Most service members who pop positive on a urinalysis will face an administrative separation, not a court-martial. For the great majority of those people, especially junior enlisted who tested positive for THC and are getting a General discharge, there’s nothing a civilian military lawyer can do that the JAG defense counsel can’t do for free. In those cases, the honest answer is no; save your money. But if you are being court-martialed or if you’re entitled to a board, then yes, hiring a highly experienced former JAG would be wise. If you’re in that situation, you will have a variety of strategic and tactical options for beating an Article 112a urinalysis case, depending on the forum and branch of service.
Are You Facing a Board or Are You Being Court-Martialed?
A board is the administrative equivalent of a court-martial. It gives you a chance to fight the allegations and save your career. Board entitlement for enlisted members depends on how much time in service you have and which discharge characterization the military is trying to stick you with.
Under DoDI 1332.14 and service-specific regulations, most enlisted members with six or more years of service are entitled to a separation board. Coast Guard members need to have eight years.
Any enlisted member facing an Other Than Honorable discharge is entitled to a board regardless of service time.
Officer cases are governed by a parallel rule, DoDI 1332.30, and the service-specific regulations (DAFI 36-3211 for Air Force and Space Force, AR 600-8-24 for Army, SECNAVINST 1920.6D for Navy and Marine Corps, COMDTINST M1000.4 for Coast Guard).
An officer with at least six years of active commissioned service can demand a board. With less than six years, the officer is “probationary” and can be separated by paperwork with a simple notification, so long as it’s for an Honorable or General discharge. If the military aims to separate an officer with an OTH, board entitlement is automatic, just as it is for enlisted members.
When to Hire Civilian Counsel for a Urinalysis Case
| Your Situation | Can a Lawyer Help? |
|---|---|
| Court-martial charges for a positive urinalysis | Yes |
| Enlisted >6 years (8 for USCG) facing administrative separation | Yes |
| Officer >6 years facing administrative separation | Yes |
| Anyone facing an OTH discharge | Yes |
| Enlisted <6 years, facing General or Honorable discharge | No, in most cases |
| Officer <6 years, facing General or Honorable discharge | No, in most cases |
A civilian attorney might not be worth the expense of the bottom two scenarios. Without a board, there’s no hearing for contesting the allegations, no compulsory process for witnesses, and no cross-examination of lab personnel or anyone else involved in the notification, collection, or processing. The member can make a case on paper by submitting a rebuttal, but it almost never gets the command to change its mind. It’s still worth the effort to make a strong record if possible, especially for officers, and an experienced civilian military lawyer can help draft the rebuttal to raise legal issues that should be accounted for even though it isn’t a court-martial or board. But for a General discharge that’s limited to paperwork, the assigned military counsel can do that work for free, and the marginal value of civilian counsel is rarely worth what civilian counsel costs.
If you’re in a board or court-martial, the benefits can far exceed what it costs to hire a civilian military lawyer.
How a Court-Martial is Different from a Board
A separation board is an administrative process. It’s not a criminal-court proceeding. There’s no risk of confinement, a criminal record, or punitive discharge. So from one point of view, a board is much better than a court-martial.
But there are drawbacks. The burden of proof is preponderance of the evidence (which just means more likely than not), not beyond a reasonable doubt, so the case is much easier for the government to prove. And a defendant/respondent doesn’t get as many rights as at a court-martial. There’s also no judge to make legal rulings. The board is run by a senior officer, with guidance from a command-side JAG. And even though there is no punitive discharge possible at a board, an OTH is, and an OTH can have effects just as devastating as a Bad Conduct or Dishonorable discharge.
A court-martial is a criminal-court proceeding. Conviction in a military case almost always qualifies as a civilian conviction. A court-martial conviction also brings a threat of jail time, forfeiture of pay, loss of benefits, and a punitive discharge. While the risk at a court is greater than a board, the protections are too. The government is required to prove its case beyond a reasonable doubt. That can be difficult to do in non-THC drug cases based solely on a positive urinalysis. An accused has broader rights to discovery, production of witnesses, cross-examination, judicial intervention, and the assistance of expert witnesses the government has to pay for. And if there’s a conviction but the sentence doesn’t include a punitive discharge, the worst the command can do afterward is separate the accused administratively with a General.
What Defenses Might Be Available for a Drug Charge
When you’re able to fight the allegations at a court-martial or board, your strategic options depend on a handful of variables:
- The drug
- The nanogram level
- The basis for the test
- The collection and testing process
- The branch of service
The Drug
Some drug test results are harder to fight than others. A THC positive is extremely hard to beat. A cocaine positive at a low nanogram level is a winnable case. For prescription meds that don’t induce noticeable cognitive effects, a defense of mistaken/unknowing ingestion is commonly available. In all branches, a single THC positive will be resolved through an administrative separation with a service characterization of General.
The Nanogram Level
“Nanogram” or “Ng” is the number showing the concentration of the drug in your system. It’s a snapshot in time that doesn’t reveal when a drug was ingested, or how much was ingested. But the lower the level is, the better chance you’ll have raising defenses, like unknowing ingestion.
The Basis for the Test
Most urinalysis tests in the military are conducted during random “unit sweeps,” which are allowed under Military Rule of Evidence 313, and which are admissible without the prosecution showing there was probable cause to believe you had the drug in your system. A command-directed test, however, has to be based on probable cause to be admissible in a UCMJ case, which can give the defense an additional angle of attack.
The Collection and Testing Process
You can “put the lab on trial” by attacking every stage of the process: notification, observer presence, chain of custody, sealing the specimen, documentation on the bottle label, storage, shipping, lab work, the lab’s history of mistakes, and more.
The Branch of Service
The Air Force will prosecute almost any drug case, including (sometimes) THC urinalysis positives. The Marine Corps, Army, Navy, and Coast Guard will sometimes prosecute “hard drugs,” including misuse of prescriptions, but almost never THC, and in most cases, even with cocaine or opiates, a single failure will be handled through an administrative process instead of court-martial.
A 19-year-old E-2 in the Army who tested positive for THC on a single random urinalysis (a very common case) will almost always be separated with a General discharge, through a notification process alone, with no chance to fight the allegations. No civilian military lawyer can change that outcome, so they shouldn’t take the case or the young person’s money.
UCMJ Drug Case FAQs
What if I test positive again while under investigation for a positive urinalysis?
Subsequent failures can be used at a court-martial or board. Under the cases of United States v. Bickel, 30 M.J. 277 (C.M.A. 1990), and United States v. Ayala, 69 M.J. 63 (C.A.A.F. 2010), a subsequent test is a continuation of the initial, lawful test, and a failure is admissible just like the initial failure. If the initial test is found to be unlawful and inadmissible, subsequent failures derived from mandatory follow-up tests won’t be admissible either.
What if I test positive while in a drug treatment program?
You’d be processed for separation as a rehabilitation failure. Under AR 600-85 and the equivalent regulations in the other services, the worst possible characterization of discharge would be General Under Honorable Conditions. If you have six or more years of service (eight in the Coast Guard), you’re entitled to a board with the usual rights to inspect the evidence and access witnesses. The military provides free JAG defense counsel for a board. You can also hire civilian counsel at your own expense.
Does my prior enlisted service entitle me to a board as a probationary officer?
No. Your prior enlisted service doesn’t count toward the years of active service that would make you board-entitled. For example, an Air Force 2nd Lt with 12 years of enlisted service but only two years as a “probationary” officer in an enlisted-to-officer program can be separated by notification procedure for an Honorable or General discharge. The only path to a board for a drug failure as a probationary officer is if the military pursues an Other Than Honorable discharge.
Gagne, Scherer & Associates: Experienced Military Drug Charge Defense Lawyers
If you’re facing a court-martial or a board for a positive urinalysis, you have a decision to make about whether civilian counsel adds enough value to be worth the fee. In most cases the answer is yes. But if you’re not entitled to a board or court, the answer is likely no. Call (224) 935-6172 and we’ll give you a candid read on whether your case is one where we can make a difference.