Marijuana: state law does not trump federal law

by Staff Sgt. Sheila deVera
JBER Public Affairs

1/8/2014 - JOINT BASE ELMENDORF-RICHARDSON, Alaska  -- Federal law and the Uniform Code of Military Justice reminds service members and Department of Defense civilians stationed, visiting or during permanent change of station to the state of Colorado and Washington that the use of marijuana is still has a zero tolerance policy.

"Whether you are wearing the uniform or civilian clothes, on-base or off-base, on leave, or in a different state or country, you are still subject to the UCMJ," said Air Force Capt. Jonathan Henley, 673d Judge Advocate preventive law chief. "In addition to being subject to the UCMJ, members are still subject to the criminal laws of the municipality, county, state and country where they are present."

In 2012, Amendment 64 amended Article 18 of the Colorado State Constitution. The law now allows individuals to grow up to three immature and three mature cannabis plants privately in a locked space, legally possess all cannabis from the plants to grow (as long as it stays where it was grown), possess up to one ounce of cannabis while traveling and give up to one ounce of cannabis as a gift to others who are 21 years of age or older. Additionally, under Amendment 64, individuals may consume marijuana in a manner similar to alcohol, with equivalent penalties prescribed for driving under the influence.

Also, in 2012, Washington's general ballot approved Initiative 502. The ballot states marijuana grown by specially licensed Washington farmers may be sold in standalone, marijuana-only, stores operated by private Washington businesses -- licensed and regulated by the state.

On Feb. 4, 2013, the Office of the Assistance Secretary of Defense for Readiness and Force Management issued a memorandum titled, "Prohibition on the Use of Marijuana by Military Service Members and Department of Defense Civilian Employees." The memorandum reaffirms the categorical prohibition of marijuana use, possession and distribution by uniformed and civilian members of the Department of Defense in all locations.

"If you are caught with marijuana off-base, you could be subject to prosecution by the civil authorities," Henley said. "If a member was found to be in possession of marijuana off-base in a state where it was legal to possess such an amount, the conduct is still criminalized under the UCMJ and may be prosecuted."

Since the use of marijuana has been legalized since 1996 for medical use, marijuana remains classified as a Schedule I substance under the Controlled Substance Act at the Federal level.

Federal law supersedes state, district and territorial legislation for the use of legalized recreational or medical use of marijuana.

All service members, including retirees, cadets and reserve members entitled to pay who possess, or distribute marijuana, regardless of their location, remain subject to persecution and adverse administrative action under Article 112a of the Uniformed Code of Military Justice.

The maximum punishment for possession of marijuana more than 30 grams is a dishonorable discharge, forfeiture of all pay and allowances and confinement for five years. For possession of less than 30 grams of use of marijuana, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances and confinement for two years, Henley added.

DoD civilian employees have the same restriction governing drug use contained in DoD Instruction 1010.09 and applicable Department of Health and Human Services, Substance Abuse and Mental Health Services Administration Guidelines. Civilian employees can face written reprimand, suspension or removal from service.

"DoD civilians and family members are not generally subject to the UCMJ," Henley said. "Civilians are subject to criminal codes of the place where they are caught."

Civilians caught on the installation, depending on the jurisdictional authority of the military installation, could be prosecuted by the federal government in federal court or local civilian prosecutor -- or both.

Under 21 United States Code sections 844, it is unlawful for any person to knowingly or intentionally possess a controlled substance [marijuana].

According to Henley, DoD civilians also sign an employment contract when they agree to work for the DoD. The contract includes clauses regarding illegal drug possession and use.

For more information, contact the 673d Air Base Wing legal office at 552-3048.