Article 112a, UCMJ – Wrongful Use, Possession, etc., of Controlled Substances

1. Statutory Framework

Article 112a, UCMJ (10 U.S.C. § 912a), criminalizes the wrongful use, possession, distribution, manufacture, importation, exportation, or introduction of controlled substances. The offense has two essential elements: (1) the act (such as use or possession), and (2) the wrongfulness of the act. “Controlled substance” is defined in three ways: (1) substances specifically named in the statute, (2) substances placed on schedules by the President, and (3) those listed in Schedules I through V of the Controlled Substances Act. United States v. Paul, 73 M.J. 274 (C.A.A.F. 2014).

2. Elements of Major Offenses

• Use: Proof requires that the accused knowingly and wrongfully used a controlled substance. Knowledge may be inferred from presence in the body unless rebutted. United States v. Pope, 69 M.J. 328; United States v. Webb, 66 M.J. 89.
• Possession: The accused knowingly possessed a controlled substance, and such possession was wrongful. Dominion or control may establish constructive possession. United States v. Young, 64 M.J. 404.
• Distribution: The accused distributed a controlled substance knowingly and wrongfully. United States v. Mitchell, 66 M.J. 176.
• Possession/Introduction/Manufacture with Intent to Distribute: Proof of specific intent to transfer to another.
• Importation/Exportation: Knowing and wrongful movement of controlled substances into or out of U.S. customs territory.
• Introduction onto Military Installations or Conveyances: Requires knowledge that a controlled substance was being brought onto a military facility or vehicle. United States v. Thomas, 65 M.J. 132.

3. Knowledge and Wrongfulness

The government must prove that the accused knew of the presence and contraband nature of the substance. Wrongfulness means without legal justification or authorization. Innocent ingestion, lack of knowledge, or lawful use (such as with a valid prescription) negate wrongfulness. Knowledge does not require awareness of the precise chemical identity so long as the accused knew it was a controlled substance. United States v. Dillon, 61 M.J. 221; United States v. Brown, 50 M.J. 262.
“Deliberate avoidance” may substitute for actual knowledge if the factfinder is convinced beyond a reasonable doubt that the accused consciously avoided confirming the substance’s nature. United States v. Campbell, 50 M.J. 154.

4. Proof Issues

• Urinalysis: Admissible when chain of custody is intact and expert testimony explains methodology and significance. A positive urinalysis, properly supported, permits a permissive inference of knowing and wrongful use. United States v. Hall, 58 M.J. 90; United States v. Green, 55 M.J. 76; United States v. Campbell, 52 M.J. 386 (on reconsideration).
• Lay Testimony: Appearance, effects, price, and common reference may support drug identity. United States v. Griggs, 61 M.J. 402.
• Circumstantial Evidence: Evidence such as scales, cash, packaging, or residue can establish intent to distribute. Young, supra.

5. Maximum Punishments (MCM 2024)

• Use, simple possession, manufacture, or introduction (without intent):
  • Schedule I–III substances (e.g., cocaine, heroin, LSD, methamphetamine, PCP, secobarbital): Dishonorable discharge, forfeiture of all pay and allowances, and 5 years’ confinement.
  • Marijuana use/possession <30 grams, phenobarbital, Schedule IV–V: Same punitive discharges/forfeitures, maximum 2 years’ confinement.
• Distribution, possession/manufacture/introduction with intent, importation/exportation:
  • Schedule I–III substances (including marijuana, cocaine, heroin, LSD, methamphetamine): DD, forfeitures, 15 years.
  • Phenobarbital, Schedule IV–V: DD, forfeitures, 10 years.
• Aggravating Circumstances (MCM ¶50.c.(6)): If committed while on guard duty, aboard military vessels/aircraft, at missile facilities, in confinement facilities, during wartime, or while receiving special pay under 37 U.S.C. § 310, add 5 years to the maximum confinement.

6. Sentencing Parameters (2024 Reform)

While statutory maximums remain, the 2024 MCM introduced sentencing parameter ranges (Appendix 12B/12C) by offense category. Many 112a offenses fall into Category 1 or 2, producing recommended ranges (e.g., 0–12 months, 1–36 months) that guide sentencing authorities, though they cannot exceed the statutory maximum.

7. Case Law Highlights

• Paul (2014): Government must prove substance is within 112a definition; “ecstasy” label alone is insufficient.
• Bennitt (2013): Aiding and abetting drug use is a viable offense under Article 77.
• Pope and Webb: Wrongful use requires knowledge; inference permitted from presence in body.
• Mitchell: Guilty plea must resolve doubts about substance identity.
• Thomas: Wrongful introduction requires knowledge of substance and location.
• Griggs: Lay speculation is insufficient; corroborating circumstantial or expert evidence is required.
• Campbell: Knowledge may be proven by deliberate avoidance; urinalysis requires expert explanation.
• Savage (1999): Possession with intent to distribute is a lesser-included offense of distribution.

FAQ for UCMJ Article 112a

What does Article 112a prohibit?
Article 112a prohibits wrongful use, possession, distribution, manufacture, importation, exportation, or introduction of controlled substances by members of the armed forces. Wrongfulness means without legal authorization or justification.

Is marijuana treated differently under Article 112a?
Yes. Simple use or possession of less than 30 grams of marijuana carries a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and 2 years’ confinement. Larger quantities or intent to distribute carry higher penalties.

What is the maximum punishment for wrongful use of cocaine, heroin, or LSD?
For Schedule I–III drugs such as cocaine, heroin, LSD, methamphetamine, and PCP, the maximum punishment for wrongful use is dishonorable discharge, forfeiture of all pay and allowances, and 5 years’ confinement.

Can urinalysis alone support a conviction?
Yes, but only if the chain of custody is intact and expert testimony explains the results. A properly supported urinalysis can permit a permissive inference of knowing and wrongful use.

What if the accused claims innocent ingestion?
If credible evidence of innocent ingestion is presented, the government must disprove it or persuade the factfinder to reject it. Courts emphasize that knowledge of wrongfulness is essential.

What happens under aggravating circumstances?
If the offense is committed on guard duty, aboard a military vessel or aircraft, at a missile facility, in a confinement facility, during wartime, or while receiving certain special pay, the maximum confinement increases by 5 years.

Does deliberate ignorance count as knowledge?
Yes. Courts have held that “deliberate avoidance” can establish knowledge if the factfinder believes the accused consciously avoided confirming the substance’s nature.

Is possession with intent to distribute a separate offense from distribution?
Possession with intent to distribute is a lesser-included offense of distribution. A service member cannot be punished twice for the same act.