laboratory results of 

urinalysis coupled with expert testimony explaining them 

constituted sufficient evidence to support the military 

judge’s finding beyond a reasonable doubt that appellant 

used [marijuana] on three occasions.”).

Here, substantial evidence supports the Board’s determination that Mr. Wade did not demonstrate probable 

material error or injustice in the separation board’s 

finding of knowing, wrongful use of cocaine. For example, 

the Navy provided witnesses who testified that they 

personally observed Mr. Wade on the day of his urine 

collection, that the collection and testing was conducted in 

accordance with strict Navy protocols to prevent sample 
10 WADE v. UNITED STATES

tampering, and that the collection cup, personally initialed by Mr. Wade before the collection of the sample, 

never left the sight of the officers until the sample was 

collected, sealed, and prepared for mailing. A technician 

from the laboratory that analyzed the urine sample 

testified as to the extensive safeguards used to rule out

errors resulting from damage, tampering, and other 

potential problems. The government also provided testimony from a technical expert, who discussed the Navy’s 

testing procedures, as well as the implications and reliability of the test result. Mr. Wade did not dispute any of 

this testimony or provide any reason to question the 

accuracy of the test result. 

The evidence presented by the Navy on the urinalysis 

was sufficient to support a permissive inference of knowing, wrongful use, even in the face of contrary evidence 

offered by Mr. Wade. “Standing alone, a positive urinalysis may be legally sufficient to sustain a conviction for 

wrongful use of a controlled substance, even in the face of 

contrary evidence offered by the defense.” United States 

v. Hobbs, 62 M.J. 556, 558–59 (A.F. Ct. Crim. App. 2005)

(citing United States v. Ford, 23 M.J. 331, 332 (C.M.A.

1987)); United States v. Green, 55 M.J. 76, 81 (C.A.A.F. 

2001) (“A urinalysis properly admitted under the standards applicable to scientific evidence, when accompanied 

by expert testimony providing the interpretation . . . 

provides a legally sufficient basis upon which to draw the 

permissive inference of knowing, wrongful use.”) Although Mr. Wade presented a theory of innocent ingestion, 

“it is the responsibility of the factfinder to determine what 

weight should be given to such evidence.” Green, 55 M.J. 

at 81. Here, the factfinder was free to discredit Mr. 

Wade’s innocent ingestion theory, given the positive test 

result and the two instances of Mr. Wade’s untruthfulness 

that were revealed during the course of the proceeding. 

However benign the circumstances were of Mr. Wade’s 

untruthfulness, the factfinders were entitled to make 
WADE v. UNITED STATES 11

credibility findings. And while Mr. Wade’s strong evidence of good character and prior commendable service 

may suggest that Mr. Wade was not likely to knowingly 

ingest cocaine, this evidence does not undermine the 

substantial evidence supporting the Board’s determination that Mr. Wade did not demonstrate probable material error or injustice in the separation board’s finding of 

knowing, wrongful use of cocaine. For these reasons, we 

cannot agree with the trial court that the Board’s determination was arbitrary, capricious, contrary to law, or 

unsupported by substantial evidence. 

Our conclusion is not altered by the trial court’s rationale in holding otherwise. For example, the trial court 

determined that based on expert testimony, Mr. Wade’s 

“relatively low positive reading . . . likely does not reflect 

the actions of someone trying to experience a drug’s 

euphoric effects, but rather is more in keeping with a 

person’s unknowing ingestion of a small amount of cocaine.” Wade, 126 Fed. Cl. at 644. But the expert also 

testified that Mr. Wade’s urinalysis result “doesn’t rule 

out smoking crack cocaine three or four days before the 

urinalysis collection.” J.A. 1044. In other words, the 

urinalysis results allowed for two possible factual conclusions. Even if we would find differently were we to decide 

facts in the first instance, our role as a reviewing court 

does not allow us to reweigh the evidence. We are likewise not convinced that the trial court’s “procedural 

concerns” about the Navy’s denial of Mr. Wade’s request 

for an independent DNA test on his urinalysis sample, the 

use of a summary transcript from the separation board 

proceedings in the record, and the length of the separation panel’s deliberations amount to legal error requiring 

reversal. 

CONCLUSION

Because we find that the Board’s decision was not arbitrary, capricious, contrary to law, or unsupported by 
12 WADE v. UNITED STATES

substantial evidence, we reverse the trial court’s grant of 

Mr. Wade’s cross-motion for judgment on the administrative record, and grant the United States’ motion for 

judgment on the administrative record. 

REVERSED

COSTS

No Costs.