## Facts

- A military commander implemented a written anti-drug policy and conducted periodic, command-wide urinalysis “inspections” requiring all personnel to provide urine samples when ordered.
- Across roughly 20 prior inspections, only two servicemembers tested positive; the command addressed first positives with nonjudicial punishment and addressed a subsequent positive with administrative separation rather than court-martial.
- During a later unit-wide urinalysis inspection, Sergeant First Class Kelvin Gardner was ordered to provide a urine sample but submitted a sample that was plainly water.
- Gardner was charged under Article 92, UCMJ, with dereliction of duty for failing to provide a proper urine sample as ordered during the inspection.
- To challenge the lawfulness of the inspection, Gardner offered evidence suggesting the program functioned as a pretext for criminal investigation, including that other commands used urinalysis results for prosecutions and that positive results were routinely shared with military law-enforcement.

## Issues

1. Whether the unit-wide urinalysis program qualified as a lawful “inspection” under Mil. R. Evid. 313(b) or an unlawful, pretextual search primarily aimed at obtaining evidence for criminal prosecution in violation of the Fourth Amendment.
2. If the inspection was lawful, whether Gardner’s deliberate submission of water instead of urine supported a conviction for dereliction of duty under Article 92, UCMJ.

## Decision

- The court held the urinalysis program was a valid inspection under Mil. R. Evid. 313(b), not a subterfuge for a law-enforcement search.
- The court rejected Gardner’s pretext arguments as insufficient to show the inspection’s primary purpose was criminal prosecution.
- Because the inspection order was lawful, Gardner had a duty to comply; submitting water instead of urine constituted dereliction of duty.
- The conviction and the lower court’s decision were affirmed.

## Legal Principles

- Under Mil. R. Evid. 313(b), an inspection is lawful when its primary purpose is to assess or ensure unit security, military fitness, or good order and discipline; evidence found may be admissible.
- An inspection is unlawful if it is a subterfuge for a search principally intended to obtain evidence for criminal prosecution.
- The primary-purpose inquiry focuses on the commander’s intent and actual practice in administering and using inspection results; the fact that results may also be shared with law enforcement or later used in prosecutions does not, by itself, convert an inspection into an unlawful search.
- When an inspection is lawful, a servicemember’s knowing interference with required compliance (including submitting a non-urine substitute) can constitute dereliction of duty under Article 92.

## Conclusion

The court concluded the unit urinalysis program was a lawful command inspection under Mil. R. Evid. 313(b) because its dominant purpose was unit fitness and discipline rather than criminal evidence-gathering; accordingly, Gardner’s intentional submission of water violated a lawful duty to provide a urine sample and supported his dereliction conviction.


United States v. Gardner, 41 M.J. 189 (C.M.A. 1994)