§ Article 112a : Wrongful Use, Possession, etc., of Controlled Substances

Article 112a of the UCMJ (10 U.S.C. § 912a) punishes wrongfully using, possessing, manufacturing, distributing, importing into or exporting from the United States, or introducing onto a military installation, vessel, vehicle, or aircraft, a controlled substance.

Who It Applies To

Any person subject to the UCMJ 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 covered controlled substance. Covered substances include those specifically named in the statute — opium, heroin, cocaine, amphetamine, LSD, methamphetamine, phencyclidine, barbituric acid, marijuana, and their derivatives — substances listed on schedules the President prescribes for this article, and substances listed on Schedules I through V of the federal Controlled Substances Act.

What It Covers

Article 112a defines seven offenses. In each, the conduct must be wrongful.

1. Possession — the accused possessed a certain amount of a controlled substance.
2. Use — the accused used a controlled substance.
3. Distribution — the accused distributed a certain amount of a controlled substance.
4. Introduction — the accused introduced a certain amount of a controlled substance onto a vessel, aircraft, vehicle, or installation used by or under the control of the armed forces.
5. Manufacture — the accused manufactured a certain amount of a controlled substance.
6. Possession, manufacture, or introduction with intent to distribute — the accused possessed, manufactured, or introduced a certain amount of a controlled substance with intent to distribute it.
7. Importation or exportation — the accused imported a certain amount of a controlled substance into the customs territory of the United States, or exported it from the United States.

When an aggravating circumstance listed under the maximum punishment is alleged, it becomes an element.

Key rules

• Controlled substance means amphetamine, cocaine, heroin, LSD, marijuana, methamphetamine, opium, phencyclidine, and barbituric acid (including phenobarbital and secobarbital), and any substance in Schedules I through V of the Controlled Substances Act (21 U.S.C. § 812).
• Possession means exercising control, directly or constructively, and must be knowing and conscious. More than one person may possess an item at the same time. A person who did not know the substance was present cannot be convicted of possessing it.
• Use means injecting, ingesting, inhaling, or otherwise introducing a controlled substance into the body. Knowledge of the substance’s presence is required, and may be inferred from its presence in the accused’s body or from other circumstantial evidence.
• Wrongfulness. The conduct is wrongful if done without legal justification or authorization. It is not wrongful if done in legitimate law enforcement activity, by authorized personnel performing medical duties, or without knowledge of the substance’s contraband nature. Wrongfulness may be inferred absent evidence to the contrary; once an exception is raised by the evidence, the Government must prove wrongfulness.
• Deliberate ignorance. A person who consciously avoids knowing that a controlled substance is present, or what it is, is treated the same as one with actual knowledge.
• Intent to distribute may be inferred from circumstances such as a quantity beyond personal use, market value, packaging, or the accused not being a user. Evidence that the accused is an addict or heavy user may tend to negate that inference.
• Customs territory of the United States includes only the States, the District of Columbia, and Puerto Rico.

Maximum Punishment

Maximum authorized punishment.

• Use, possession, manufacture, or introduction of amphetamine, cocaine, heroin, LSD, marijuana (except use, or possession of less than 30 grams), methamphetamine, opium, phencyclidine, secobarbital, or a Schedule I, II, or III substance: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
• Use or possession of less than 30 grams of marijuana, or use, possession, manufacture, or introduction of phenobarbital or a Schedule IV or V substance: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
• Distribution; possession, manufacture, or introduction with intent to distribute; or importation or exportation of the substances in the first group (including marijuana in any amount): dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
• The same conduct involving phenobarbital or a Schedule IV or V substance: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

The maximum confinement for any Article 112a offense increases by 5 years if the offense is committed while the accused is on duty as a sentinel or lookout; 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.

Sentencing parameters.

• Use or possession of the substances in the first group: Category 1 (0–12 months).
• Manufacture or introduction of the substances in the first group: Category 2 (1–36 months).
• Use, possession, manufacture, or introduction of phenobarbital or a Schedule IV or V substance: Category 1 (0–12 months).
• Distribution, intent-to-distribute offenses, importation, or exportation of any controlled substance: Category 2 (1–36 months).

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 112a addresses the controlled substance itself. Article 112 addresses being incapacitated for duty as a result of drug use, and Article 113 addresses operating a vehicle, aircraft, or vessel while impaired by a controlled substance.

What the Provision Does

Article 112a sets a single military standard for controlled substances that applies to every person subject to the UCMJ, wherever the conduct occurs, and authorizes higher maximum punishments for distribution and trafficking than for use or possession.

History

Article 112a was added to the UCMJ by the Military Justice Act of 1983 (Pub. L. 98-209, § 8), effective August 1, 1984, and does not apply to offenses committed before that date. In 1987, Congress directed the Secretary of Defense to establish procedures to ensure that physiological specimens collected in drug investigations reach forensic laboratories in suitable condition and that results are returned in time for use in court-martial proceedings (Pub. L. 100-180, § 1248).

Sources

• 10 U.S.C. § 912a (Article 112a, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 50
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• 21 U.S.C. § 812 (schedules of controlled substances)