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Federal laws keep marijuana illegal for military personnel, despite state legalization

Military Law

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marijuana prohibited from military

Even as medical and recreational use of marijuana becomes legal for those over 21 in many states, U.S. military personnel face severe consequences if they use marijuana or other drugs.

Despite state legalization, all use and possession of marijuana remain prohibited for U.S. military members under Article 112A of the Uniform Code of Military Justice (UCMJ), because marijuana is federally classified as a Schedule 1 drug. The UCMJ states that:

“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.”

Additionally, those with security clearances risk having their clearances revoked if they engage in any drug use or misuse, to include marijuana. Schedule 1 drugs, which also include heroin, “have a high potential for abuse and the potential to create severe psychological and/or physical dependence,” according to the U.S. Drug Enforcement Administration (DEA).

Although a bill, H.R. 420, was recently introduced that would remove marijuana from the federal list of controlled substances and would regulate it the same way as alcohol, it remains unclear what, if any, effect a change would have on the military’s policy.

But there is some indication that the military may be loosening its restrictions when it comes to previous marijuana use. Although excessive use, dependency and past drug or alcohol convictions currently disqualify individuals from enlisting in the military, limited marijuana use—particularly in states where it is legal—is not necessarily an automatic disqualification anymore.

As marijuana becomes more mainstream, with legalization continuing across the country and many states moving toward decriminalizing the possession of small amounts of marijuana, the military has taken notice. According to Army Times, the number of waivers granted for marijuana use to those wanting to enlist in the Army who had used marijuana in their youth jumped to more than 500 in 2017 from 191 in 2016.

 

What about medical marijuana?

Just as recreational marijuana currently is illegal for U.S. military personnel to use or possess, medical marijuana also is off limits. There are no exceptions for military personnel—not even with physician prescriptions or doctor-approved medical marijuana cards.As for veterans who seek care from the U.S. Veterans Administration, they will not be denied VA benefits or care because of marijuana use, and are encouraged to discuss marijuana use with their VA providers, according to the VA. “VA health care providers will record marijuana use in the Veteran’s VA medical record in order to have the information available in treatment planning. As with all clinical information, this is part of the confidential medical record and protected under patient privacy and confidentiality laws and regulations,” the VA states on its website.

VA clinicians may not recommend medical marijuana and may only prescribe medications that have been approved by the U.S. Food and Drug Administration for medical use. More information can be found about the VA’s policy on clinical programs for veterans participating in state-approved marijuana programs in VHA Directive 1315.

In 2018, H.R. 5520 proposed that the Department of Veterans Affairs (VA) “conduct and support research on the efficacy and safety of certain forms of cannabis and cannabis delivery for veterans enrolled in the VA health care system diagnosed with conditions such as chronic pain or post-traumatic stress disorder.”

Although the bill failed, various groups continue to push for scientific and medical research of medicinal marijuana for use by veterans with diagnoses such as post-traumatic stress disorder and chronic pain.

In the meantime, military personnel who use marijuana or have failed a drug test due to marijuana face serious consequences and should seek the advice of a military attorney.

 

Heather Tenney, Esq., LL.M is an Associate in Tully Rinckey PLLC’s Albany office and former Judge Advocate with U.S. Army Judge Advocate General’s Corps (JAG), who represents officers and enlisted service members in complex legal matters, including courts-martial, adverse command actions against troops such as administrative separations, Article 15 matters, and other forms of non-judicial punishment.

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