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Punishments for traditional drugs vs. synthetic

By, Mathew B. Tully

Q. Does the military more harshly punish service members who use traditional
illegal drugs as opposed to synthetic drugs, such as spice?

A. The service branches have zero-tolerance policies for the use of illegal
drugs or the illicit use of prescription drugs. Service members caught using
them are at risk of prematurely ending their military careers. That said, how
the military goes about punishing traditional and synthetic drug abusers is not
exactly the same.

For starters, service members who abuse traditional drugs, such as marijuana,
heroin and cocaine, are usually charged with violating Article 112a of the
Uniform Code of Military Justice. Regardless of the type of drug used, this
offense’s maximum punishments include a dishonorable discharge or bad conduct
discharge and total forfeiture of pay and allowances. But drug types will
influence the maximum confinement period, which is five years for cocaine and
heroin and two years for marijuana.

In contrast, synthetic drug abusers are usually charged with failure to obey
a lawful regulation in violation of Article 92. The only exception to this rule
is contained in a temporary amendment to the Controlled Substances Act, which
proscribes several varieties of spice and thus could be prosecuted under Article
112a. Like the punishments for using marijuana under Article 112a, the maximum
punishments for failure to obey a lawful regulation under article 92 are
dishonorable discharge or bad conduct discharge, total forfeitures, and two
years of confinement. Currently, due to limitations in identifying synthetic
drug compounds, the military is more likely to take alleged traditional drug
abusers to court-martial. At court-martial, where the burden of proof is beyond
a reasonable doubt, prosecutors usually must identify the exact drug  found in a
service member’s blood or urine through laboratory testing.

This task is fairly simple for drugs such as marijuana, but it is extremely
difficult for synthetic cannabinoids because of the way they are made and the
ever-growing list of variants. Further, the services’ crime labs often do not
have the capacity to handle a dramatic increase in specimen testing.

Consequently, commanders may be more inclined to see synthetic drug abusers
go to nonjudicial punishment and, if convicted of an Article 92 violation, later
take actions to have the service member be administratively separated. The legal
burden of proof at a separation board is by a preponderance of evidence, which
is less demanding than court-martial’s beyond-a-reasonable-doubt burden.
Depending on how familiar commanders are with the negative impacts that spice,
bath salts and other synthetic drugs have on people, the service member may
receive an other than honorable or general discharge.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding
partner of Tully Rinckey PLLC ( Email questions to The information in this column is not intended as
legal advice.


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