I recently wrapped up a Navy Board of Inquiry (board found no misconduct; returned member to duty) where the officer was alleged to have “wrongfully used a prescription drug.”  During the 8months it took to get this case before a board of inquiry, the officer was transferred from his normal position to a temporary assignment, his next set of orders were cancelled,and his commander requested he be detached for cause.  There was also a report of misconduct placed in his service record.  All of this was based on his self-report, just prior to a urinalysis, that he took a prescription for back pain that he received 8 months prior for . . . . back pain!

As far as I know, only the Army has published a clear lawful order regarding this very gray area of the law – when can a member of the military take a prescription drug that was prescribed to him or her for the ailment that he or she takes the drug? The Army has published a general regulation that states no member can take a prescription after 6 months from the date it was filled.  Period. Regardless of what the label says or the expiration date on the label.

It’s clear under the law that a service member can’t take a prescription:

  1. That wasn’t prescribed to him or her
  2. In an amount greater than what was prescribed (taking a double dose)
  3. In a manner other than it was prescribed (crushing and snorting a pill, for example)
  4. To get high (or as the Navy calls it, to induce “stupefaction”)
  5. For an injury/medical issue other than the one for which it was prescribed (and this is still a bit of a gray area)

But what still remains unclear, after years of litigating these cases, is when can the member (other than members of the Army) self-medicate using an old prescription?  The Navy has recognized this problem for years but has done nothing to resolve it – that is, there is still no clear lawful regulation explaining where the line is drawn.  The Navy has compounded the problem by publishing these info flyers that state it’s wrongful drug to take a prescription after its stated expiration date (the main culprit of this is the 21st Century Sailor office).  Not only is that a misstatement of the law, but it’s contrary to the actual purpose of an expiration date on a prescription.  As an aside, civilian pharmacies don’t use expiration dates but use, “discard by,” “use by,” or “refill by” dates – they are clear regarding what should happen with leftover medication.  In the military, the expiration date is generated administratively, often to establish when a person would be eligible to receive a new prescription – it has no correlation to a provider’s instructions or when a patient can or cannot lawfully take the medication.

But the casualty in the Navy’s failure to draw a line in the sand on the issue – and publish that line to the Fleet – is the individual service member who gets caught in this very gray area.  They often are looking at losing his or her career.  Most commanders don’t understand the nuances with the prescription drugs and focus just on the expiration date.  As stated above, the expiration date is meaningless for purposes of establishing whether use was wrongful.  

If you have a positive drug test for a prescription drug and it is not quickly resolved through a medical review, you need to hire an experienced military law attorney to handle your case. Attorney Patrick Korody offers a free consultation and can be reached at904-383-7261.

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