Military Drug Abuse Defense

It’s no secret that the military has a zero-tolerance policy when it comes to drug abuse. A service member suspected of unlawful drug abuse will either be court-martialed or processed for administrative discharge from the military.

MJA has fought and won drug abuse cases for service members throughout the world. Contact one of our military defense lawyers today to learn more.

Wrongful Use or Possession Controlled Substances

Article 112a, UCMJ, criminalizes the wrongful use, possession, manufacture, distribution, importation into and exportation from the United States, and introduction into a military installation, vessel, vehicle, or aircraft under the control the armed forces. A few important notes about 112a offenses:

First, the drug must be a controlled substance. Controlled substances include opium, heroin, cocaine, amphetamines, LSD, and marijuana, to name a few. A full list of prohibited substances can be found in the Controlled Substances Act (21 U.S.C. § 812).

Additionally, the service member’s actions must wrongful–i.e. without justification or excuse. For example, a person who possess cocaine, but actually believes it to be sugar, is not guilty of wrongful possession of cocaine.

The Department of Defense has established minimum cutoff levels that must be met before a laboratory will report a positive result. The cutoff values for some of the most common drugs are:

Drug                                   Cutoff Value

THC                                   15 ng/ml

COCAINE                          100 ng/ml

CODEINE                           2000 ng/ml

MORPHINE                       4000 ng/ml

HEROIN                             10 ng/ml

D-METH                             100 ng/ml

Finally, as expected, service members convicted of manufacturing, importing, exporting, and distributing controlled substances are punished more severely than users.

Defenses

Under the Uniform Code of Military Justice (UCMJ), which governs the legal proceedings of the United States military, there are several potential legal defenses available to service members facing drug violations. It's important to note that the availability and effectiveness of these defenses may vary depending on the specific circumstances of the case.

Here are some common legal defenses:

• Lack of knowledge: The accused may argue that they were unaware that they were in possession of or using illegal drugs. This defense could be viable if, for example, someone unknowingly consumed a substance that contained drugs or if they were given drugs without their knowledge.
• Duress or coercion: If the accused can demonstrate that they were forced or coerced into using or possessing drugs under threat of harm, this may serve as a defense. However, the threat must have been imminent and credible.
• Entrapment: Entrapment occurs when law enforcement induces or coerces an individual to commit a crime that they would not have otherwise committed. If the accused can show that they were entrapped into using or possessing drugs by military authorities, it could serve as a defense.
• Medical necessity: In rare cases, a service member may have a legitimate medical need for a substance that is otherwise illegal. If a qualified medical professional prescribed the drug and the service member used it according to the prescription, this could potentially be a defense.
• Unreliable testing procedures: The accused may challenge the reliability or accuracy of drug testing procedures used by the military. This could include questioning the handling of samples, the calibration of equipment, or the qualifications of the personnel conducting the tests.
• Chain of custody issues: Related to unreliable testing procedures, the defense might argue that there were errors or irregularities in the chain of custody of the drug samples, casting doubt on their validity as evidence.
• Violation of rights: The accused may claim that their constitutional rights were violated during the investigation or arrest process. This could include unlawful search and seizure, denial of access to legal counsel, or coercion during interrogation.
• Selective prosecution: If the accused can show that they are being unfairly singled out for prosecution while others who have committed similar offenses are not being prosecuted, this could be a defense.
• Insufficient evidence: Ultimately, if the prosecution cannot prove beyond a reasonable doubt that the accused committed the alleged drug violation, this lack of evidence could result in an acquittal.

It’s a misconception that service members can’t fight or challenge a positive military urinalysis test. This lie is often told by commands trying to convince a suspected service member to waive their rights and plead guilty. But this simply isn’t true. MJA has successfully defended service members across the military branches charged with drug abuse. Such defenses include good military character, unknowing ingestion, time line, military drug testing limitations, and defects in urine collection procedures.

Maximum Penalties

The maximum punishment for drug abuse depends on several factors. These include the specific drug involved, the amount of controlled substance, and the activity or status of the service member when the illegal action occurred.

For example, a service member convicted of wrongfully using, possessing, manufacturing, or introducing the following substances can be dishonorably discharged, forfeit all pay and allowances, and be imprisoned for up to two years: 

• Marijuana (with use or possession, for less than 30 grams);
• Phenobarbital; and
• Schedules IV and V drugs.

The maximum punishment increases to five years confinement for:

• Amphetamine;
• Cocaine;
• Heroin;
• LSD;
• Marijuana (more than 30 grams);
• Methamphetamine;
• Opium;
• Phencyclidine;
• Secobarbita; and
• Schedules I, II, and III drugs.

Five years will be added to the maximum term of confinement if, at the time of the alleged offense, the accused was:

• On duty as a lookout or sentinel;
• On board a military vessel or aircraft;
• In or at a military missile launch facility;
• Receiving special pay under 37 U.S.C. § 310;
• In time of war; or
• In military confinement facility.

This is a significant increase in punishment considering the number of service members who serve onboard a military vessel or receive special duty pay.

Mandatory Processing for Separation

The Department of Defense (DoD) has a zero-tolerance policy on drug abuse. This policy requires that any substantiated incident of drug abuse be subject to mandatory processing. Mandatory processing is the not the same, however, as mandatory separation. The DoD’s policy simply requires that service members with substantiated incidents of drug abuse be processed for separation. Whether or not separation will occur depends on numerous factors.

Simple cases of use or possession are generally handled administratively through nonjudicial punishment or summary court-martial. More serious cases may result in criminal charges at a special or general court-martial.

Service members with less than 6 years of military service do not rate a separation board. As a result, they can be administratively separated from the military with a general (under honorable conditions) characterization of service through simple notification procedures. Service members with more than 6 years of military service are entitled to a separation board hearing. For them, mandatory processing can mean either a board hearing or court-martial.

Struggling with Substance Abuse in the Military?

If you're struggling with substance abuse in the military, it's crucial to take proactive steps to address the issue and seek help. Here's what you should do:

• Recognize the problem: Acknowledge that you have a substance abuse problem and understand the potential consequences if left untreated. Accepting the reality of the situation is the first step toward recovery.
• Reach out for support: Don't try to deal with substance abuse alone. Reach out to someone you trust, such as a close friend, family member, or fellow service member, and confide in them about your struggles. Opening up to someone can provide emotional support and encouragement to seek help.
• Seek professional assistance: Contact your unit chaplain, medical officer, or military substance abuse counselor for confidential assistance and guidance. These professionals are trained to help service members struggling with substance abuse and can provide resources, support, and treatment options tailored to your needs.
• Participate in treatment programs: Take advantage of the substance abuse prevention and treatment programs offered. These programs may include counseling, support groups, education sessions, and rehabilitation services designed to help service members overcome substance abuse issues.
• Follow through with treatment: Commit to participating fully in the treatment process and adhere to any recommendations or guidelines provided by healthcare professionals. Be honest and open during counseling sessions, and actively engage in activities promoting recovery and maintaining sobriety.
• Develop a support network: Surround yourself with positive influences and individuals who support your recovery journey. This may include family members, friends, fellow service members in recovery, and mentors who can provide encouragement, accountability, and assistance when needed.
• Avoid triggers and high-risk situations: Identify and avoid situations, environments, or individuals that may trigger cravings or temptations to use drugs or alcohol. Make lifestyle changes as necessary to minimize exposure to these triggers and prioritize your health and well-being.
• Take care of yourself: Practice self-care and prioritize your physical, emotional, and mental well-being. Get adequate rest, exercise regularly, eat a balanced diet, and engage in activities that promote relaxation and stress relief. Taking care of yourself holistically can support your recovery efforts and enhance your overall quality of life.
• Stay committed to recovery: Recovery from substance abuse is a lifelong journey that requires ongoing commitment, dedication, and effort. Stay focused on your goals, remain resilient in the face of challenges, and celebrate your progress and achievements.

Protect Your Freedom and Your Military Career

In the military, having even a gram of marijuana in your possession can be enough to destroy a promising future. Service members facing drug abuse allegations risk losing their career, healthcare, GI bill, and retirement benefits, if separated. Those who face court-martial risk a federal drug conviction, punitive discharge, and serious confinement time.

If you are suspected of drug abuse (or have been asked to take a military urinalysis / military drug test), it is critical that you speak with an experienced military defense attorney. MJA has successfully defended service members facing investigation, court-martial, and discipline for Article 112a offenses. We will ensure that every avenue of defense is aggressively pursued on your favor. Contact our military defense lawyers now to learn more.