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1993-01-14
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/* This case is reported in 25 M.J. 579. This military case
considers the admissibility of HIV tests in military
prosecutions. */
UNITED STATES, Appellant,
v.
Private First Class Adrian G. MORRIS, 345585966, United States
Army, Appellee.
U.S. Army Court of Military Review.
15 Oct. 1987.
MEMORANDUM OPINION PER CURIAM:
The case is before the court pursuant to Article 62 of the
Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. 862 (Supp. 11983), for consideration of the government's
interlocutory appeal from a ruling of the military judge which
exduded from evidence the results of appellee's Human T-
Lymphotrophic Virus Type III (HTLV-III), also known as Human Immu
nodeficiency Virus (HIV), test.
On 6 August 1987 the military judge granted a defense motion to
suppress the test results and on 28 August 1987 denied the
government's motion to reconsider.
We find that the military judge erred in suppressing the test
results. Appellee is charged with offenses alleging, inter alia,
that, while knowing that he was infected with HIV and that it
(HIV) can be sexually transmitted, he engaged in sexual
intercourse and sodomy with others. Appellant, at trial, intended
to introduce into evidence the results of appellee's HTLV-III
test in order to demonstrate knowledge of infection. The military
judge after hearing the motion [footnote 1] held that the test
results were privileged and not admissible, stating that "the DA
Letter of February of '86 says that the results of AIDS Testing
may not be used in UCMJ actions." [footnote 2]
Under the circumstances of this case the test results are not
privileged. The purpose of the stated privilege is to preclude
disciplinary or other adverse actions based solely upon a test
result (indicating possible past misconduct) or information of
past misconduct revealed during a post-test interview of an
individual testing positive. As such, the privilege is a form of
limited immunity granted for possible past criminal misconduct
and does not prohibit use of the test results where they directly
relate to future misconduct. Here the basis of the disciplinary
action is not the mere presence of HIV antibodies but rather
conduct alleged to have occurred after the test and with
knowledge of HIV infection.
In light of our disposition of this case, we need not now decide
whether the military judge erred in refusing the government's
request for reconsideration or whether, indeed, such a ruling is
appealable under Article 62. [footnote 3]
The appeal of the United States is granted. The ruling of the
military judge is vacated, and the record will be returned to the
military judge for action.
FOOTNOTES:
1. The motion was styled by appellee as "Motion for Appropriate
Relief indicating that the test results and epidemiologic-
assessment interview is by DoD and DA Directive privileged and
can't be used at a court-martial ..." Record of trial 48.
2. Department of Army Letter, 40-86-l, 1 Feb 86, subject:
Policy for Identification, Surveillance, and Disposition of
Personnel Infected with Human T-Lymphotrophic Virus Type III
(HTLV-III) para. 13:
d. Limitations on the Use of Information. (1) Results obtained
from laboratory tests for HTLV-III performed under this policy
and information concerning personal drug use or consensual sexual
activity disclosed by a soldier as part of an epidemiological
assessment under this policy may not be used against the service
member in actions under the Uniform Code of Military Justice, in
a line of duty determination, or on the issue of characterization
in separation proceedings. Such information may not be used as
the basis for separation of the service member except for (a)
separation based upon physical disability, (b) separation for the
convenience of the government after a hearing before a board of
officers and approval by the Secretary or an Assistant Secretary
of the Army, or (c) in accordance with reference h. (Note: Infor
mation divulged by soldiers concerning matters other than
personal drug use or consensual sexual activities is not limited
by this policy.)
(2) The limitations in paragraph d(1) above do not apply to:
(a) The introduction of evidence for impeachment or rebuttal
purposes in any proceeding in which the evidence of drug abuse or
relevant sexual activity (or lack thereof) has been first
introduced by the service member;
(b) Disciplinary or other action based on independently derived
evidence.
3. Article 62 provides for appeal by the United States of any
"order or ruling of the military judge which terminates the
proceedings with respect to a charge or specification or which
excludes evidence that is substantial proof of a fact material in
the proceeding."