Marijuana use in the military

  • Published
  • By Capt. Karen Hinkle
  • 90th Missile Wing Judge Advocate Office chief of military justice
F.E. WARREN AIR FORCE BASE, Wyo. --  There have been many changes in state law recently regarding the regulation of marijuana use. Some states, including Colorado, have legalized recreational use of marijuana for individuals age 21 and older. Other states have opened up use for medical purposes only. The evolution of marijuana legalization throughout the states understandably leads to many questions for service members.

Now that it is legal in Colorado, does this mean I can use it?
The short answer to this question is no. Although some states are choosing to legalize marijuana use, federal law has not changed. Marijuana possession, use and distribution all remain punishable under federal law, which includes the Uniform Code of Military Justice, Article 112a. The UCMJ applies to military personnel without regard to their location.

Additionally, federal law (for our purposes, the UCMJ) supersedes the legislative initiatives of any state, district, or territory of the United States. This means that even though an active duty service member might be living in Colorado, and even though Colorado tolerates recreational marijuana use, the service member is still not allowed to possess, use, or distribute marijuana in Colorado or anywhere else.

While Colorado state authorities may not enforce federal law, service members are still subject to investigation by federal law enforcement agencies, including Security Forces and the Air Force Office of Special Investigations.

Can my civilian spouse use it?
Because the UCMJ applies only to military members, civilian spouses and dependents are not bound by its provisions. However, marijuana use is not legal under federal law, no matter what state the spouse resides in.

Civilian spouses and dependents should also be familiar with the laws of the state where they reside or are visiting and adhere to those requirements. Civilian spouses in Wyoming, for example, should be aware that Wyoming has not legalized any form of marijuana possession or use and they could be subject to prosecution.

What if my roommate, spouse or significant other uses it in my house? Will I get in trouble?
The answer to this question depends on many factors. Marijuana use or possession on base, including in privatized housing, is absolutely prohibited. This applies to spouses and dependents, as well as military members. That is because military installations are considered federal property, and they are governed by federal law.

Civilians who bring marijuana onto an installation, or possess or use marijuana on the installation may be charged in federal magistrate court for the violation. This commonly happens when an individual uses marijuana in a vehicle and transports marijuana residue, wrappers, or smoking paraphernalia on to the base.

Service members who reside off-base should proceed with caution if their spouse, dependent, roommate or anyone brings marijuana or drug paraphernalia into their residence. Even if a service member is not the individual who intends to or uses the marijuana, the fact that the marijuana is present in their private residence may lead a court to determine that the service member constructively possessed it.

Constructive possession means a person has legal possession of an object, even if they do not have direct physical control over it. In other words, if a service member knows that marijuana is in their home and they can access it if he or she so chooses, they could be found to have constructive possession of the marijuana.

It is critical for service members to discuss with their roommates, spouses, dependents and any visitors the adverse effect that any marijuana use or possession in the residence can have upon the service member.

There are so many hemp products out there. Can I use those?
An email has been circulating recently to alert Air Force members as to the presence of hemp seeds in Strong & Kind protein bars, sold commonly through commercial vendors.

The Air Force prohibits military members from ingesting any product that contains or is derived from hemp seed or hemp seed oil. AFI 90-507, Military Drug Demand Reduction Program, paragraph 1.1.6, states, "Studies have shown that products made with hemp seed and hemp seed oil may contain varying levels of tetrahydrocannabinol, an active ingredient of marijuana, which is detectable under the Air Force Drug Testing Program.

In order to ensure military readiness, the ingestion of products containing or products derived from hemp seed or hemp seed oil is prohibited. Failure to comply with the mandatory provisions of this paragraph by military personnel is a violation of Article 92 of the Uniform Code of Military Justice. Violations may result in administrative disciplinary action "without regard to otherwise applicable criminal or civil sanctions for violations of related laws."

While a service member's risk of having a positive urinalysis test result due to consumption of one of these protein bars is extremely low, the underlying premise behind the Air Force's blanket prohibition on ingesting hemp seed products remains the same. Products are likely to vary in the levels of THC contained within, and it is impossible to police each individual product.

Service members should be vigilant about what they consume. A good practice to follow is to read product labels prior to consumption to see whether the product contains hemp seed or hemp seed oil.

The bottom line is that unless, and until, federal law changes, marijuana use of any kind remains illegal for active duty service members. Service members with roommates, civilian spouses, dependents or visitors who may engage in marijuana possession or use at their residence should discuss what effect such use could have on the service member's career. Finally, active duty members should remember they are prohibited from ingesting any product that contains or is derived from hemp seed or hemp seed oil.