Article 112: Punitive Articles of the UCMJ

Wrongful Use and Possession of Controlled Substances

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“(a) 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.

(b) The substances referred to in subsection (a) are the following:

(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).”

    Elements

    (1) Wrongful possession of controlled substance.

    (a) That the accused possessed a certain amount of a controlled substance; and

    (b) That the possession by the accused was wrongful.

      (2) Wrongful use of controlled substance.

      (a) That the accused used a controlled substance; and

      (b) That the use by the accused was wrongful.

        (3) Wrongful distribution of controlled substance.

        (a) That the accused distributed a certain amount of a controlled substance; and

        (b) That the distribution by the accused was wrongful.

          (4) Wrongful introduction of a controlled substance.

          (a) That the accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed forces or under the control of the armed forces a certain amount of a controlled substance; and

          (b) That the introduction was wrongful.

            (5) Wrongful manufacture of a controlled substance.

            (a) That the accused manufactured a certain amount of a controlled substance; and

            (b) That the manufacture was wrongful.

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

              (a) That the accused (possessed) (manufactured) (introduced) a certain amount of a controlled substance;

              (b) That the (possession) (manufacture) (introduction) was wrongful; and

              (c) That the (possession) (manufacture) (introduction) was with the intent to distribute.

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

                (a) That the accused (imported into the customs territory of) (exported from) the United States a certain amount of a controlled substance; and

                (b) That the (importation) (exportation) was wrongful. Note: When any of the aggravating circumstances listed in subparagraph e is alleged, it must be listed as an element.

                  Explanation

                  (1) 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 i n Schedules I through V established by the Controlled Substances Act of 1970 ( 21 U.S.C. 812).

                  (2) 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.

                  (3) 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.

                  (4) 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.

                  (5) 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 proceeding 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.

                  (6) 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.

                  (7) 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.

                  (8) Missile launch facility. A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.

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

                  (10) Use. “Use” means to inject, ingest, inhale, or otherwise introduce into the human body, any con-trolled substance. Knowledge of the presence of the controlled substance is a required component of use. Knowledge of the presence of the controlled sub-stance 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.

                  (11) Deliberate ignorance. An accused who consciously avoids knowledge of the presence of a con-trolled substance or the contraband nature of the substance is subject to the same criminal liability as one who has actual knowledge.

                  Lesser included offenses

                  (1) Wrongful possession of controlled substanceArticle 80—attempts

                  (2) Wrongful use of controlled substance.

                  (a) Article 112a—wrongful possession of con-trolled substance

                  (b) Article 80—attempts

                    (3) Wrongful distribution of controlled substanceArticle 80—attempts

                    (4) Wrongful manufacture of controlled substance.

                    (a) Article 112a—wrongful possession of controlled substance

                    (b) Article 80—attempts

                      (5) Wrongful introduction of controlled substance.

                      (a) Article 112a—wrongful possession of con-trolled substance

                      (b) Article 80—attempts

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

                        (a) Article 112a—wrongful possession, manufacture, or introduction of controlled substance

                        (b) Article 80—attempts

                          (7) Wrongful importation or exportation of a con-trolled substanceArticle 80—attempts

                          Maximum punishments

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

                          (a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 grams or use of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, III controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 5 years.

                          (b) Marijuana (possession of less than 30 grams or use), phenobarbital, and Schedule IV and V controlled substances. 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 con-trolled 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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                              Above Information from Manual for Court Martial, 2002, Chapter 4, Paragraph 37

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