UCMJ Article 112a
Wrongful Use, Possession, etc. of Controlled Substances
Drug offenses in the military are addressed under Article 112a of the UCMJ. According to the article itself, “Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial shall direct.”
Subsection (b), mentioned above, explicitly lists these illegal substances; opium, heroin, cocaine, amphetamine, lysergic acid diethylamide (acid/LSD), methamphetamine (meth/crystal meth), phencyclidine (angel dust), barbituric acid, marijuana, and any of their compounds or derivatives. Subsection (b) also includes any substances listed on a schedule of controlled substances prescribed by the President, as well as those listed in Schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
It is important to note that, to be punished under this article, the servicemember’s action must be wrongful. Wrongfulness is defined as without legal justification or authorization. The article itself describes three circumstances in which possession, use, distribution, introduction, or manufacture is clearly not wrongful and include:
- If pursuant to legitimate law enforcement activities (i.e. informants)
- If done by authorized personnel in performance of medical duties
- If without knowledge of the contraband nature of the substance (i.e. a person who possesses cocaine but believes it to be sugar)
In the case of circumstance (3), the activity may be inferred to be wrongful in the absence of contrary evidence and the burden to prevent this evidence is on the accused servicemember. If this evidence is presented that the charged servicemember did believe the substance was not illegal, the burden is on the United States to prove that the accused service member’s actions were wrongful.
Maximum Possible Punishments for violations of Article 112a
The maximum punishment according to UCMJ Article 112a varies depending on the controlled substance at issue and the activity/status of the servicemember when his or her use, possession, manufacture, or introduction of the controlled substance occurred. Amount of controlled substance involved also has bearing on the maximum punishment allowed.
For example, for the wrongful use, possession, manufacture, or introduction of amphetamine, cocaine, heroin, LSD, methamphetamine, opium, phencyclidine, secobarbital, marijuana (except use or possession of less than 30 grams) and Schedules I, II, and III controlled substances, the maximum allowed punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
By comparison, wrongful use, possession, manufacture, or introduction of marijuana (possession of less than 30 grams or use), phenobarbital, and Schedules IV and V controlled substances involve a maximum allowable punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
The military will come down much harder on servicemembers who engage in wrongful distribution, possession, manufacture, or introduction of controlled substances with the intent to distribute, or wrongfully import or export a controlled substance rather than on those who are only users.
For example, servicemembers who deal controlled substances as stated in the previous paragraph face the maximum allowable punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years. This is for dealing in amphetamine, cocaine, heroin, LSD, methamphetamine, opium, phencyclidine, secobarbital, marijuana (no matter the amount) and Schedules I, II, and III substances. Dealing in phenobarbital and Schedules IV and V controlled substances can result in a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
When any offense under Article 112a is committed and the accused servicemember is on duty as a sentinel or lookout, on board a military aircraft or vessel, in or at a military missile launch facility, receiving special pay under 37 U.S.C. § 310 (hostile fire/imminent danger), in time of war, or in a military confinement facility, 5 years will be added to the maximum confinement period stated in the above paragraphs.
Understanding Article 112a of the UCMJ
Drug offenses under the UCMJ usually consist of two base elements. One of these elements is always that the accused’s actions were wrongful. All elements must be proved by the government beyond a reasonable doubt in order to charge a service member with a drug offense. For example, wrongful use of a controlled substance contains the following elements:
- That the accused used a controlled substance; and
- That the use by the accused was wrongful.
In the above example, “used” can be replaced with “possessed,” “distributed,” “introduced,” “imported,” “exported” or “manufactured” based on the servicemember’s activity. For wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute, a third element is required. This crime’s total elements would therefore include:
- That the accused (possessed), (manufactured), (introduced) a certain amount of a controlled substance; and
- That the (possession), (manufacture), (introduction) was wrongful; and
- That (possession), (manufacture), (introduction) was with the intent to distribute.
It is also important to note that when any of the aggravating circumstances are alleged, such as that the servicemember was receiving hostile fire pay or on a military vessel at the time of the offense, they must also be listed as an element.
How do you defend against Article 112a charges for Drug Offenses?When you are facing the combined resources of the military as well as the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys who have won these cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected former Army JAG with over 20 years of experience in military law and a sought-after speaker and lecturer on military law. Donald Gordon has litigated cases before the Discharge Review Board, the Board for Correction of Military Records, and the Board for Correction of Naval Records regarding a wide variety of matters and a diverse background of clients
If you or someone you know is facing Article 112a charges for drug offenses, you need to speak with a Military defense attorney right away. Please call Crisp and Associates Military at 888-347-1514 for a free consultation.
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