Defending Those Who Defend Us®
  • 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.

    Article 112a, UCMJ (Wrongful Use, Possession, etc., of 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

    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.

    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.