Ask the Lawyer: Legal substances may still carry consequences for troops - Military Law, Military Law Advice, Ask a Lawyer - Air Force Times

Ask the Lawyer: Legal substances may still carry consequences for troops

Lawyer Mathew B. Tully answers your questions.

Q. How does the military handle use of mind-altering substances that aren’t considered illegal by the government?

A substance can be considered legal in the U.S. and still be banned by the military if it is deemed to have an adverse effect on military readiness. Such is the case with substances like salvia divinorum and — until late November — “spice.”

Service members are expected to have a clear head at all times should a situation arise that requires quick thought and action. Use of a substance that inhibits clear and quick thought can put a service member and fellow troops in danger, regardless of whether the substance is considered legal by the government.

Substances such as coffee, alcohol and nicotine are permitted for service members, but the substances we’re talking about can have much more dramatic effects. Salvia divinorum, for example, causes extreme hallucinations, similar to LSD, that effectively take over the body for a short time. Spice — the common name for synthetic marijuana — has virtually the same effect as the real thing.

Use of both substances has been growing among service members and the general public in recent years. Use of salvia is banned in 15 states. Spice had been banned in about as many states — until Nov. 24, when the Drug Enforcement Administration issued a nationwide ban.

The ban is in effect for one year, during which the DEA will work with the Department of Health and Human Services to determine whether it should be permanently placed on the list of federally controlled substances.

Spice is undetectable by urinalysis in some forms. Prior to the DEA’s ban, dozens of troops had been kicked out of the military in recent years for violating Article 92 of the Uniform Code of Military Justice — failure to obey an order or regulation — even though the substance was not technically illegal.

In addition to taking action against service members, the military can and does declare establishments that sell or have sold prohibited substances off limits to service members. An establishment can contest a ban, but once it becomes official, any service member who enters the establishment can be charged under Article 92.

As with illegal drugs and other banned substances, it’s also possible to register a false positive on a urinalysis.

I’ve said it before and I’ll say it again: If you come up “hot” on a drug test, immediately request an attorney and do not give a statement. You have this right under UCMJ Article 31, which prohibits compulsory self-incrimination.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail him questions. The information in this column is not intended as legal advice.