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Marijuana Legalization and the Military

With twenty-three states now permitting marijuana use in some form, questions abound regarding the implications for military justice.

For Active Duty servicemembers the answer is clear, and your UA must be too.  In or out of uniform, if the service is your day-job, the UCMJ applies 24/7, and as long as marijuana remains on the federal schedule of controlled substances, possession or use will be a prosecutable (or more often separable) offense.  It doesn’t matter whether you have a doctor’s note, a “green card” or you were just holding it for your spouse.  In fact, any such admissions could likely be used as evidence demonstrating your knowledge of the use or possession.

For the National Guard (NG) and Reserve Component (RC) members not on orders, the answer is less clear.  Guardsmen and women are subject to their state equivalent of the UCMJ under different circumstances, and some “legalization” states such as Washington have specifically prohibited use by those serving in the Guard.  For federal Reservists and NG that are not subject to state-specific prohibitions, the government would be required to show evidence that the use or possession happened while in the line of duty, or that the Soldier was still under the influence when reporting for duty.  The former would essentially require the user to be caught in the act.  The latter would rely on a subjective test since current testing methods are not capable of discerning intoxication in the same way that a BAC provides a relatively objective standard.

In the usual case, a user would draw the scrutiny of command by coming up “hot” for THC during a Urinalysis (UA) screening.  For those not on Active Duty, it is unclear whether separation would inevitably follow.  AR 135-178 Chapter 12-1d prescribes discharge for abuse of illegal drugs or alcohol.  The conflict of state and federal laws provides fertile ground for argument that the terms “abuse” and “illegal” are both non-applicable since the use was presumably at a time the member was not subject to federal law.

Nonetheless, the debate over whether this loophole might salvage one’s career is largely academic.  In all likelihood, the separation authority will read the term “illegal” in the context of the federal Controlled Substances Act, and so long as the drug in question is deemed illegal, “abuse” is read as one-time use. (To a lawyering mind, if the regulation intended separation for one-time use, it should have been written to say “use of illegal drugs or abuse of alcohol”, nonetheless this battle has been fought and lost.)  Furthermore, even if convinced that separation should not proceed on these grounds, one would almost certainly be issued a General Officer Memorandum of Reprimand (GOMOR) and suffer the attendant consequences.   Additionally, one could still logically be “Chaptered” (Administratively Separated) for Substance Abuse Rehabilitation Failure (e.g. AR 135-178 Chapter 11), however this requires that the Soldier be enrolled in a treatment program, which, as a practical matter, rarely happens in the RC.

Military retirees present another interesting case.  Those drawing a federal pension are still generally subject to the UCMJ.  Nonetheless, it is hard to imagine a scenario in which an average retiree makes his or her way onto the military justice radar screen, and it would take a particularly bored and tone-deaf prosecutor to charge a 70-year old veteran for smoking a joint.

In November the Senate passed a provision allowing VA physicians to recommend – although not prescribe medical marijuana.  Nonetheless, the House and final version of the legislation removed this language. <http://www.military.com/daily-news/2015/12/17/house-strips-medical-marijuana-provision-from-va-legislation.html>  While the VA is still legally prohibited from prescribing medical marijuana to patients, retirees shouldn’t need to worry about being reported to the military by their VA doctor.  Those who receive treatment through the Department of Veterans Affairs may be asked for blood or urine in the course of routine care, but use of these samples is limited to diagnosis purposes and cannot be used for the purpose of law enforcement.  

As reported in Stars & Stripes:  “VA is aware that some veterans who reside in states with marijuana programs and who also receive care in VA, do indeed participate in marijuana programs,” spokeswoman Gina Jackson wrote in a statement. “Given the differences between state and federal laws regarding marijuana, a veteran’s decision to participate in a state marijuana program is a personal one and not one dictated administratively by VA.” <http://www.stripes.com/news/retirees-unlikely-to-face-ucmj-charges-for-smoking-legal-pot-1.292972>

In sum, if you’re a retiree or receiving VA benefits, you’re unlikely to face repercussions from marijuana use in accordance with state law.  For Active Duty, legalization in your state is irrelevant.  For Guard and Reserves, there is some gray area, but don’t look for attitudes of your commanders to change any time soon.  Legal fine-points aside, do you really want to be a test-case?