Questions About Military Drug Testing

While preparing for a court-martial case at Fort Bragg, I spoke with a Forensic Toxicologist.  The Toxicologist works as a civilian for the military.  He has spent years working with military drug testing facilities and is familiar with their internal processes.  He was also familiar with the studies that evaluate military drug testing procedures.  Based on our conversation, I realized that there are common questions that military members and even some JAGs have about the drug testing process. 

Even though times have changed, the purity and potency of many drugs have increased since 2002. Far too many military members and JAGs have not kept up with the latest guidance or the practical changes in the process resulting from changes in the drug market and the Uniform Code of Military Justice.

Our firm prides itself on keeping up with current scientific research that impacts our clients and their cases.  We also work hard to maintain a close working relationship with some of the leading experts in Forensic Toxicology.

Here are some answers to the common questions we Hear

• If I test positive for a controlled substance on a urinalysis test, will I be court-martialed? If you are an NCO or officer in the Air Force, the most common answer is yes.  The Air Force often sends drug cases to court-martial.  For the other services, you will likely face Nonjudicial Punishment under Article 15 and then administrative separation.  Regardless of the drug, a positive urinalysis (UA) for a controlled substance used without a valid prescription will result in the initiation of separation proceedings.

• I heard there were changes to the law impacting courts-martial; will that affect my drug case?  Yes.  More military members will be facing court-martial for drug use under the changes to the UCMJ.  The changes to the law have authorized a military “judge alone” court-martial.  A military member tried by this type of court-martial has a maximum punishment limited to six months confinement.  The "judge alone" court cannot issue punitive discharges.  The services may send more drug cases to a Military Judge Alone court-martial because it is a relatively expeditious way to resolve the matter. After all, a court-martial panel (jury) is not required.

• If I use a product that contains CBD or marijuana oil, will I test positive?  Yes.  Many of the products sold at health food and grocery stores that include hemp, hemp derivatives, or CBD can result in tetrahydrocannabinol (THC) in urine.  Drug tests for military members are designed to detect THC.  Any military member using products made from hemp or marijuana risks testing positive on a UA.  Because many legal off-the-shelf products can still cause a positive result on a military drug test, all the services have issued policies like AR 600-85. The “Army Substance Abuse Program” prohibits the use of hemp products and any derivatives by military members.  As a result, an army member who uses a legal product is deemed to have violated the military substance abuse policy if they use hemp or other products derived from marijuana.

• If I am exposed to secondhand smoke or am around people smoking weed, will I test positive?  Maybe.  Even a few years ago, most experts would say the answer to this question is a resounding no. The amount of THC in your system would be too low to cause a positive drug test.  Essentially, that answer is changing as the strains of marijuana change.  The strains are becoming stronger and purer, and the concentration of THC is increasing.  Given the evolution of marijuana growth practices and the available new strains, new studies suggest that exposure to secondhand smoke is a potential cause of a positive drug test.

• I heard that the military does not test for steroid use; is that true?  No.  While it is true that the typical military UA does not include testing for steroids, the military does send some samples for additional testing at outside labs.  Most often, this is done in cases where there is an ongoing investigation or suspected steroid use.

• All the products and supplements sold on Base at the Exchange GNC or the Commissary are safe. They will not cause a positive test result. No.  Believe it or not, just because a product is sold on base does not mean that it is free from hemp, hemp derivatives, or other compounds that could cause a positive drug test.

• As long as I am using my own prescription, I can take it for a new injury or illness, right? No.  The military has adopted a rigorous “only for the purpose prescribed” policy related to prescription drug use.  For example, an Air Force member prescribed Tylenol 3 (with codeine) for tooth pain associated with a root canal.  She took one pill to treat pain from a cracked tooth months later.  Even though the prescription stated, “take as needed for mouth pain,” the Air Force assumed that Tylenol 3 was prescribed for one tooth for the root canal and not for the new injury.  Consequently, the result was that an NCO was discharged for illegal drug use.

• What is a “false positive,” and can that happen at the military labs?  Essentially, a “false positive” occurs when a military member’s sample that did not contain any controlled substances when the sample was submitted is reported as having tested positive by a lab.  The answer is yes.  There have been instances where administrative, quality control or other errors have resulted in “false positives” at military drug testing labs.  The most recent occurrence was at Great Lakes in 2017.

If you or someone you know tests positive on a military drug test, please contact Crisp and Associates, LLC, as soon as possible.  Our experienced attorneys have handled hundreds of cases involving positive UAs.  They have won numerous acquittals for clients with court-martial cases.  The impact of a positive drug test can be devasting to a military career and your future; call us and find out what it is like to have an experienced military veteran join you in the fight to save your career.