When I first joined the Navy JAG, it was common to see courts-martial where the sole charge was a violation of Article 112a, UCMJ, for wrongful drug use. We called these “single spec pop” cases because the case involved a single specification (charge) based on a positive urinalysis drug test (hence the “pop”). Over the past 12 years, a lot has changed.
“Single spec pop” courts-martial are extremely rare these days for many reasons. The first is that it just became too darn hard to court-martial these types of cases. Savvy defense counsel raised a litany of motions regarding the testing procedures used by the military drug labs and limited the testimony that could be elicited by a “drug lab expert” witness at trial. Defense counsel also became better at developing defense strategies such as unknowing or innocent ingestion. And, perhaps practically most important, trial defense counsel, though lawfully, made these cases drag out and expensive for commands.
Possessing or using marijuana (weed) is still illegal under the UCMJ. This prohibition applies anywhere, anytime.
Sentences in drug use courts-martial also became much softer. While a Bad Conduct Discharge was almost certain upon conviction for wrongful drug use at one time, jury members (called only “members” in a court-martial) and/or the military judge began giving out non-judicial punishment (NJP) type punishment and no punitive discharge at a court-martial for these cases. While the actions of the members and judges may be more reflective of societal changes (for example, the legalization of marijuana in some states), it left the feeling among staff judge advocates and commanders that going through the lengthy, and often taxing, court-martial process resulted in the same punishment had the commander simply imposed NJP. Moreover, without an adjudged punitive discharge – like the Bad Conduct Discharge – the commander, even with the court-martial conviction, still had to convene an administrative separation board. The end result was that commands were spending significant time and resources at court-martial to get a result that, albeit a good result for the Sailor, Marine, or Soldier, was bad for the business of court-martialing. In a system where commanders decide whether or not to court-martial and must expend unit resources for a court-martial, the costs of doing the court-martial quickly began to outweigh any benefit to good order and discipline. Most positive urinalysis cases today proceed to NJP and/or administrative separation quickly.
I am still defending members of the military for other offenses under Article 112a including possession with or without the intent to distribute, although most minor possession cases these days are also handled through NJP and administrative separation. Introduction of drugs onto a military installation for distribution and distribution are almost a guaranteed court-martial.
The military still boasts a zero tolerance drug use policy, though a criminal conviction is no longer commonly sought for simple drug use cases. That doesn’t mean drug use won’t end a military career – it commonly does. In fact, because the burden of proof at a court-martial is much higher than that at an administrative separation board, a member of the military had a better chance of staying in the military following a positive urinalysis if they were sent to a court-martial.
If you tested positive for drugs on a military drug test, are being investigated for a drug-related offense, or have been charged at court-martial for drug use, possession, introduction, or distribution, contact Korody Law at 904.383-7261 for a free case evaluation. Mr. Korody has represented military members facing drug charges at Special and General Courts-Martial for more than a decade.