Marijuana Discharges: A Level Playing Field?

By Spring 2019 M-VETS Student-Advisor Todd Mihill

Marijuana laws and enforcement have become a hot topic for discussion in the lead up to the 2020 elections. Perhaps one of the most effected segments of the population is the US military. While this may seem confusing, allow me to provide an example.

The US military falls under the umbrella of the Uniform Code of Military Justice[i], a set of federal laws. A member of the military, a soldier for our example, must behave in compliance with both state and federal laws. This means that our soldier is barred from using marijuana because of the applicable federal law. Our soldier is aware that he cannot use marijuana recreationally or for medical reasons.[ii] Now suppose our soldier who deals with the stress of combat deployments, separation from family and friends, and the rigidity of military life makes a mistake (a life altering mistake for a service member) and uses marijuana a single time. Our soldier lives in a state where marijuana is legal and can be purchased from authorized dispensaries.

When he tests positive for marijuana on a urinalysis test, his command takes administrative action and commences either administrative or punitive separation proceedings for the UCMJ violation. Our soldier is now either administratively separated from the military with a discharge that is either General or Other than Honorable or he is separated with a punitive discharge that is a Bad Conduct or Dishonorable discharge.[iii] Our soldier has entered the civilian workforce again, but he has not entered on a level playing field with his contemporaries. He has the equivalent of either a misdemeanor or felony conviction for substance abuse on his record, if punitively separated, [iv] and/or administrative bad paper with a general or OTH discharge.  Either way, it is far more challenging for him to get a job or even an interview with these types of discharge.

Our soldier made a mistake in the eyes of the military. He broke a rule and was punished for it, but when he is ultimately discharged from the military the punishment continues in the form of increased challenges adapting to civilian life. And what about his crime? The state he lives in doesn’t criminalize the use of marijuana. His contemporaries are free to purchase and use marijuana as they desire and it does not inhibit them in the same way it will inhibit our soldier.

Our soldier’s only recourse is requesting a change to his military record which will likely include the expense of appealing his discharge, years of waiting, and the struggle of dealing with the already over-worked Department of Veteran’s Affairs (VA). Even then, there is no guarantee that he will prevail in his upgrade request. In a world where veterans face countless challenges, do veterans, service members, and the military as a whole, have time to reconcile conflicting state and federal laws? The answer is “not likely” and veterans, like our soldier, will find themselves the victims of inequity following otherwise lawfully executed discharges.

State and Federal Law Conflict

Federal law has long prohibited marijuana as a “Schedule 1” drug.[v] Agencies such as the Drug Enforcement Agency (DEA) are given the authority to prevent the distribution, growth, and sale of marijuana in the US.[vi] Under the UCMJ military members are prohibited from using marijuana for any reason and are frequently screened by urinalysis to detect for the presence of marijuana and other drugs.

The changes in societal opinion and drug laws have most recently sprung forth at the state level. Approximately 23 states now have laws that either legalize or decriminalize the use of marijuana, and 46 states have laws that allow the use of some form of medical marijuana.[vii] Importantly, there are countless military installations in the states where marijuana use has been legalized or decriminalized.[viii] While these laws are directly in conflict with the federal law, it has become clear that federal enforcement efforts cannot cover all of these areas. It appears the federal government has become content to allow the states to make intrastate decisions regarding marijuana, but will become involved in large scale interstate or cross border distribution enforcement actions.

Impact on the Military

The UCMJ defines the actions and behavior of US servicemembers; this is not likely to change any time in the foreseeable future. There is no problem with the military holdings its members to a standard that differs from that of the civilian population. There is little contention that the military, should it decide it is necessary, prevent its members from drinking alcohol or leaving base.[ix] Marijuana is much the same way, but problems arise in the treatment of discharges related to the use of marijuana.

Military servicemembers are subject to an array of stressors that the general population does not experience. Servicemembers endure separation from family and loved ones; they endure rigorous training and deployment cycles; they frequently find themselves moving into new and unfamiliar areas of the country; they find themselves with spouses and children being uprooted from jobs and schools every 2, 3, or 4 years; and these stressors make the military life a difficult one.

With the challenges facing military members and their families, stress relief becomes an important issue. In an era when marijuana has been used to combat anxiety, depression, and stress, and prescribed by doctors as medicine, it is inevitable that the military establishment will see more instances of its members using marijuana and “popping positive” on subsequent urinalysis.

Undoubtedly it is the province of the military to ban the use of any substance it deems necessary. The military can, and arguably should, separate those who knowingly or willingly violate the UCMJ. But what should not happen is the imposition of detrimental punishments that extend far beyond the end of an individual’s service in the US military.

Post-Discharge Challenges

Those servicemembers separated from the military with discharges that are something other than “Honorable” face an uphill battle upon their transition into civilian life. A DD-214[x] that notes a military member had an incident of “Misconduct”, “Drug Use”, or “Positive Urinalysis”, may all preclude a transitioning service member from acquiring gainful employment. While those reasons are all accurate reflections of the military’s position, they may not reflect the law of the state that a veteran chooses to live in.

A veteran living in a state where marijuana use is legal or decriminalized, may never get a chance to explain to a possible employer what his or her “misconduct” was. Or worse yet, an employer may pass over an applicant based on his or her discharge from the military, even though what the veteran did was not a state-recognized crime or infraction.

The military has recognized the changing societal norms that surround marijuana. In 2017 then-Under Secretary of Defense A.M. Kurta provided guidance to Discharge Review Boards (DRBs) and Boards of Correction for Military Records (BCMRs) (who review requests for discharge upgrades) that recognized “For example, marijuana use is still unlawful in the military but it is now legal in some states and it may be viewed, in the context of mitigating evidence, as less severe today than it was decades ago.”[xi] This recognition demonstrates that the military must grapple with the conflicting laws and the implications for those who volunteer to defend the nation.

Our Soldier

Where does this leave our soldier after his discharge? He is relocating himself and his family, he is searching for new employment, and on top of all that, he is enduring the frequently years-long process of having his record changed to reflect the changing societal view on marijuana use. Assuredly the military does not want to inhibit those who serve from being able to successfully transition to civilian life; however, the single-incident separation process currently in place seems to tilt the playing field decidedly in favor of those who have not served.

Suggestion and Conclusion

Our soldier’s discharge was justified, he violated the UCMJ. There was no mistake or error in the process used by the military to separate our soldier. The problem lies in the disparate state and federal treatment of marijuana laws.

Congress could step in and help resolve this issue by removing marijuana from the schedule of controlled substances. However, a more likely fix is recognition within the military that societal norms are changing. The Kurta Memo was a start in the recognition process but further guidance needs to be established for leaders at the unit level who deal with soldiers on a daily basis.

The disparity between state and federal laws should not have an adverse impact on veterans after their service is complete. The argument is not that marijuana use should be legal within the military; instead the process of separating a servicemember for a single incident should be reviewed. A recurring pattern of drug use or abuse is certainly grounds for dismissal with the established narrative reasons, but discharge for a single incident of marijuana use should be captured within the narrative reason in such a way that does not inhibit the servicemember from successfully transitioning to the civilian world- a world in which their military infraction is not a crime at all.

[i] 10 U.S.C. 47 §§ 801-946(a)

[ii] Medical marijuana has been used by doctors to help treat seizure disorders, nerve pain, and appetite issues among other uses. The FDA has recognized some derivatives of marijuana as therapeutic drugs, but has not offered a position on marijuana as a drug citing a lack of evidence. National Institute on Drug Abuse, What is Medical Marijuana?, June 2018 from https://www.drugabuse.gov/publications/drugfacts/marijuana-medicine

[iii] Discharges from the military include (in descending order) Honorable, General Under Honorable Conditions, Other than Honorable Conditions, Bad Conduct Discharge, Dishonorable Discharge. See 38 C.F.R. § 3.12

[iv] Depending on which state and the applicable state law, the infraction a military member commits may be viewed differently in the various states.

[v] 21 U.S.C. § 812

[vi] See DEA Mission Statement, from https://www.dea.gov/mission

[vii] See About Marijuana, from https://norml.org/marijuana

[viii] See Map of Military Bases in the Contiguous US, from https://www.nps.gov/nagpra/DOCUMENTS/BasesMilitaryMAP.htm

[ix] Erik Slavin, Navy Imposes New Liberty, Booze restrictions in Japan, Stars and Stripes from https://www.military.com/daily-news/2016/06/06/navy-imposes-new-liberty-booze-restrictions-in-japan.html

[x] Department of Defense Form 214 is the document provided to all separating members of the armed forces. It outlines various facts about the individual’s career- to include the reason for separation.

[xi] Kurta, A.M., “Memorandum for Secretaries of the Military Departments”, Paragraph 26(j), Aug 25, 2017.