UCMJ Article 112a: Wrongful Use, Possession, etc. of Controlled Substances

Drug offenses in the military are addressed under Article 112a of the UCMJ. According to the article itself, “Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial shall direct.”

Subsection (b), mentioned above, explicitly lists these illegal substances; opium, heroin, cocaine, amphetamine, lysergic acid diethylamide (acid/LSD), methamphetamine (meth/crystal meth), phencyclidine (angel dust), barbituric acid, marijuana, and any of their compounds or derivatives. Subsection (b) also includes any substances listed on a schedule of controlled substances prescribed by the President, as well as those listed in Schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

It is important to note that, to be punished under this article, the servicemember’s action must be wrongful. Wrongfulness is defined as without legal justification or authorization. The article itself describes three circumstances in which possession, use, distribution, introduction, or manufacture is not wrongful and include:

1. If under legitimate law enforcement activities (i.e., informants)

2. If done by authorized personnel in performance of medical duties

3. If without knowledge of the contraband nature of the substance (i.e., the person who possesses cocaine but believes it to be sugar)

In the case of circumstance (3), the activity may be inferred to be wrongful in the absence of contrary evidence, and the burden to prevent this evidence is on the accused servicemember. Suppose this evidence is presented that the charged servicemember did believe the substance was not illegal. In that case, the burden is on the United States to prove that the accused service member’s actions were wrongful.

Maximum Possible Punishments for Violations of Article 112a

The maximum punishment, according to UCMJ Article 112a, varies depending on the controlled substance at issue and the activity/status of the servicemember when their use, possession, manufacture, or introduction of the controlled substance occurred. The amount of controlled substance involved also has a bearing on the maximum punishment allowed.

For example, for the wrongful use, possession, manufacture, or introduction of amphetamine, cocaine, heroin, LSD, methamphetamine, opium, phencyclidine, secobarbital, marijuana (except use or possession of less than 30 grams) and Schedules I, II, and III controlled substances, the maximum allowed punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years.

By comparison, wrongful use, possession, manufacture, or introduction of marijuana (possession of less than 30 grams or use), phenobarbital, and Schedules IV and V controlled substances involve a maximum allowable punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years.

The military will come down much harder on servicemembers who engage in wrongful distribution, possession, manufacture, or introduction of controlled substances with the intent to distribute or wrongfully import or export a controlled substance rather than on those who are only users.

For example, servicemembers who deal with controlled substances, as stated in the previous paragraph, face the maximum allowable punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years. This is for dealing in amphetamine, cocaine, heroin, LSD, methamphetamine, opium, phencyclidine, secobarbital, marijuana (no matter the amount), and Schedules I, II, and III substances. Dealing in phenobarbital and Schedules IV and V controlled substances can result in a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

When any offense under Article 112a is committed. The accused servicemember is on duty as a sentinel or lookout on board a military aircraft or vessel, in or at an army missile launch facility, receiving special pay under 37 U.S.C. § 310 (hostile fire/imminent danger), in time of war, or a military confinement facility, five years will be added to the maximum confinement period stated in the above paragraphs.

Understanding Article 112a of the UCMJ

Drug offenses under the UCMJ usually consist of two base elements. One of these elements is always that the accused’s actions were wrongful. The government must prove all elements beyond a reasonable doubt to charge a service member with a drug offense. For example, wrongful use of a controlled substance contains the following elements:

1. That the accused used a controlled substance; and

2. That the use by the accused was wrongful.

In the above example, “used” can be replaced with “possessed,” “distributed,” “introduced,” “imported,” “exported,” or “manufactured” based on the servicemember’s activity. For wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute, a third element is required. This crime’s total elements would therefore include:

1. That the accused (possessed), (manufactured), (introduced) a certain amount of a controlled substance; and

2. That the (possession), (manufacture), (introduction) was wrongful; and

3. That (possession), (manufacture), (introduction) was with the intent to distribute.

It is also important to note that when any aggravating circumstances are alleged, such as the service member receiving hostile fire pay or on a military vessel at the time of the offense, they must also be listed as an element.

How do you defend against Article 112a charges for Drug Offenses?

When you are facing the combined resources of the military as well as the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys who have won these cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected former Army JAG with over 23 years of experience in military law and a sought-after speaker and lecturer on martial law. Donald Gordon has litigated cases before the Discharge Review Board, the Board for Correction of Military Records, and the Board for Correction of Naval Records regarding various matters and a diverse background of clients.

If you or someone you know is facing Article 112a charges for drug offenses, you need to speak with a Military defense attorney right away. Please call Crisp and Associates Military at 888-347-1514 for a free consultation.