The stakes are now much higher for service members who test positive for designer drugs such as spice, a smokeable herbal product with psychoactive and hallucinogenic effects similar to marijuana.
Until recently, service members could legally obtain these substances that mimic the psychotrophic effects of marijuana and lysergic acid diethylamide (LSD). But on March 1, 2011 the U.S. Drug Enforcement Administration (DEA) temporarily classified five chemicals used in spice products as Schedule I controlled substances. This one-year scheduling action (with a possible six-month extension) made it illegal to possess and sell spice and other similar synthetic designer drugs.
Consequently, the scheduling action also makes the possession, distribution, and use of these substances a crime punishable under Article 112a of the Uniform Code of Military Justice. Article 112a is generally used for offenses involving marijuana, methamphetamine, cocaine, and other illegal drugs, and it is now a tool in the military’s fight against spice.
Under current laws and regulations, the armed forces have prohibited the ingestion, possession, distribution, and sale of designer drugs, such as spice, as well as naturally occurring intoxicating substances such as salvia divinorum (“salvia”).
As MARFORCOM Order 5355.1 states, the use of the below-listed substances “adversely affects good order and discipline, mission readiness, and the health of service members, as well as adversely affects the good order of civilians aboard installations.”
List of Prohibited Substances*
|Salvia Dinorum and Salvinorin A||Maria Pastora
Sage of the Serrs
|Mitragyna Speciosa Korth||Kratom
|Nymphaea Caerulea||Blue Water Lily
Sacred Narcotic Lily of the Nile
|Convolvulaceae Argyreia Nervosa||Hawaiian Baby Woodrose|
|Lysergic Acid Amide||Morning Glory|
|* Prohibited substances identified in MARFORCOM Order 5355.1.|
Prior to March 1, 2011, service members could have legally obtained spice, also known as K2 and many other names, and the military’s only deterrent was prosecution under Article 92 as a violation of a general order or regulation not to use or possess such substances. Now with the DEA scheduling action, service members can face much harsher penalties under Article 112a.
Maximum Penalties under Spice-Related UCMJ Charges
(Failure to obey a lawful general order or regulation)
(Wrongfully using, possessing, distributing or selling a controlled substance)
|Dishonorable discharge||Dishonorable discharge|
|Forfeiture of all pay and allowances||Forfeiture of all pay and allowances|
|Two (2) years of confinement||Five (5) years of confinement|
|Sentencing information from the 2008 Manual for Courts-Martial.|
Even with the recognition of spice’s chemicals as Schedule I controlled substances, practical problems still abound in testing. And to complicate matters even further, many of these synthetic substances are marketed as herbal incense, making innocent exposure a real possibility. So although stiffer penalties are now available to the armed forces, proving the requisite criminal intent remains as elusive as ever.
Sample Methods for Fighting Positive Urinalyses Indicating Spice Use
Unlawful Search and Seizure
Service members who test positive for spice or salvia should immediately contact a military attorney to explore whether any of these or other defenses may apply to their case. To schedule a meeting with one of Tully Rinckey PLLC’s military law attorneys, call 5182187100 or e-mail firstname.lastname@example.org.