                                    IN THE CASE OF


                            UNITED STATES, Appellee

                                            v.


             Bruce W. YARBROUGH, Jr., Airman First Class
                      U.S. Air Force, Appellant


                                     No. 00-0671


                              Crim. App. No. 32964

        United States Court of Appeals for the Armed Forces

                             Argued March 29, 2001

                            Decided August 31, 2001

    SULLIVAN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER, JJ., joined.

                                        Counsel

For Appellant:   Major Thomas L. Farmer (argued); Colonel James R. Wise,
     Lieutenant Colonel Timothy W. Murphy, and Major Stephen P. Kelly (on
     brief).


For Appellee:   Captain Suzanne Sumner (argued); Colonel Anthony P. Dattilo,
     Major Lance B. Sigmon, and Captain Christa S. Cothrel (on brief).



Military Judge:   Mary M. Boone

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Yarbrough, 00-0671/AF


    Judge SULLIVAN delivered the opinion of the Court.

    During August of 1997, appellant was tried by a general

court-martial composed of officer members at Peterson Air Force

Base, Colorado. Pursuant to his pleas, he was found guilty of

four specifications of wrongful use of controlled substances

(marijuana, lysergic acid diethylamide, methamphetamine, and

psilocybin), in violation of Article 112a, Uniform Code of

Military Justice, 10 USC § 912a.       On August 19, 1997, he was

sentenced to a bad-conduct discharge, confinement for 9 months,

and reduction to the lowest enlisted grade.       The convening

authority approved the sentence on October 14, 1997.       The Air

Force Court of Criminal Appeals affirmed the findings and the

sentence in an unpublished opinion.       See United States v.

Yarbrough, No. 32964 (A.F.Ct.Crim.App. June 21, 2000).



    On November 28, 2000, this Court granted review of the

following issue assigned by appellant:



           WHETHER THE MILITARY JUDGE ERRED IN
           ADMITTING APPELLANT’S SUBSTANCE ABUSE
           RECORDS.


We hold that the military judge did not err under Air Force

regulations when she admitted appellant’s substance abuse records

as government evidence during the sentencing phase of his court-

martial.   See United States v. Avery, 40 MJ 325 (CMA 1994).




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United States v. Yarbrough, 00-0671/AF


    The record before us shows that in early 1997, special agents

from the Air Force Office of Special Investigations (AFOSI)

identified appellant as being involved with a group of airmen who

used illegal drugs.   He was called in for an interview with AFOSI

on March 4, 1997, where he admitted extensive drug use and signed

a written confession detailing it.   Appellant’s commander

preferred charges against him on June 25, 1997, and on August 12,

1997, appellant referred himself to an Air Force mental health

clinic for a substance abuse evaluation.   At appellant’s court-

martial, trial counsel offered appellant’s written confession and

his medical records with respect to his substance abuse

evaluation as part of the Government’s sentencing case-in-chief,

and the military judge received them without objection from the

defense.   Appellant’s medical records made reference to pre-

service marijuana use, service-related drug use, underage

drinking, and various other instances of uncharged misconduct.

Prosecution Exhibit 5.



                            ___ ___ ___



    As a general introductory matter, we note that 42 USC §

290dd-2(a) (1992) provides that “[r]ecords of the identity,

diagnosis, prognosis, or treatment of any patient which are

maintained in connection with the performance of any program or

activity relating to substance abuse . . . treatment . . . shall

. . . be confidential.”   Subsection (c), entitled “Use of records

in criminal proceedings,” further states that “[e]xcept as



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United States v. Yarbrough, 00-0671/AF


authorized by a court order granted under subsection (b)(2)(C) of

this section, no record referred to in subsection (a) of this

section may be used to initiate or substantiate any criminal

charges against a patient or to conduct any investigation of a

patient.”    Nevertheless, subsection (e) expressly limits this

blanket of confidentiality.    It states: “The prohibitions of this

section do not apply to any interchange of records—(1) within the

Uniformed Services or within those components of the Department

of Veterans Affairs furnishing health care to veterans; or (2)

between such components and the Uniformed Services.”



    Air Force Instruction (AFI) 51-201, Administration of

Military Justice (25 April 1997), however, states:


            8.3. Use of Confidential Drug or Alcohol
            Abuse Records. Federal statutes and
            regulations restrict the disclosure of
            records as to the identity, diagnosis,
            prognosis, or treatment of drug and
            alcohol abusers under the Federal drug and
            alcohol abuse prevention programs. Refer
            to 42 USC § 290dd-3.

              8.3.1. Although these statutes and
              the federal regulations exempt from
              their prohibitions the interchange of
              records entirely within the Armed
              Forces (42 CFR § 2.12 (1982)), the Air
              Force adopted the standards as a
              matter of policy, with the limited
              exceptions in AFI 36-2702 [sic],
              Social Actions Education [sic]
              Program.

                  8.3.2 Disclosure of these records is
                  permitted at the request of, and
                  with written consent of, the
                  accused-patient:




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United States v. Yarbrough, 00-0671/AF


                    8.3.2.1. As evidence for the
                    defense before findings.

                    8.3.2.2. As evidence in
                    mitigation or extenuation in
                    presentencing proceedings.

                    8.3.2.3. After trial in
                    support of clemency or
                    clemency petitions to TJAG or
                    SAF.

                8.3.3 Follow the procedure outlined
                in 42 CFR § 2.31 in authorizing
                release of the records by the
                accused-patient. Avoid discussion
                of the records in open court to the
                extent feasible.

                8.3.4. Only release necessary and
                relevant portions of the records for
                purposes of . . . 8.3.2. An accused
                cannot selectively authorize
                disclosure of the records to mislead
                the court or other parties to the
                trial (e.g., disclosing favorable
                early records, but not later ones
                indicating regression). If there is
                reason to believe an accused is
                selectively authorizing disclosure,
                either resolve the matter among
                counsel, or by an in camera review
                of the records by the military
                judge.

                8.3.5 Drug and alcohol abuse
                records may be disclosed at trial
                without the consent of the accused
                to rebut or impeach evidence
                presented by the accused. See U.S.
                v. Evans, 20 MJ 504 (AFCMR 1985).
                U.S. v. Fenyo, 6 MJ 933 (AFCMR
                1979), pet. denied, 7 MJ 161 (CMA
                1979).

(Emphasis added.)



    Appellant contends that admission of a two-page excerpt from

his substance abuse records as part of the Government’s case-in-

chief on sentencing violated the above Instruction and AFI 36-


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United States v. Yarbrough, 00-0671/AF


2701, Social Actions Program (15 August 1994).   In this regard,

he particularly notes paragraph 4.14 of this Air Force

Instruction, entitled “Maintaining Confidentiality of SA

[Substance Abuse] Records and Information,” which states the

following:



          4.14.1.1. Only disclose the identity,
          diagnosis, prognosis, or treatment of
          clients for purposes authorized by law.
          Do not introduce records against the
          member in a court-martial. Carefully
          review all SA records, including case
          files, before their release to ensure that
          the release doesn’t violate these
          statutes.

(Emphasis added.) On these regulatory grounds, appellant claims

that the military judge committed plain error by admitting, as

part of the prosecution’s sentencing case-in-chief, portions of

his substance abuse evaluation containing admissions to various

acts of uncharged misconduct.



    The Government counters, however, that these are not the only

regulatory provisions bearing on the use of substance abuse

records in courts-martial.   It cites paragraph 5.12 of the above-

noted Air Force Instruction, entitled “Using Evaluation Results,”

which provides:



          5.12.1. Except in cases of self-
          identification, information concerning
          personal SA that the client provides in
          response to evaluation questions may be
          used against the client in a court-martial
          or on the issue of characterization in an
          administrative separation proceeding. You
          may introduce such evidence for other


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United States v. Yarbrough, 00-0671/AF


          administrative purposes or for impeachment
          or rebuttal purposes in any proceeding in
          which the client introduced evidence of SA
          (or lack thereof). You may also base
          disciplinary or other action on
          independently derived evidence of SA.


(Emphasis added.) Nevertheless, pointing to the second sentence

of this regulation, appellant argues that even in cases of non-

self-identification, this substance abuse information cannot be

used in the Government’s case-in-chief, as done in his case.



    We initially note that the record in this case makes clear

that appellant did not refer himself for substance abuse

evaluation until after charges had been preferred by his

commander.   (Charge Sheet and P.E. 5).   He was not self-

identified as defined in paragraph 5.5 of AFI 36-2701, supra.

The Court of Criminal Appeals considered this fact crucial in

applying the above regulatory provisions.    It said:



            We interpret [¶ 5.12.1] as allowing the
          use of substance abuse information for
          impeachment or rebuttal purposes in cases
          of self-identification. In all other
          cases, use of an individual’s substance
          abuse information in a court-martial is
          not restricted by AFI 36-2701, if
          otherwise admissible under the rules of
          evidence.

             The appellant’s case is not one of
          self-identification. He sought substance
          abuse counseling after he had been
          apprehended for his drug involvement,
          after his confession to the AFOSI, and
          after his commander preferred court-
          martial charges against him. Under these
          circumstances, information concerning his
          personal substance abuse could be used
          against him in a court-martial. AFI 36-


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United States v. Yarbrough, 00-0671/AF


          2701, ¶ 5.5.1.2. Furthermore, when the
          appellant failed to object to the
          introduction of his records at trial, he
          effectively consented to their release.

Unpub. op. at 3 (first emphasis added).



    The challenges raised by appellant call for a legal

construction of the above Instructions.    We believe the Court of

Criminal Appeals’ construction of these Instructions was

reasonable, and we adopt it.   See United States v. Shavrnoch, 49

MJ 334, 338 n.2 (1998); see also United States v. Roach, 29 MJ

33, 36 (CMA 1989)(“We defer to this service court’s [Coast Guard

Court of Military Review] construction of its own regulations. .

. .”).



    In support of the lower court’s regulatory view, we note that

AFI 51-201 makes clear that, although the Air Force has generally

adopted civilian standards for confidentiality of statements of

substance abuse patients, there are exceptions to this rule which

are delineated in AFI 36-2701, supra.    Moreover, although some

tension might be perceived as existing between the broad, non-use

language of paragraph 4.14.1.1., and the specific-use language of

paragraph 5.12.1 of AFI 36-2701, it is generally understood that

the more specific provisions prevail over the more general.    See

2A Sutherland Statutory Construction § 46:05 at 177-78 (6th ed.

2000).   Finally, although the defense reading of paragraph 5-12.1

of AFI 36-2701 is technically plausible, it is inconsistent with

a similar confidentiality scheme for voluntary disclosures to

command authority provided in paragraphs 5.5.1.1.2 - 5.5.1.3 of


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United States v. Yarbrough, 00-0671/AF


this same Instruction and the Air Force’s general regulatory

approach to these matters.   See United States v. Avery, 40 MJ at

327-28 (noting the importance of self-identification as a

triggering factor in Air Force drug-patient confidentiality

program); see generally Sutherland, supra at 154 (“whole statute

interpretation”).



    In view of the above, we conclude that appellant has not

established that the military judge’s ruling violated service

Instructions.   It was his burden to show, inter alia, that error

occurred in his case, and he has failed to meet this burden.    See

United States v. Tanksley, 54 MJ 169, 173 (2000) (burden on

accused to show plain error occurred at his court-martial).



    The decision of the United States Air Force Court of Criminal

Appeals is affirmed.




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