Article 112: Punitive Articles of the UCMJ

Wrongful Use and Possession of Controlled Substances

Controlled Substance Test

Any person subject to this Uniform Code of Military Justice (UCMJ) offense wrongfully uses, possesses, manufactures, distributes, imports or exports into/from the customs territory of the United States. Or a military member who introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces the following substances shall be punished as a court-martial may direct.

(1) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana, and any compound or derivative of any such substance.
(2) 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.
(3) 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).”

The accused must be wrongfully possession, using, distributing, introducing, manufacturing, importing and exporting illegal drugs or controlled substances. The following rules with regard to these substances are fully explained:

(1) Wrongful possession of controlled substance.

(2) Wrongful use of controlled substance.

(3) Wrongful distribution of controlled substance.

(4) Wrongful introduction of a controlled substance.

(5) Wrongful manufacture of a controlled substance.

(6) Wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute.

(7) Wrongful importation or exportation of a controlled substance.

What is a Controlled Substance?

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

Possess. “Possess” means to exercise control of something. Possession may be direct physical custody like holding an item is 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. It is possible, however, for more than one person to possess an item simultaneously, as when several people share control of an item.

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. Awareness of the presence of a controlled substance may be inferred from circumstantial evidence.

Distribute. “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, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container. “Production,” as used in this subparagraph, includes the planting, cultivating, growing, or harvesting of a drug or other substance.

Wrongfulness. To be punishable under Article 112a, possession, use, distribution, introduction, or manufacture of a controlled substance must be wrongful. Possession, use, distribution, introduction, or manufacture of a controlled substance is wrongful if it is without legal justification or authorization. Possession, distribution, introduction, or manufacture of a controlled substance is not wrongful if such act or acts are: (A) done pursuant to legitimate law enforcement activities (for example, an informant who receives drugs as part of an undercover operation is not in wrongful possession), (B) done by authorized personnel in the performance of medical duties; or (C) without knowledge of the contraband nature of the substance (for example, a person who possesses cocaine, but actually believes it to be sugar, is not guilty of wrongful possession of cocaine).

Possession, use, distribution, introduction, or manufacture of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. The burden of going forward with evidence with respect to any such exception in any court-martial or other proceedings under the code shall be upon the person claiming its benefit. If such an issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that the use, possession, distribution, manufacture, or introduction was wrongful.

(Intent to distribute. Intent to distribute may be inferred from circumstantial evidence. Examples of evidence which may tend to support an inference of intent to distribute are: possession of a quantity of substance in excess of that which one would be likely to have for personal use; market value of the substance; the manner in which the substance is packaged; and that the accused is not a user of the substance. On the other hand, evidence that the accused is addicted to or is a heavy user of the substance may tend to negate an inference of intent to distribute.

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. It is not necessary to allege a specific amount, however, and a specification is sufficient if it alleges that an accused possessed, distributed, introduced, or manufactured “some,” “traces of,” or “an unknown quantity of” a controlled substance.

 Customs territory of the United States. “Customs territory of the United States” includes only the States, the District of Columbia, and Puerto Rico.

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.

Deliberate ignorance. An accused who consciously avoids knowledge of the presence of a controlled substance or the contraband nature of the substance is subject to the same criminal liability as one who has actual knowledge.

(1) Wrongful use, possession, manufacture, or introduction of controlled substance.

Drugs - Dishonorable discharge, forfeiture of all pay and allowances, and confinement 5 years. (Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances.)
Marijuana - Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

(2) Wrongful distribution, possession, manufacture, or introduction of controlled substance with intent to distribute, or wrongful importation or exportation of a controlled substance.

(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
(b) Phenobarbital and Schedule IV and V controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. When any offense under paragraph 37 is committed; while the accused is on duty as a sentinel or look-out; on board a vessel or aircraft used by or under the control of the armed forces; in or at a missile launch facility used by or under the control of the armed forces; while receiving special pay under 37 U.S.C. § 310; in time of war; or in a confinement facility used by or under the control of the armed forces, the maximum period of confinement authorized for such offense shall be increased by 5 years.
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