Article 112a | Wrongful Use, Possession, Distribution of Controlled Substances

Accused of an Article 112a Charge for using, possessing, or selling drugs?  Are you using marijuana to cope with mental health issues?  Don’t go it alone.  Military Law Center can help.

The Manual for Courts-Martial, under Article 112a (10 U.S.C. 912a), prohibits any service member from wrongfully using, possessing, manufacturing, distributing, importing, exporting, or introducing onto an installation illegal drugs.  The government has eight methods to prove a drug case against a service member.

Marijuana is legal in some states, like California.  But military service members can still be arrested, confined, and convicted for using weed, THC9, and marijuana.  Service members can also become the outcast of their unit and labeled a “drug user.”  However, some service members are self-medicating by using marijuana to address health issues of all types, but especially mental health concerns.  The Military Law Center Attorneys want to be part of your rehabilitation and will guide you through the process of facing an Article 112a charge at court martial or mandatory administrative processing for drug abuse at an Administrative Separation Board.

Wrongful drug use, possession, or distribution under Article 112a can be proven by the prosecutor by showing the service member (1) possessed, (2) used, (3) distributed, (4) introduced, (5) manufactured, (6) intended to distribute, (7) imported, or (8) exported a controlled substance.

The prosecution can charge Article 112a in eight ways:

Possession:

1. That the Accused possessed a certain amount of a controlled substance; and 
2. That the possession by the accused was wrongful.

Use:

1. That the Accused used a controlled substance;; 
2. That the use by the accused was wrongful.

Distribution:

1. That the Accused distributed a certain amount of a controlled substance; and
2. That the distribution by the accused was wrongful.

Introduction:

1. That the Accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed forces or under the control of the armed forces a certain amount of a controlled substance; and
2. That the introduction was wrongful.

Manufacture:

1. That the Accused manufactured a certain amount of a controlled substance; and
2. That the manufacture was wrongful.

Wrongful Possession, Manufacture, or Introduction with the Intent to Distribute:

1. That the Accused possessed, manufactured, or introduced a certain amount of a controlled substance; and
2. That the possession, manufacture, or introduction was wrongful; and
3. That the possession, manufacture, or introduction was with the intent to distribute.

Importation:

1. That the Accused imported into the customs territory of the United States a certain amount of a controlled substance; and
2. That the importation was wrongful.

Distribution:

1. That the Accused exported from the customs territory of the United States a certain amount of a controlled substance; and
2. That the exportation was wrongful.

The terms found within the elements above have specific definitions.  The following definitions apply:

Controlled Substance: A controlled substance means amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, and barbituric acid, including phenobarbital and secobarbital.  A controlled substance also means any substance that is included in Schedules I through V established by the Controlled Substances Act of 1970 (21 U.S.C. §812).

Wrongfulness: Wrongfulness means it is down without legal justification or authorization.  Wrongfulness may be inferred in absence of evidence to the contrary. 

Possession, distribution, introduction, or manufacture of a controlled substance are not wrongful when:

1. Done pursuant to legitimate law enforcement activities (such as an informant receiving drugs as part of an undercover operation)
2. Done by authorized personnel in the performance of medical duties
3. Without knowledge of the contraband nature of the substance (such as when a person believes they are possessing sugar, but it turns out to be cocaine)

Possess: Possess means to exercise control of something.  Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides an item in a locker or car to which that person may return to retrieve it.  Possession must be knowing and conscious.  Possession inherently includes the power or authority to preclude control by others.  However, more than one person may possess an item at the same time if they share control.

Use:  Use means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance.  Knowledge of the presence of the controlled substance is a required component of use.  Knowledge of the presence of the controlled substance may be inferred from the presence of the controlled substance in the accused’s body or from other circumstantial evidence.  This permissive inference may be legally sufficient to satisfy the Government’s burden of proof as to knowledge.

Distribute or Deliver:  Distribute means to deliver to the possession of another.  Deliver means the actual, constructive, or attempted transfer of an item, whether or not there exists an agency relationship.

Manufacture:  Manufacture means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin.  It also includes any packaging or repackaging of such substance or labeling or relabeling of its container.  Production includes planting, cultivating, growing, or harvesting of a drug or other substance.

Intent to Distribute:  Intent to distribute may be inferred from circumstantial evidence.

Certain Amount:  When a specific amount of a controlled substance is believed to have been possessed, distributed, introduced, or manufactured by an accused, the specific amount should ordinarily be alleged in the specification.  “Some” or “traces of” or “an unknown quantity of” of a controlled substance may be alleged within the specification and charge.

Customs Territory of the United States:  Customs territory of the United States includes only the States, the District of Columbia, and Puerto Rico.

We understand the complexities of drug offenses and have a history of success defending service members. We also recognize potential underlying mental health issues and fight to get you the treatment you need.

Contact Military Law Center today for a free consultation. We’ll answer your questions, explore your options, and develop a defense strategy to protect your future.

An Article 112a charge can feel career ending and daunting to defend against, but there are defenses available to fight the accusation:

• Ignorance / Mistake of Fact:
  An accused may not be convicted of possession of a controlled substance if the accused did not know that the substance was present under the accused’s control.  However, deliberate ignorance, such as when an accused consciously avoids knowledge of the presence of a controlled substance or the contraband nature of the substance will be treated as if they had actual knowledge.
• Unknowing Use:
  An accused who is unaware of the drug has a defense to wrongful drug use.  This includes a person who never learns where the drug came from.  For example, if a service member drinks out of their glass at a bar but someone else placed a drug into their drink would not be guilty of wrongfully using a controlled substance.  Helpful evidence to contradict the positive urinalysis would include video footage from the bar showing another person drugging the drink.  For example, if a service member drinks out of their glass at a bar but someone else placed a drug into their drink would not be guilty of wrongfully using a controlled substance.  Helpful evidence to contradict the positive urinalysis would include testimony from a peer who noticed that within a certain amount of time from consuming the drink, the service member appeared drugged. 
• Innocent Ingestion:
  Innocent ingestion negates the knowledge element of wrongfulness because the service member did not know they were ingesting a drug.  For example, when a service member consumes a brownie they believed to be store-bought and without drugs, they would have an innocent ingestion defense to wrongful drug use when the brownie actual contains marijuana.

Service members have commonly sought alcohol and recreational drugs to cope with the stressors associated with military service.  Whether combat deployments caused PTSD or a member suffers from other traumas in their life, service members often use marijuana to help cope.  

Service members are punished for coping with marijuana even though it may be a symptom of a mental health issues hiding in plain sight.

Instead of punishing a service member for being unlawful drug use, the Military Law Center advocates for getting clients suffering from mental health issues into treatment.

The maximum punishment for Article 112a is a dishonorable discharge, 15 years confinement, total forfeitures of pay and allowances, reduction in rank to E-1, and other lawful punishments.

The potential penalties for drug possession, use, distribution, introduction, manufacturing, importation, or exportation vary on the seriousness of the offense. A court-martial can impose a range of punishments, including:

• Confinement: 
  The accused may face imprisonment for a specific period determined by the court-martial.
• Reduction in rank: 
  This could involve a demotion to a lower enlisted grade or officer rank.
• Forfeiture of pay and allowances: 
  The accused may lose a portion of their military pay and benefits.
• Bad-conduct discharge: 
  This is a less severe form of separation with a negative characterization, potentially impacting future employment opportunities.
• Reprimand or admonition: 
  These are non-judicial punishments involving official censure of the accused’s actions.

The exact maximum punishment for an allegation of Article 112a, UCMJ will depend on how the government presents its case and how many separate specifications the accused is facing.  Our attorneys at the Military Law Center can help provide a maximum punishment for your case during a free consultation.

The military has the option of charging an accused with unlawful drug use at a court martial or choosing to use the administrative separation board process.  All military services prohibit drug use and are required to address wrongful drug use as it relates to employment.  An ADSEP Board for drugs is a more challenging environment for an accused to win because the burden of proof is far lower than that required at a court martial.  

Despite the easier burden for the government, attorneys at the Military Law Center have successfully defended service members facing allegations of drug abuse.  By strategically planning a defense and critically analyzing the evidence, our ADSEP Board lawyers can help get your military career back on track.

The moment a positive urinalysis under Article 112a comes back to the command, service members with security clearances (SECRET, TS/SCI) will likely get notified their security clearance has been revoked.  Alternatively, they may receive a Request for Supplemental Information (RSI) from the Defense Counterintelligence and Security Agency (DSCA).  DSCA is required to review unauthorized use of illegal drugs and drug activity pursuant to DoDM 5200.02.

As any response to DSCA may be used against a service member later at an ADSEP Board or court martial, it is paramount to consult with a qualified military law attorney with experience with security clearance issues.  Effective responses to a request for supplemental information will use the 2017 National Security Adjudicative Guidelines, Security Executive Agent Directive 4.

An Article 112a arrest and conviction can have devastating consequences beyond the courtroom. It can damage your reputation within the military, stall your career progression, and potentially hinder future job opportunities in the civilian sector.  

Additionally, service members may be precluded from ownership, receipt, or transport of any firearm that has been transported in interstate or foreign commerce under 18 U.S.C. § 922(g) when:

1. The accused receives a conviction for unlawful drug use
2. General court martial conviction where the accused could have received a Dishonorable Discharge
3. General court martial conviction where the accused could have received more than one year confinement.

Note: the law does not require that the accused receive a dishonorable discharge or more than one year of confinement.  That type of punishment just needed to be on the table.

Facing an Article 112a accusation can be frustrating, stressful, and sometimes an embarrassing experience. At Military Law Center, our attorneys understand the challenges you’re facing, and we’re here to help. Here’s what sets us apart:

• Experienced Military Defense Lawyers:
  Our team is comprised of former military judge advocates (JAGs) with a deep understanding of military law and the UCMJ. We’ve successfully defended countless service members facing all kinds of allegations, and we know how to litigate the complexities of military justice from start to finish.
• Personalized Attention:
  We care for every client as an individual. We’ll take the time to understand your specific situation and develop a personalized defense strategy, to include rehabilitation options, designed to achieve the best possible outcome.
• Aggressively Protecting Your Rights:
  We’re committed to fighting for your rights and ensuring you receive fair treatment throughout the legal process. We’ll explore all available defenses and work tirelessly to protect your career and reputation.
• Clear Communication:
  We understand legal terms can be confusing. We’ll keep you informed about the progress of your case and explain everything in clear, understandable terms.
• Free Consultation:
  We offer a free consultation to discuss your situation and answer any questions you may have. This allows you to make informed decisions about your defense strategy.

Don’t Face Article 112a Allegations Alone. Military Law Center Can Help.

An Article 112a charge can take away your gun rights, stall your military career, and damage your personal and professional reputation. But you don’t have to fight by yourself. Military Law Center has a proven track record of successfully defending service members facing the most serious charges and getting them the rehabilitative help they need. Our experienced military law attorneys understand the military justice system and will work tirelessly to protect your rights and achieve the best possible outcome for your case. 

Contact Military Law Center today for a free consultation.
We’ll stand by your side and fight for you.

Call Us Today – (760) 536-9038