While preparing for a court-martial case at Fort Bragg I had the chance to speak with a Forensic Toxicologist who was one of my experts for the case.  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 as well as 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military members, and even some JAGs have about the drug testing process much of the information they are relying on is outdated or inaccurate. 

Despite the fact that times have changed, and the purity and potency of many drugs have increased since 2002 when I entered the Air Force, far too many military members and JAGs have not kept up with the latest guidance or the practical changes in the process that are the result of changes in the drug market as well as changes in the Uniform Code of Military Justice.

At our firm we pride ourselves in staying on the leading edge of scientific research that impacts our clients and their cases.  We also work hard to maintain close working relationship with some of the leading experts in the field of 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 likely and most common answer is yes.  The Air Force often send drug cases to court-martial.  For the other services, you will likely face Nonjudicial Punishment pursuant to 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 law impacting courts-martial; will that impact my drug case?  Yes.  I believe that more military members will be facing court-martial for drug use under the changes to the UCMJ.  The changes to law have authorized a military “judge alone” court-martial.  If a military member is tried by this type of court-martial the maximum punishment is limited to six months confinement and the court is not authorized to issue punitive discharges.  I believe the services may send more drug cases to a Military Judge Alone court-martial because it is a relatively expeditious way to resolve the case because no court-martial panel (jury) is required.

• If I use a product that contains CBD or marijuana oil; will I test positive?  Yes.  Many of the legal products sold at health food and grocery stores that contain hemp, hemp seeds, hemp oil, CBD or marijuana oil, can result in the presence of tetrahydrocannabinol (THC) in urine.  THC is the metabolite that military drug tests are designed to detect, so any military member using any products made from hemp or marijuana are at risk of testing positive on a UA.  Because many legal off the shelf products are advertised as being free of THC 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” that prohibit the use of hemp products and any derivatives by military members.  Because of these policies a military member who uses a perfectly legal product, even one that is advertised as THC free, will be deemed to have violated the military substance abuse policy if they use any hemp or other product that is derived from marijuana.

• If I am exposed to second hand 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.  That the amount of THC in your system would be too low to cause a positive drug test.  That answer is changing as the strains of marijuana are changed and becoming stronger and purer the concentration of THC is increasing.  New studies are being to suggest that exposure to second hand smoke is a potential cause of a positive drug test given the evolution of marijuana growth practices and the new strains that are available.

• 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 in the Commissary are safe and will not cause a positive test result, right?  No.  As crazy as it sounds, 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 very strict “only for the purpose prescribed” policy as it relates to prescription drug use.  For example, an Air Force member who was prescribed Tylenol 3 (with codeine) for tooth pain related to a root canal was discharged for substance abuse when she took one pill to treat pain for a cracked tooth a few months later.  Even though the prescription stated, “take as needed for mouth pain” the Air Force took the position that the Tylenol 3 was prescribed for one tooth for the root canal and not for the new injury.  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?  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 and won numerous acquittals for clients whose cases where sent to court-martial.  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.