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Ask the Lawyer: Punishments for traditional drugs vs. synthetic

Oct. 24, 2013 - 08:35PM   |  
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Q. Does the military more harshly punish service members who use traditional illegal drugs as opposed to synthetic drugs, such as spice?

A. The service branches have zero-tolerance policies for the use of illegal drugs or the illicit use of prescription drugs. Service members caught using them are at risk of prematurely ending their military careers. That said, how the military goes about punishing traditional and synthetic drug abusers is not exactly the same.

For starters, service members who abuse traditional drugs, such as marijuana, heroin and cocaine, are usually charged with violating Article 112a of the Uniform Code of Military Justice. Regardless of the type of drug used, this offense’s maximum punishments include a dishonorable discharge or bad conduct discharge and total forfeiture of pay and allowances. But drug types will influence the maximum confinement period, which is five years for cocaine and heroin and two years for marijuana.

In contrast, synthetic drug abusers are usually charged with failure to obey a lawful regulation in violation of Article 92. The only exception to this rule is contained in a temporary amendment to the Controlled Substances Act, which proscribes several varieties of spice and thus could be prosecuted under Article 112a. Like the punishments for using marijuana under Article 112a, the maximum punishments for failure to obey a lawful regulation under article 92 are dishonorable discharge or bad conduct discharge, total forfeitures, and two years of confinement. Currently, due to limitations in identifying synthetic drug compounds, the military is more likely to take alleged traditional drug abusers to court-martial. At court-martial, where the burden of proof is beyond a reasonable doubt, prosecutors usually must identify the exact drug found in a service member’s blood or urine through laboratory testing.

This task is fairly simple for drugs such as marijuana, but it is extremely difficult for synthetic cannabinoids because of the way they are made and the ever-growing list of variants. Further, the services’ crime labs often do not have the capacity to handle a dramatic increase in specimen testing.

Consequently, commanders may be more inclined to see synthetic drug abusers go to nonjudicial punishment and, if convicted of an Article 92 violation, later take actions to have the service member be administratively separated. The legal burden of proof at a separation board is by a preponderance of evidence, which is less demanding than court-martial’s beyond-a-reasonable-doubt burden. Depending on how familiar commanders are with the negative impacts that spice, bath salts and other synthetic drugs have on people, the service member may receive an other than honorable or general discharge.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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