Article 112a

The Uniform Code of Military Justice outlines penalties against service members caught in violation of Article 112a, the section that deals with illegal narcotic possession and/or distribution.

Article 112a UCMJ violations are severe, often resulting in demotion, dishonorable discharge, and even prison time. Getting a head start on your legal defense is essential if you are accused of an Article 112a violation.

Here, Conway & Associates has compiled a comprehensive resource for Article 112a, including a general overview, penalties, common defenses, and recent changes to rules and guidelines.

If you or a servicemember you know is the target of a military discharge for drug use, it’s time to contact Daniel Conway & Associates to start your legal defense now!

Overview of Article 112a

Article 112a of the Uniform Code of Military Justice (UCMJ) explicitly prohibits the wrongful use, possession, distribution, introduction, or manufacture of controlled substances by military personnel.

All substances listed under the Controlled Substances Act are covered under Article 112a. These include, but are not limited to:

• Cannabis / Marijuana
• Synthetic Cannabinoids
• Cocaine
• Heroin
• Fentanyl
• Methamphetamine
• LSD
• Ecstasy (MDMA)
• Prescription medications
• Manufactured designer drugs

Service members found possessing or using any of these substances are immediately subject to prosecution under Article 112a.

Types of Offenses Listed Under Article 112a

Under UCMJ Article 112a, several different offenses can result in prosecution against service members. The following can apply to service members who are both on and off duty:

Possession

Possession entails having physical control or custody of a controlled substance. The UCMJ describes possession in two ways:

• Actual possession: The controlled substance is found directly on the service member’s person, including in their body, clothes, or bag/carrier.
• Constructive Possession: The controlled substance is found in a location the service member controls or has direct access to, including lockers, rooms, bunks, and more.

An example of “actual possession” might be military personnel being caught with a baggie of cocaine in their boot during a uniform inspection. The drugs on his person can be construed as evidence for possession of a controlled substance.

On the other hand, a service member caught with cocaine in her locker can be found guilty of possession despite not having the substance on her person. Since she had temporary ownership and control over the locker, it counts as being in possession of the narcotic. This is an example of “constructive possession.”

Use

Use of narcotics without authorization in the military is also strictly prohibited under UCMJ Article 112. The doctrine describes “use” of a controlled substance as the “knowing and wrongful consumption, injection, inhalation, or ingestion.”

The key elements of use under Article 112 include:

• Knowledge: The service member had demonstrable information that they were using or were about to use a controlled substance.
• Wrongfulness: Use of the controlled substance was unauthorized, meaning the narcotic was not prescribed by a medical provider or otherwise justified by orders from a superior officer legitimately empowered by the government.

For example, smoking marijuana recreationally is considered a violation of Article 112a. However, having a medical prescription may permit the service member to consume THC in controlled quantities. It all depends on who authorized the use and if the usage was legitimate.

Distribution

Distribution under the UCMJ entails the transfer of a controlled substance from one person to another.

Selling, giving, sharing, trading, or any act that delivers drugs from at least one party to another is punishable as distribution. It does not matter whether or not any form of currency was exchanged in the process.

However, there are a few key aspects of distribution to consider:

• The act must have been knowing and intentional.
• The quantity of the controlled substance doesn’t matter.
• It doesn’t matter if service members profited from the act.
• Circumstantial evidence can be used to prove that the act occurred.

For example, a service member gives his squadmate a line of cocaine at an off-base party. Even though he didn’t profit, the act still counts as a punishable form of distribution.

Introduction

Under Article 112a, introduction refers to knowingly bringing a narcotic or controlled substance into any area under military control. This includes military installations and bases, vessels, aircraft, vehicles, buildings, or controlled zones.

Just like the previous violations, the act of introduction must be done knowingly and intentionally. Additionally, distribution or use of the substance is not required to be punished for introduction under UCMJ 112a.

Import/Export

Without a doubt, the most serious violation of Article 112 UCMJ is the import/export of a controlled substance in or out of the United States.

Unlike the previous violations, import/export charges imply the intent to distribute typically large quantities of a controlled substance.

Key aspects of import/export charges include:

• Importation: Bringing or delivering a narcotic into the U.S. from a foreign country.
• Exportation: Bringing or delivering a narcotic out of the U.S. into a foreign country.

All import/export charges must demonstrate that the act was done knowingly and intentionally, along with distributional intent.

Penalties for Article 112a Violations

The penalties for violations of UCMJ Article 112a are understandably severe. The military has to engender discipline and safety amongst its ranks, with narcotics being one of the main threats to accomplishing this goal.

The maximum Article 112a punishments for violations include but are not limited to:

• Use or Possession

• • 5 years imprisonment
  • Dishonorable discharge
  • Rank reduction
  • Elimination/forfeiture of pay and/or allowances

• Distribution or Intent to Distribute

• • 15+ years imprisonment

• Import/Export or Manufacture

• • 20+ years imprisonment

Service members violating Article 112a may face collateral penalties in addition to judicial, including:

• Forfeiture of VA benefits
• Limited civilian employment opportunities
• Security clearance revocation
• Reenlistment ineligibility

Punishments for drug possession on a military base can be life-altering. Contact Daniel Conway & Associates today.

Common Defenses Against Drug Charges

Military and civilian lawyers alike employ many of the same defense strategies for Article 112a drug charges:

1. Lack of knowledge – Convincingly demonstrate that your consumption or possession of a controlled substance was done unknowingly. An example would be eating a THC candy without knowing it contained cannabis.
2. Involuntary consumption – The defendant unknowingly consumed a controlled substance due to the actions of another, such as having something slipped into their drink at a party.
3. Errors Testing for the Substance – Challenging the accuracy or validity of urinalysis and other drug analysis tests. This can target faulty procedures, potential cross-contamination, or chain of custody issues.
4. No Probable Cause – If possession was determined after an illegal search or seizure, the charges may be thrown out due to Fourth Amendment protections.
5. Entrapment – An exceedingly rare defense, this requires proving that government agents coerced or induced the defendant to commit the violation against their normal behavior.

Every defense strategy needs to be as unique as the defendant at hand. What works for one service member might not work for another. Contact Conway & Associates to start strategizing your legal defense today.

Military Drug Testing Procedures

The military has very strict drug testing procedures stemming from the extensive Drug Demand Reduction Program (DDRP), designed to track and prevent illicit UCMJ drug use. The mandatory testing is completely random without prior-determined probable cause.

Key elements of military drug testing include:

• Random Urinalysis
• Command-Directed Testing
• Probable Cause Testing
• Consent Testing

Collected samples undergo special screening at DOD-certified laboratories for illicit and legal substances alike.

What to Do If Charged Under Article 112a

Whether or not a service member takes the following steps will determine the strength of their legal defense and potentially, the course of their life. 

• Invoke the right to remain silent – Avoid any statements to your commanders or military/government investigators without the presence of your legal counsel.
• Request legal representation, military or civilian – You are entitled to free legal defense provided by the military. However, you can also pay out of pocket for a civilian defense team.
• Preserve evidence – There may be evidence that speaks in your favor in your phone, computer, mail, or elsewhere. Be sure to preserve as much evidence in your defense as you can.
• Follow orders – Keep complying with lawful orders, remaining professional and attentive even through your legal defense. 

Even without a formal court-martial, your commander may initiate administrative separation proceedings, especially for a first-time offense.

Recent Trends and Policy Changes

Despite shifting attitudes towards the criminalization of drugs and broader changes to public perception regarding THC and CBD, the military still maintains a zero-tolerance policy.

Notably, there has been an increased push to fund rehabilitation and diversion programs, integrating mental health considerations into more policy-making decisions than in years past.

However, most service members still face severe punishment after being caught for any violation of Article 112a.

CBD/THC Confusions: Military Policies on CBD and Accidental THC Exposure

Despite CBD’s legality in many states and towns, the military still maintains a zero-tolerance policy for any form of cannabinoid use. As per DoD Policy put forward in February 2020, consumption of hemp or CBD products is strictly prohibited, despite perceived THC content.

Military personnel are advised to steer clear of any cannabinoid products to avoid the pitfalls of legal grey areas in the UCMJ.

Psychedelics in the Military: Emerging Issues with Substances like Psilocybin

Psychedelics like psilocybin (magic mushrooms) are gaining traction in the civilian sphere as valid treatment for a range of mental health issues, including depression, anxiety, and PTSD.

Despite growing acceptance, most psychedelics remain strictly prohibited under UCMJ legal doctrine. Psilocybin remains a Schedule I substance, meaning you can be prosecuted if a service member tests positive or it is found in their possession.

However, some veteran organizations are pushing for using psilocybin as a treatment for veterans suffering from mental health issues.

At present, all service members are advised to avoid any psychedelic use until military policy changes.

2023 NDAA Updates: Any Reforms to Drug Offense Handling and Sentencing

The 2023 National Defense Authorization Act (NDAA) didn’t drastically overhaul Article 112a, but it did include some changes that may influence drug-related enforcement and adjudication.

Notable provisions include:

• Increased funding for substance abuse programs.
• Pilot programs for behavioral health diversion.
• Enhanced data collection on drug discharges.
• Calls for policy review on cannabis and CBD products.

These changes signal a changing approach to drug-related issues in the military, though the core of 112a remains intact.

Call Conway & Associates Today for Article 112a Defense

If you or a service member you know is worried about potential Article 112a charges, you need to contact Daniel Conway & Associates immediately.

We can start strategizing a drug charges legal defense based on your unique situation and start collecting evidence in your favor before it disappears.

Call Conway & Associates today for experienced Article 112a legal defense today!