When it comes to illegal drug use, military service members are held to a much higher standard compared to civilians. Irrespective of the decriminalization of drugs in several U.S. States, the military has not changed their stance on the illicit use of controlled substances. The Uniform Code of Military Justice (UCMJ) prohibits the use of any controlled substances that alter your mind, your mood, your body, or your overall ability to function. If you are facing drug charges as a military servicemember, you must understand the UCMJ rules and how they will affect your military proceedings.
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
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.
TESTING FOR DRUG USE
In most cases, a urinalysis program is used to detect drug use in the military. The tests will check for a wide range of drugs and controlled substances, including the following:
The military is constantly expanding the different types of drugs tested in the urinalysis programs across the Department of Defense. Military drug labs are also well-informed about new or lesser-known drugs, and their metabolites, allowing law enforcement to catch more illegal drug use with the forensic toxicological tests.
DELTA-8 THC VERSUS DELTA 9-THC
Historically, the military only tested for delta-9 THC (the controlled substance) during urinalysis testing. In 2021, the Department of Defense (DoD) expanded its urinalysis screening to also test for delta-8 THC (i.e. the commercially available type that is not a prohibited controlled substance).
Delta-8 THC is similar to delta-9 THC and exists naturally in cannabis plants at low levels. Delta-8 THC is still, however, a psychoactive cannabinoid that can cause a user to experience a type of “high”. For this reason, the DoD prohibits service members from ingesting or otherwise using any product containing delta-8 THC.
Because Delta-8 THC is not a controlled substance under federal law, service members who test positive for Delta-8 THC cannot be charged with violating Article 112a, UCMJ. Instead, service members who test positive for Delta-8 THC may only be charged under Article 92, UCMJ for violating a lawful order. Service members who unknowingly consumed a product containing delta-8 THC may be able to assert a defense of innocent ingestion.
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, including the use of delta 8-THC, be subject to mandatory processing. Mandatory processing is not the same as mandatory separation. Whether 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 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.
ASSESSING THE FACTS OF YOUR CASE
If your urinalysis leads to a finding of drug use, don’t panic. A positive test result does not automatically lead to a conviction. The UCMJ must also review the factual circumstances of your case. You shouldn’t face repercussions for the legal use of prescription drugs, for instance.
When it comes to illegal drug use, you also cannot be found guilty if you ingested the substance unknowingly. It’s possible that you mistook an illicit drug for a legal substance, or perhaps you came in contact with a surface contaminated with an illegal substance at a nightclub. The UCMJ will only consider your drug use illegal, or unlawful, if it was done knowingly and consciously.
Beyond the circumstances of your case, your military drug abuse defense lawyer can also defend a drug charge by investigating the collection and testing of your urine sample. It’s always possible that someone made a mistake in the process of collecting the urine and potentially compromised the results. The actual testing process should also be scrutinized to ensure there were no errors.
TAKING YOUR CASE BEFORE A JURY
If your case reaches a military jury, your attorney can introduce any of these various factors to avoid a conviction. The more information they have, the better. The jury isn’t required to convict you solely based on your test results after all, so a solid legal argument will give you the best chances at a favorable outcome.
MJA VICTORIES
MJA has successfully defended service members facing investigation, court-martial, and discipline for Article 112a offenses. Examples of successful cases include:
PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER
A positive urinalysis can be enough to destroy a military career. 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 urinalysis, it is critical that you speak with an experienced military defense attorney. Contact our military defense lawyers now to learn more.