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Ask the Lawyer: Be careful to use prescription drugs as prescribed

Oct. 30, 2011 - 12:21PM   |   Last Updated: Oct. 30, 2011 - 12:21PM  |  
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About the author

Mathew B. Tully is an Iraq War veteran and founding partner of the law firm Tully Rinckey PLLC. Email questions to The information in this column is not intended as legal advice.

Q. I was prescribed a painkiller for a knee injury. I found the meds helped me sleep better so I used them to knock me out on restless nights. I just took a urinalysis and I am wondering, what will happen if it comes back positive?

A. As long as a service member has a valid prescription, a urinalysis that tests positive because of an opioid painkiller, such as morphine, OxyContin or hydrocodone, should not automatically result in a charge of wrongful use of a controlled substance in violation of Article 112a of the Uniform Code of Military Justice.

In such instances, a medical review officer will go over the case to determine whether the use was appropriate or inappropriate.

The problem of prescription drug abuse has reached alarming levels in the armed forces. It used to be that a doctor's prescription slip would have been enough to clear a service member of illicit drug-use charges, but even this practice has changed.

In February, for example, the Army's Office of the Surgeon General announced that soldiers can be found to be illegitimately using prescription drugs if they are taken six months past their dispense date.

The other services also have moved to counter prescription drug abuse. In April, the Marine Corps issued an order that defined "drug abuse" as including the wrongful use of prescription medication "to the extent that it has an adverse effect on performance, conduct, discipline or mission effectiveness, and/or the user's health, behavior, family, or the Marine Corps, or leads to unacceptable misconduct."

Military courts have found wrongful use of prescribed drugs to include mixing them with alcohol and ingesting them in ways not prescribed for example, crushing pills and snorting the powder.

An order issued by the Air Force in January similarly prohibits prescription medications "when used in a manner contrary to their intended medical purposes or in excess of the prescribed dosage."

It is important that prescription drugs taken by service members be recorded in their military health records. That's why, for example, sailors must report to their chain of command all prescription drugs obtained from nonmilitary treatment facilities.

Service members who violate any of these orders can be charged under Article 92 for failure to obey an order.

Service members accused of illicitly using prescription drugs should immediately contact a military law attorney. Depending on the circumstances, an attorney could show how the medicine was taken to address health problems for which it was prescribed, disproving a medical review officer's determination.

Other possible defenses are innocent ingestion or lack of awareness that the drug was not used as prescribed.

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