*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10995

Summary Calendar

_____________________

AMY E. BELMAGGIO,

Plaintiff-Appellant,

versus

JOHN DALTON, Secretary of the Navy;

DANIEL T. OLIVER, Vice Admiral, Chief

of Naval Personnel; D. A. LEWELLING,

Captain, Commanding Officer, Naval Air

Station/Joint Reserve Base; SUSAN RAMSKILL,

Lieutenant Commander, Officer in Charge

of Personnel Support Detachment,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court 

for the Northern District of Texas

(4:96-CV-919-A)

_______________________________________________________

September 16, 1998

Before REAVLEY, KING and DAVIS, Circuit Judges.

REAVLEY, Circuit Judge:*

Former Air Traffic Controllman Second Class Amy E. Belmaggio

sued the Navy Secretary and three naval officers in their

official capacities, alleging that the Navy violated her

constitutional and regulatory rights when it administratively
2

separated her from the Navy for cocaine use and that the Board

for Correction of Naval Records (BCNR) decision denying her

relief was arbitrary and capricious. The district court granted

summary judgment in favor of the defendants. For the reasons

discussed below, we affirm.

BACKGROUND

On April 30, 1996, Belmaggio underwent a urinalysis test

which later tested positive for cocaine. She was charged with

violation of the Uniform Code of Military Justice (UCMJ), Article

112(a), for use of a controlled substance. Belmaggio refused

non-judicial punishment under 10 U.S.C. § 815 and demanded a

trial by court-martial. Charges were referred to a Special

Court-Martial on July 16, 1996, and Belmaggio was arraigned

pursuant to 10 U.S.C. § 839(a) on August 20. On August 25,

Belmaggio’s counsel served a notice of intent to file a motion to

suppress the urinalysis evidence on the military judge and trial

counsel. On August 28, the convening authority dismissed the

charges “without prejudice.” The matter was referred to an

administrative discharge hearing on August 29, 1996, to be heard

by an Administrative Discharge Board (ADB).

The administrative board found that misconduct had occurred

and recommended that Belmaggio be discharged with an other than

honorable discharge. Belmaggio filed a letter of deficiency and

requested a review by the Bureau of Naval Personnel and a de novo
 

1Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir.

1997).

 

2Ferrell v. Secretary of Defense, 662 F.2d 1179, 1181 (5th

Cir. 1981).

3

review by a flag officer. The Bureau of Personnel, without

granting the flag officer review, sustained the recommendations

of the board. 

Belmaggio then filed this action in district court to

prevent her discharge from the U.S. Naval Reserve. The district

court temporarily enjoined the defendants from discharging

Belmaggio until the Board of Correction of Naval Records (BCNR)

heard her case. The BCNR refused Belmaggio’s request for relief. 

After further proceedings, the district court entered summary

judgment in favor of the defendants.

DISCUSSION

1. Standard of review

This court reviews a grant of summary judgment by the

district court de novo.

1 In reviewing the decision of a military

correction board, the court will uphold them unless they are

arbitrary, capricious, in bad faith, unsupported by substantial

evidence or contrary to a law, regulation or mandatory published

procedure of a substantial nature to prejudice the plaintiff.2

2. The timing of the summary judgment
4

Belmaggio argues that the district court erred by granting

summary judgment before she filed her renewed cross-motion for

summary judgment and memorandum in opposition to the defendants’

renewed motion to dismiss and for summary judgment.

On April 28, the district court ordered defendants to file a

motion to dismiss, which they did on May 27, 1997. Belmaggio

filed a cross-motion for summary judgment on June 9. On June 23,

the district court entered a final judgment dismissing the

action. The district court sua sponte vacated this judgment on

June 26. The defendants filed their response to Belmaggio’s

cross-motion for summary judgment on June 30. On July 10, the

court ordered Belmaggio to file an amended complaint and directed

both sides to brief the confrontation clause issues. Belmaggio

filed an amended complaint on July 22. Both parties then filed

briefs on the confrontation clause issue. On August 7, the

defendants filed their renewed motion to dismiss or in the

alternative for summary judgment. The district court denied the

motion to dismiss and granted the motion for summary judgment on

August 10. The final judgment was filed August 12, two days

before the court received and filed Belmaggio’s renewed crossmotion for summary judgment.

Under Federal Rule of Civil Procedure 56(c), “[t]he motion

[for summary judgment] shall be served at least 10 days before

the time fixed for the hearing.”

As a general rule, a district court may not

sua sponte grant summary judgment on a claim

without giving the losing party ten days’

notice and an opportunity to present new
 

3United States v. Grayson, 879 F.2d 620, 625 (9th Cir. 1989)

(citations omitted).

 

4Nowlin v. Resolution Trust Corp., 33 F.3d 498, 504 (5th

Cir. 1994).

 

5Id. at 505. 

 

6Reviewing the record, Belmaggio’s renewed motion opposing

defendants’ renewed motion for summary judgment was almost

identical to her first motion. The few differences do not create

an issue that would prevent a grant of summary judgment. For

5

evidence as required by Federal Rules of

Civil Procedure 56(c). There is an exception

to this rule, however: A district court may

grant summary judgment without notice if the

losing party has had a “full and fair

opportunity to ventilate the issues involved

in the motion.”3

This court has held that the ten day notice provision of 56© is

to be strictly enforced.4 If the nonmovant does not make a

showing of evidence that creates a genuine issue of material

fact, however, lack of notice is deemed harmless error.5

In this case, any error was harmless. The defendants’

renewed motion raised effectively the same arguments as the

motion filed approximately nine weeks earlier. The issues in

dispute remained constant at the lower court level, before and

after Belmaggio submitted her amended complaint. Thus, even

though Belmaggio was not granted ten days to respond to the

renewed motion for summary judgment, she had a fair opportunity

to respond to the arguments. Belmaggio has not articulated any

specifics as to what evidence or argument she might have raised

that would have prevented summary judgment if she had been

granted additional time.6 
example, in her second motion, Belmaggio includes an argument

based on Petty v. Moriarty, 43 C.M.R. 278 (U.S.C.M.A. 1971). 

Petty is irrelevant, because it addressed the issue of whether

charges could be withdrawn and then sent to a second courtmartial, not an administrative board as is the case here.

6

3. Removal of case from court-martial proceedings

Belmaggio’s commanding officer at the time of the

urinalysis, Captain Cannon, originally decided to dispose of the

issue through nonjudicial punishment. Pursuant to Article 15,

Belmaggio refused nonjudicial punishment and demanded trial by

court-martial, and Captain Cannon referred a charge of drug use

to a court-martial. Shortly thereafter, Captain Lewelling

relieved Captain Cannon as Belmaggio’s commanding officer. 

Captain Lewelling dismissed the charge from the court-martial and

initiated administrative separation proceedings against

Belmaggio. At the ADB hearing, Captain Lewelling stated that the

charge did not warrant trial by court-martial and the matter

should be disposed of administratively. 

Belmaggio argues that the Navy improperly withdrew the

charges for court-martial and sent the charges to the

administrative board. Article 15.2 of the Manual for CourtsMartial states that a member of the forces may demand trial by

court-martial in lieu of nonjudicial punishment, prior to the

imposition of nonjudicial punishment. However, the commanding

officer could still choose to send the charges to an

administrative discharge board. “Nonjudicial punishment” refers
 

7See Exec. Order No. 12473, 49 Fed. Reg. 17152, Part V:

Nonjudicial Punishment Procedure § 1.g: Relationship of

nonjudicial punishment to administrative corrective measures

(1984); Dobzynski v. Green, 16 M.J. 84, 88 (C.M.A. 1983)

(Everett, C.J., dissenting) (noting that the record of

nonjudicial punishment can be used “in connection with an

administrative discharge,” indicating that the two are

different).

 

8R.C.M. 604.

 

9United States v. Charette, 15 M.J. 197 (C.M.A. 1983).

7

to punishment imposed by a commanding officer in lieu of a courtmartial; it is not the equivalent of administrative proceedings.7

The Commanding Officer has the discretion to change his mind

about continuing the court-martial.8 Belmaggio contends that,

once referred for a court-martial, certain rights vest, including

the right to be proven guilty beyond a reasonable doubt, and the

right to confront witnesses. Belmaggio argues that the

Commanding Officer can withdraw charges from a court-martial only

if the withdrawal is not arbitrary or unfairly prejudicial to the

rights of the accused.9 Under the Rules of Court Martial, 

R.C.M. 604: 

(a) Withdrawal. The convening authority or a

superior authority may for any reason cause

any charges or specifications to be withdrawn

from a court-martial at any time before

findings are announced. 

(b) Referral of withdrawn charges. Charges

which have been withdrawn from a courtmartial may be referred to another courtmartial unless the withdrawal was for an

improper reason. Charges withdrawn after the

introduction of evidence on the general issue

of guilt may be referred to another

court-martial only if the withdrawal was

necessitated by urgent and unforeseen

military necessity. (Emphasis added)
 

10United States v. Koke, 32 M.J. 876, 879 (N.M.C.R. 1991),

aff’d 34 M.J. 313 (1992).

 

11Id. at 880-81.

 

12In a similar vein, Belmaggio directs this court to the

dissenting opinion in Dobzynski v. Green, 16 M.J. 84 (C.M.A.

1983), to support her contention that because she had the right

to refuse nonjudicial punishment and demand trial by courtmartial, she had an absolute right to a court-martial. In

Dobzynski, the dissent noted that if a member who was not

attached to a vessel was taken to a special court-martial, then

the charges were withdrawn and the member was offered nonjudicial

punishment, the member could refuse nonjudicial punishment under

604(b); the commanding officer would have to refer the charges to

another court-martial or dismiss the charges. Dobzynski, 16 M.J.

at 86-87. However, even in the dissent’s hypothetical, the

commanding officer would have the power to refer to another

court-martial (within certain limits) or for administrative

proceedings.

8

Belmaggio argues that “[t]he purpose of R.C.M. 604(b) ... is to

check potential unfair manipulation of the charging and dismissal

processes to gain unfair advantage over an accused, to prevent

prosecutorial harassment, and to prevent retaliation against the

accused for exercising a right.”10 Koke sets out various

factors to consider, including the stage of the court-martial

proceedings.11 However, rule 604(b) and these cases do not apply

in this case, as the charges were referred to an administrative

board, not another court-martial, as was the situation in Koke.

12

Belmaggio argues that the actions of the convening authority

exposed her to a greater risk of prejudicial discharge. The

administrative board proceedings did allow for a lower standard

of proof and less stringent rules for the introduction of

evidence. However, under an administrative proceeding, Belmaggio
 

13United States v. Gansemer, 38 M.J. 340, 342 (C.M.A. 1993).

 

14See R.C.M. 306(c).

 

15Exec. Order 12473, 49 Fed. Reg. 17152 (1984).

9

was no longer subject to imprisonment, a bad conduct discharge,

forfeiture of pay and allowances, or a reduction in pay grade.

Belmaggio argues that once the convening authority decides

to refer the case to court-martial, “the election of remedies

shifts to the servicemember.”13 She takes this quote out of

context. The court went on to discuss the service member’s

options to contest the charges, plead guilty or try to negotiate

a deal. There is no indication that the right to a court-martial

somehow “vests,” as Belmaggio contends. 

The MCM provides commanding officers with broad discretion

when determining how to dispose of offenses committed by members

of their command.14 "When a commander dismisses charges further

disposition under R.C.M. 306© of the offenses is not barred.”15

The BCNR did not err in finding that Captain Lewelling acted

within his authority.

4. Review of the BCNR’s findings

Belmaggio argues that the court erred in adopting the BCNR’s

findings because they were arbitrary and capricious.

Belmaggio first argues that the BCNR erred by not allowing

her to appear before the board. Belmaggio had previously

received a full hearing before the ADB. Under 32 C.F.R. §723.4,
 

1632 C.F.R. § 723.4(a) (1997).

 

17Burns v. Marsh, 820 F.2d 1108, 1109 (9th Cir. 1987).

 

18Duhon v. United States, 461 F.2d 1278, 1281 (Ct. Cl.

1972); Caddington v. United States, 178 F. Supp. 604 (Ct. Cl.

1959).

10

an “applicant for correction” of his/her record is entitled to

appear. Belmaggio argues that she would have demonstrated

several things had she been allowed to appear. However, that

provision only applies if the “Board determines a hearing is

warranted,” which it did not do in this case.16 The BCNR is not

required to hold a hearing.17 The BCNR conducted a documentary

review of Belmaggio’s application, including her thirty-page

application for relief and the transcript of the ADB hearing. 

Under the circumstances, Belmaggio has not shown that their

decision to deny her a personal appearance was arbitrary or

capricious.

Belmaggio also contends that the BCNR erred by not

requesting an advisory opinion from the authors of the

regulations governing the procedures for urinalysis tests to

ascertain whether the local procedure complied with required

safeguards or met the intent of the instruction. Belmaggio

argues that the BCNR has a duty to correct “obvious injustices”

by the military, and that the Secretary has a duty to take

corrective action for any error or injustice.18 Although

correct, those statements do not determine the substantive

issues. Neither the statute empowering the BCNR to correct

errors nor its regulations require that it obtain an advisory
 

1910 U.S.C. § 1552 (1997); 32 C.F.R. § 723 (1997).

11

opinion prior to deciding the case.19 The BCNR reviewed both the

administrative record and the regulations before concluding that

the procedures used in obtaining Belmaggio’s urine sample and

transport to the laboratory complied. Nothing further was

required.

Lastly, Belmaggio argues that the BCNR’s decision was

unsupported by substantial evidence. Belmaggio spent the three

days preceding the urinalysis with a retired Chief Petty Officer,

who testified that she did not observe Belmaggio ingest cocaine

nor display any symptoms associated with cocaine during that time

period. Her supervisors stated that they had never seen any

signs of drug use. Belmaggio argues that her good military

record and lack of other indications of drug use indicate that

the test was somehow flawed. The fact that Belmaggio presented

such exculpatory evidence does not rule out the existence of

substantial evidence to support the BCNR determination.

5. Constitutional claims

As a threshold matter, the court must decide whether

Belmaggio has a property or liberty interest in her employment

with the United States Navy. The court finds 
 

20See Perez v. United States, 850 F. Supp. 1354, 1361 (N.D.

Ill. 1994).

 

21Morrissey v. Brewer, 408 U.S. 471, 481 (1972). 

 

22Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546

(1985). 

12

that she has both.20 Once it is determined that plaintiff is

entitled to constitutional due process protections, "the question

remains what process is due."21 "The essential requirements of

due process ... are notice and an opportunity to respond."22

Belmaggio argues that the district court erred by upholding

the BCNR decision because the BCNR is not empowered to make

constitutional decisions. However, the district court did not

simply defer to the BCNR’s opinion of the constitutional

requirements; the district court independently found that

Belmaggio’s claims of constitutional deficiencies in the BCNR

process were without merit.

a. Right to confrontation

Belmaggio argues that the district court erred in finding

that the Sixth Amendment right to confrontation does not attach

to hearings before the ADB. The government introduced the

urinalysis evidence through the signed statement, and then the

telephonic testimony, of Lieutenant Kleete, the Assistant

Technical Director for the Navy Drug Screening Laboratory that

performed the test in this case. Belmaggio was not allowed to

confront or cross-examine Lieutenant Kleete. The board stated

that a second phone call would be made only if the board members

had a question. Belmaggio argues that she would have questioned
 

23Perez v. United States, 850 F. Supp. 1354, 1364 (N.D. Ill.

1994) (citations omitted). See also Unglesby v. Zimny, 250 F.

Supp. 714 (N.D. Cal. 1965).

 

24360 U.S. 474, 506-07 (1959).

13

Kleete on his assertions about the color of the sample and the

lack of any sign of tampering. However, despite her right to do

so, she did not ask to independently call Kleete as a witness.

The Sixth Amendment requires that, “[i]n all criminal

prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him.” (Emphasis added). 

The only two courts to address the issue of the applicability of

the Sixth Amendment to military administrative discharge

proceedings both held that it does not apply: 

As discussed below, these Sixth Amendment

rights do not apply in the administrative

discharge context. Procedural due process

generally requires notice and some form of

pre-deprivation hearing. See Zinermon v.

Burch, 494 U.S. 113, 127, 110 S. Ct. 975,

984, 108 L.Ed.2d 100 (1990) (citing 

Loudermill, 470 U.S. at 542, 105 S. Ct. at

1493). While the hearing should normally be

sufficiently structured to allow the

plaintiff an opportunity to be heard and to

respond to the charges against him, it need

not provide him with the same protections

afforded defendants in criminal trials.23 

Belmaggio argues that the President or Congress must

explicitly delegate authority to a governmental body to allow it

to deprive an individual of their employment where it implicates

constitutional concerns. However, the case she cites, Green v.

McElroy,

24 simply rejected an implied delegation where the

statute had not delegated any authority to even create the
 

25See, e.g., United States v. McCormick, 54 F.3d 214, 220-21

(5th Cir. 1995).

 

26See, e.g., Willner v. Committee on Character & Fitness,

373 U.S. 96 (1963) (New York bar denied admission to a new

lawyer).

14

security clearance program whose specific procedures were at

issue.

Belmaggio argues that this case is similar to parole and

probation hearings because both implicate a liberty interest and

misconduct must be shown by a preponderance of the evidence. 

Based on that argument, she reviews the Fifth Circuit cases

involving parole revocation in which the court has required the

government to show good cause why urinalysis evidence should be

allowed in through the testimony of a probation officer; the

court employed a balancing test, weighing the defendant’s

interest in confronting a specific witness against the

government’s reasons for denying it.25 Belmaggio argues that

Kleete is analogous to a probation officer. However, unlike a

probation officer who would simply receive reports from the lab,

Kleete has a Ph.D in Pharmocology/Toxicology and certifies the

lab results after assuring that proper procedures have been

followed. 

Belmaggio also compares this proceeding to an employment

hearing. She argues that the Supreme Court has held that the

confrontation clause applies in employment hearings.26 However,

the Court was addressing situations in which the employee was

denied any kind of a hearing; in this case, Belmaggio had an
 

27293 F.2d 852 (D.C. Cir. 1961).

 

28Id. at 856.

 

29Id. at 858.

15

opportunity to be heard and was even represented by counsel at

the ADB hearing.

Belmaggio cites to Bland v. Connally,

27 in which the court

held that the respondent has a constitutional right to confront

witnesses against him in an administrative proceeding

recommending a less than honorable discharge. In that case, the

respondent was being discharged for association with the

communist party, and the court stated that the military had “no

express authority to premise a derogatory discharge upon

association with suspect groups or individuals. Also, while

[regulations] do provide that a derogatory discharge must be

based solely upon the military record of the dischargee, they

confer no express power to establish the necessary facts by

secret evidence.”28 The military had not allowed the respondent

even to know the identity of the witnesses against him, much less

confront them.29 Moreover, the grounds for the discharge,

association with communists, was itself suspect under the First

Amendment. The case before this court is quite different. 

Belmaggio had several due process protections: she knew who was

presenting the evidence against her, what that evidence was, had

the right to present her own evidence and call witnesses, and was

represented by counsel.
 

30397 U.S. 254 (1970).

 

31Id. at 269.

 

32Id. at 260 (emphasis in original).

 

33Id. at 264 (emphasis added).

 

34395 U.S. 411 (1969).

16

Belmaggio cites Goldberg v. Kelly,

30 to support her argument

that a right to confront witnesses is essential. The Court did

state that “[i]n almost every setting where important decisions

turn on questions of fact, due process requires an opportunity to

confront and cross-examine adverse witnesses.”31 However, in

that case, “The constitutional issue to be decided ... [was] the

narrow one whether the Due Process Clause requires that the

recipient be afforded an evidentiary hearing before the

termination of benefits.”32 Moreover, while the Court found that

a right to confront witnesses was a requirement, that decision

was based on the context, the nature of the right at issue --

welfare benefits. “Thus the crucial factor in this context--a

factor not present in the case of the blacklisted government

contractor, the discharged government employee, the taxpayer

denied a tax exemption, or virtually anyone else whose

governmental entitlements are ended--is that termination of aid

pending resolution of a controversy over eligibility may deprive

an eligible recipient of the very means by which to live while he

waits.”33

Belmaggio also cites to Jenkins v. McKeithen.

34 In that

case, the appellant challenged the constitutionality of a 1967
 

35Id. at 427-28.

 

36Id. at 429.

17

Louisiana statute which created a body called the

Labor-Management Commission of Inquiry. The purpose of the

Commission was to aid the law enforcement authorities of the

state by investigating and making findings on possible violations

of the labor laws. The Court found that “the Commission very

clearly exercises an accusatory function; it is empowered to be

used and allegedly is used to find named individuals guilty of

violating the criminal laws of Louisiana and the United States

and to brand them as criminals in public.”35 “In the present

context, where the Commission allegedly makes an actual finding

that a specific individual is guilty of a crime, we think that

due process requires the Commission to afford a person being

investigated the right to confront and cross-examine the

witnesses against him, subject only to traditional limitations on

those rights.”36 However, unlike the administrative board, the

Commission limited the individual’s right to present his or her

own evidence. 

b. Introduction of Urinalysis Evidence

Belmaggio argues that the urinalysis evidence was improperly

admitted because there was evidence of tampering and lapses in

the chain of custody. The Navy Military Personnel Manual

(MILPERSMAN) § 3640350 provides that all relevant evidence be

admitted before an administrative board and that evidence that
 

37United States v. Courts, 9 M.J. 285, 290 (C.M.A. 1980).

 

38United States v. Maxwell, 38 M.J. 148, 150 (C.M.A. 1993).

 

39United States v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989). 

 

40United States v. Longtin, 7 M.J. 784, 789 (A.C.M.R. 1979)

(citation omitted).

18

would not be admissible at a court-martial can be used at an

administrative proceeding.

To admit laboratory analysis of fungible material, such as

urine, the government must demonstrate a continuous chain of

custody.37 “The Government must show that there is a reasonable

probability the sample which was tested was in fact from the

purported source and that it was not altered.”38 This means the

"chain-of-custody evidence must be adequate--not infallible."39

“Factors to be considered in making this determination [of chain

of custody] include the nature of the article, the circumstances

surrounding the preservation and custody of it, and the

likelihood of intermeddlers tampering with it.”40 Belmaggio

argues that the standard in this case should be higher because

urine is a fungible substance. However, the case she relied on

involved drugs, also a fungible substance. If anything, given

that that case dealt with a court-martial, the standard for this

case, for admission before an administrative board, is lower. 

Belmaggio argues that the government tried to rely on a

presumption that law enforcement personnel have properly

maintained the evidence. The government cannot rely solely on
 

41United States v. Gardi, 6 M.J. 703, 704 (N-M.C.M.R. 1978).

19

such a presumption.41 However, the government did not do so. It

introduced testimony from the personnel involved in the chain of

custody. The government does not dispute that there was

improper documentation of a change of custody. However, a

combination of documentary evidence and testimony from the

coordinators established an unbroken chain of custody. 

Belmaggio argues that the urinalysis coordinators’ stories

did not completely match. Also, there were inconsistencies

between the statement provided on August 20 and the testimony

given on September 26, which Belmaggio argues gives rise to the

possibility of collusion. 

Belmaggio argues that the sample bottles were prepared

incorrectly, making tampering easier. The local coordinators

adopted a slightly different procedure than that prescribed by

regulation. The label was placed on the bottle, covered with

scotch tape, and then the tamper resistant tape was placed on top

after the sample was collected. The coordinators testified, upon

examination by Belmaggio’s lawyer, that the scotch tape made it

easier to remove the tamper resistant tape and replace it without

being detected. 

Another urine sample taken the same day from Petty Officer

Johnson was found to be contaminated with mouthwash. Belmaggio

argues that the evidence showed that the contamination had to

have occurred subsequent to the Johnson’s delivery of the sample

to the urinalysis coordinators, indicating that there were
 

42United States v. Strozier, 31 M.J. 283, 285 (C.M.A. 1990).

20

problems with the custody of the bottles. Johnson’s observer

testified that he watched Johnson urinating into the bottle, and

that he saw nothing to indicate that Johnson contaminated the

sample. Belmaggio argues that, because of the evidence that

Petty Officer Johnson’s sample was tampered with, the government

has not met its burden to show that there was a reasonable

probability that her sample had not been tampered with also. 

Gross deviations in proper procedure is sufficient to

exclude results. However, the case Belmaggio cites for support

is an example of truly gross deviations: 

[The urinalysis coordinator] had appellant

deposit the sample in a cup with a plastic

lid, rather than in a urine-specimen bottle,

as required by AFR 160-23. Additionally, the

sergeant failed: to seal the container with

tamper-resistant tape; to have appellant

observe him seal the container; to have

appellant initial the container; and to

initial the container himself. ... 

Other discrepancies in the chain of

custody included the fact that the sample was

not correctly labeled with the collection

date, the base accession number, the member's

social security number, the member's

initials, and the observer's initials. Para.

7(d)(3), AFR 160-23. ... At trial, he could

not recall whether he or a nurse sealed the

cup with a piece of tape.42

This case presents much more minor deviations from normal

procedure. 

“[D]eviating from a regulation or instruction which sets out

procedures for collecting, transmitting, or testing urine samples

does not render a sample inadmissible as a matter of law; 
 

43United States v. Pollard, 27 M.J. 376, 377 (C.M.A. 1989) 

(citing United States v. Caceres, 440 U.S. 741 (1979)).

21

however, such deviation may be considered along with all other

factors in determining if the evidence lacks sufficient

reliability to be considered by the finders of fact.”43

The BCNR, in approving the ADB’s admission of the urinalysis

evidence, noted that the results were relevant and not so tainted

by errors as to be unreliable. As the district court stated,

Belmaggio’s arguments go to the weight of the evidence against

her and do not show that the ADB clearly erred in admitting the

urinalysis results.

For the foregoing reasons, the judgment of the trial court is

AFFIRMED.