The Department of Defense (DOD) began to use DNA samples to identify the remains of service members during the first Gulf War in 1991. “Because of problems with obtaining reliable DNA samples during the Gulf War, the DOD began a pro-gram to collect and store reference specimens of DNA from members of the active duty and reserve forces.” What was then called the “DOD DNA Registry,” a program within the Armed Forces Institute of pathology, was established pursuant to a December 16, 1991 memorandum of the Deputy Secretary of Defense. Under this program, DNA specimens are collected from active duty and reserve military personnel upon their enlistment, reenlistment, or preparation for operational deployment.
As of December 2002, the Repository, now known as the “Armed Forces Repository of Specimen Samples for the Identification of Remains,” contained the DNA of approximately 3.2 million service members. According to a recent DOD directive, the “provision of specimen samples by military members shall be mandatory.” The direction to a soldier, sailor, airman, or marine to contribute a DNA sample is a lawful order which, if disobeyed, subjects the service member to prosecution under the Uniform Code of Military Justice (UCMJ). If convicted at court-martial for the offense of violating a lawful general order, the service member carries the lifelong stigma of a federal felony conviction, and faces a maximum punishment of a dishonorable discharge, confinement for two years, total forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.
As its name suggests, the DNA Repository was initially conceived solely to identify the remains of service members. However, a small entry in the huge 2003 National Defense Authorization Act, “signed by President Bush on December 2, 2002, overrides Pentagon policy that the DNA samples be used almost solely to identity troops killed in combat,” and allows access to the Repository for law enforcement purposes. The provision reads:
§ 1565a. DNA samples maintained for identification of human remains: use for law enforcement purposes
(a) Compliance with a court order.
(1) Subject to paragraph (2), if a valid order of a Federal court (or military judge) so requires, an element of the Department of Defense that maintains a repository of DNA samples for the purpose of identification of human remains shall make available, for the purpose specified in subsection (b), such DNA samples on such terms and conditions as such court (or military judge) directs.
(2) A DNA sample with respect to an individual shall be provided under paragraph
(1) in a manner that does not compromise the ability of the Department of Defense to maintain a sample with respect to that individual for the purpose of identification of human remains.
(b) Covered purpose. The purpose referred to in subsection (a) is the purpose of an investigation or prosecution of a felony, or any sexual offense, for which no other source of DNA information is reasonably available.
(c) Definition. In this section, the term “DNA sample” has the meaning given such term in section 1565(c) of this title.
The 2002 law, proposed by Rep. John Culberson, R-Texas, passed with no debate. It followed the January, 2002 rape of a soldier at Fort Hood, Texas by a fellow soldier, Specialist (SPC) Christopher Reyes. The law is in addition to the military’s statutory requirement, similar to that of every state and the District of Columbia, for collection of DNA samples from those soldiers who are convicted of certain offenses by military court-martial, which are furnished to the Director of the Federal Bureau of Investigation for inclusion in the Combined DNA Index System (CODIS).
The military’s DNA collection program has had its opponents. Two members of the United States Marine Corps were ordered to give DNA samples before being deployed to the Pacific in January 1995. They refused to do so and were charged with the violation of an order from a superior commissioned officer. The military court martial dismissed the charges, holding that the regulations underlying the DNA Repository program were not punitive and thus no disciplinary action could be taken for refusal to provide specimens. The two Marines sued the government in federal court, charging that the DNA collection program violates the Fourth Amendment protection against unreasonable searches and seizures. The district court found the DNA collection requirement to be valid. The court of appeals declared the case to be moot because by the time of the appeal the two Marines had been granted honorable discharges without ever having given samples of their DNA. Since that time two other members of the military have refused to give their DNA samples. One was sentenced by a court martial to 14 days hard labor and a two-grade reduction in rank. Another temporarily lost his rank and 40 percent of his pay, and was reassigned. He was later able to claim a narrow exception on religious grounds and was reinstated.
