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

When it comes to illegal drugs, the U.S. military has a zero-tolerance policy.  Pursuant to Article 112a of the Uniform Code of Military Justice (UCMJ), anyone who wrongfully possesses, uses, manufactures, imports, or distributes certain controlled substances can be court-martialed and face up to fifteen years in confinement, among other issues.

Article 112a of the Uniform Code of Military Justice

 The text of Article 112 of the UCMJ provides, in full, as follows:

  • 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 may direct.
  • The substances referred to in subsection (a) are the following:
  • Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.
  • Any substance not specified in clause (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of this article.
  • Any other substance not specified in clause (1) or contained on a list prescribed by the President under clause (2) that is listed in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

Elements of the Offense for Article 112a

As can be seen from the above text, drug offenses under Article 112a consist of the following two (and sometimes three) elements:

  1. The accused either used, possessed, manufactured, distributed, imported, exported, and/or introduced a controlled substance;
  2. The accused’s actions were wrongful; and
  3. For wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute, it must also be proved that the possession, manufacture, and/or introduction was with the intent to distribute the controlled substance. 

All elements of an offense must be proved by the government beyond a reasonable doubt.

An action is wrongful if it is “without legal justification or authorization.” Wrongfulness is presumed in “the absence of evidence to the contrary.”  This means that the burden of proof is on the servicemember to prove that their actions were not wrongful. If the servicemember introduces evidence that would prove that their conduct was not wrongful, then the burden of proof shifts back to the government to establish that the conduct was wrongful.

According to the Manual for Courts-Martial, specific examples of actions that are not wrongful would include those that are done:

  1. Pursuant to legitimate law enforcement activities (thus, an informant possessing drugs as part of an undercover operation is not in wrongful possession);
  2. By authorized personnel in the performance of medical duties; and/or
  3. Without the knowledge of the contraband nature of the controlled substance (thus, a person who possesses cocaine but mistakenly believes it is sugar).

To “possess” as used in Article 112a means to exercise control of something.  This may be by direct physical custody, such as holding an item in your hand, or it may be through a concept known as constructive possession, such as when a person keeps an item in a safe or car where they can return to retrieve it.  Possession must be knowingly and consciously.  Thus, a person cannot be convicted for possessing a controlled substance if they did not know that the substance was present and under their control. Awareness of the presence of a controlled substance, however, can be inferred from circumstantial evidence. Although possession includes the right to preclude others from controlling the item, it is also possible for more than one person to possess something (such as when several people control an item).

With respect to “intent to distribute,” this may also be inferred from circumstantial evidence, which could include: possessing more than would be likely for personal use; the market value of the substance; the manner in which the substance is packaged; and/or whether or not the accused is a user of the substance.  Evidence that the servicemember is addicted to, or is a heavy user of the substance, may be used to negate the presumption of an intent to distribute.

Potential Punishments for Violating Article 112a

The potential punishments for Article 112a will vary depending on: 1) the type of controlled substance at issue; 2) the amount of controlled substance at issue; and 2) the activity of status of the service member when the activity occurred.

  • The use, possession, manufacture and/or introduction of the following substances can result in dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years:
    • Possession or use of less than 30 grams of marijuana;
    • Phenobarbital; and
    • Schedule IV and V controlled substances (such as Xanax, Soma, Darvon, Darvocet, Valium, Ativan, Talwin, Ambien, Tramadol, cough preparations with less than 200 milligrams of codeine or per 100 milliliters (Robitussin AC), Lomotil, Motofen, Lyrica, and Parepectolin).
  • The use, possession, manufacture and/or introduction of the following substances can result in dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years:
    • Amphetamine;
    • Cocaine;
    • Heroin;
    • Lysergic acid diethylamide;
    • Marijuana (except for possession or use of less than 30 grams of marijuana);
    • Methamphetamine;
    • Opium;
    • Phencyclidine;
    • Secobarbital; and
    • Schedule I, II, and II controlled substances (such as ecstasy, methaqualone, peyote, vicodin, methadone, hydromorphone (dilaudid), meperidine (demerol), oxycodone (OxyContin), fentanyl, dexedrine, adderall, ritalin, products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, and testosterone).
  • The intent to distribute and/or the importation or exportation of the following substances can result in dishonorable discharge, forfeiture of all pay and allowances and confinement for 10 years:
    • Phenobarbital; and
    • Schedule IV and V controlled substances (such as Xanax, Soma, Darvon, Darvocet, Valium, Ativan, Talwin, Ambien, Tramadol, cough preparations with less than 200 milligrams of codeine or per 100 milliliters (Robitussin AC), Lomotil, Motofen, Lyrica, and Parepectolin).
  • The intent to distribute and/or the importation or exportation of the following substances can result in dishonorable discharge, forfeiture of all pay and allowances and confinement for 15 years:
    • Amphetamine;
    • Cocaine;
    • Heroin;
    • Lysergic acid diethylamide;
    • Marijuana;
    • Methamphetamine;
    • Opium;
    • Phencyclidine;
    • Secobarbital; and
    • Schedule I, II, and II controlled substances (such as ecstasy, methaqualone, peyote, vicodin, methadone, hydromorphone (dilaudid), meperidine (demerol), oxycodone (OxyContin), fentanyl, dexedrine, adderall, ritalin, products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, and testosterone).

Finally, the maximum period of confinement for any of the above offenses will be increased by five years if the accused commits the offense while:

  • On duty as a sentinel or lookout;
  • On board a vessel or aircraft;
  • In or at a missile launch facility;
  • Receiving special pay under 37 U.S.C. § 310 (hostile fire/imminent danger);
  • In a time of war; and/or
  • In a confinement facility.

Defenses to Article 112a

 Drug charges have the potential to destroy military careers and futures, regardless of whether the offense is charged as simple possession or possession with the intent to distribute. An experienced military defense lawyer will carefully review your case in order to determine which defenses can be raised.  For example, the military defense lawyers at Brett O’Brien Law will carefully review every drug case to determine:

  • Whether the case was properly handled by law enforcement. Law enforcement officials make mistakes and cut corners much more often than most people realize.  Any of the following areas can provide a valid defense to your case: whether there were illegal searches and/or seizures; whether any sting operations were lawfully carried out; and whether evidence, such as drugs or drug testing was properly handled.
  • Whether the substance at issue is actually a controlled substance. Not only does the government need to show that the substance at issue is in fact a controlled substance, but it also needs to submit valid proof of the same, along with certifications with respect to testing. Often, these requirements can form the basis of a valid defense.
  • Whether your possession, use, manufacture, distribution, importation, or exportation of the substance was wrongful. The central defense to most Article 112a cases is the requirement that use, possession, distribution, etc. be “wrongful.”  Thus, if you were taking the substance under a valid prescription or pursuant to some other authorization, you could have a valid defense.  In addition, as discussed above, a person cannot be convicted for possessing and/or using a controlled substance if they did not know that the substance was present, under their control, or of the contraband nature of the substance.  Knowledge is a very high legal standard.  Thus, particularly in positive drug testing cases, evidence of unknowing or innocent ingestion can serve as a valid defense.

Nationwide Military Defense Lawyers

If you are charged with violating Article 112a, contact an experienced military defense lawyer today.  At Brett O’Brien Law, we  have defended servicemembers facing courts-martial for Article 112a offenses and we will ensure that all avenues of defense are pursued in your case.

Moreover, our military defense lawyers are here to assist you, regardless of where you are currently located.

Call us today at (202) 600-4996 for a free consultation.

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