Troops, civilians still face consequences for marijuana use despite Alaska legalization

JBER Staff Judge Advocate news release

11/7/2014 - JOINT BASE ELMENDORF-RICHARDSON, Alaska -- In this week's election, Alaska residents voted to pass Ballot Measure 2, which allows civilians in Alaska age 21 and older to use and possess up to one ounce of marijuana and up to six marijuana plants. This measure must be acted upon and passed by the legislature before it will go into effect, so there is no known date of implementation.

However, though Alaska has voted to legalize marijuana, and regardless of the implementation date, the federal government and the military have not legalized the substance in any way. Service members are still subject to the Department of Defense zero-tolerance drug policy, regardless of the state in which they are stationed.

Drug testing programs will continue to screen for all drugs, including marijuana and spice, and the military will still prosecute for the same.

"The bottom line is that service members living in Alaska are still subject to the Uniform Code of Military Justice, Article 112a, which prohibits not just the use of marijuana, but also the possession, distribution and manufacture of the drug," said Air Force Capt. Dayle Morell, chief of Military Justice at the 673d Air Base Wing Legal Office. "Additionally, marijuana and spice are still prohibited substances in federal law, and not permitted on base or in base housing with service members or their sponsored dependents and guests. Furthermore, troops who have civilian dependents, roommates or friends who are not subject to the UCMJ should remember that 'possession is nine-tenths of the law' - shared living spaces and vehicles could subject service members to further discipline. The onus is on the troops to ensure they are not putting themselves in a potentially illegal situation."

Recently, several service members stationed at Joint Base Elmendorf-Richardson were convicted of illegal drug use. This summer, two service members were convicted at a special court martial for use of cocaine on multiple occasions. Both were sentenced to, among other things, discharge from the service with a bad conduct discharge.

Simply put, use, possession, manufacture and distribution of marijuana or any other illegal or non-prescribed drug, on or off duty, is still illegal for all service members.

Civilian use

Civilian employees are not subject to the Uniform Code of Military Justice. However, the possibility of a court martial is not the only side-effect of illegal drug use.

Federal workplaces remain committed to maintaining a drug-free environment and the Civilian Drug Demand Reduction Program will continue to test for marijuana use, because it is still illegal federally. 

Drug use, even if legal under state law, may have employment and/or disciplinary consequences for the civilian workforce. Those in positions designated for random testing are subject to random drug testing and may also be tested upon reasonable suspicion of drug use, on or off duty.

Reasonable suspicion is a specific and fact-based belief that an employee has engaged in illicit drug use, and that evidence of illicit drug use is presently in the employee's body, drawn from specific and particularized facts, and reasonable inferences from those facts.

Consequences of a positive test vary, but may mean an immediate reassignment and security clearance adjudication, which could result in revocation of an employee's security clearance. Employees in a non-testing designated position may also be tested upon reasonable suspicion of drug use on duty, or drug impairment on duty, and will be tested if they apply for a testing-designated position and receive a tentative job offer.

The bottom line, even for civilians, is that marijuana remains a federally controlled substance, and drug use may have negative employment consequences for all members of the Department of Defense community.