NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) Amphetamine, cocaine, heroin, lysergic acid diethylamide, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 5 years, E-1. (Category 1)
(2) Marijuana, phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-1. (Category 1)
(3) When aggravating circumstances are alleged: Increase maximum confinement by 5 years.
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, wrongfully use __________, (a Schedule __________controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: __________) (while receiving special pay under 37 U.S.C. §310) (during time of war).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused used __________ (a Schedule ___ controlled substance);
(2) That the accused actually knew (he) (she) used the substance;
(3) That the accused actually knew that the substance (he) (she) used was (__________) (or of a contraband nature); (and)
(4) That the use by the accused was wrongful; [and]
NOTE 2: Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the military judge must also instruct on that aggravating factor as an element:
[(5)] That at the time the accused used the substance as alleged, (it was a time of war) (the accused was (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 the armed forces or under the control of the armed forces) (receiving special pay under 37 U.S. Code section 310).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Use” means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance. “Use” includes such acts as smoking, sniffing, eating, drinking, or injecting.
Use of a controlled substance is wrongful if it is without legal justification or authorization. (Use of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who is forced to use drugs as part of an undercover operation to keep from being discovered is not guilty of wrongful use); (or) (b) done by authorized personnel in the performance of medical duties or experiments.) Use of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. However, the drawing of this inference is not required.
NOTE 3: Knowledge of the presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance allegedly used, the following instruction is appropriate:
The accused may not be convicted of the use of a controlled substance if the accused did not know (he) (she) was actually using the substance. The accused’s use of the controlled substance must be knowing and conscious. For example, if a person places a controlled substance into the accused’s (drink) (food) (cigarette) (__________) without the accused’s becoming aware of the substance’s presence, then the accused’s use was not knowing and conscious.
Knowledge by the accused of the presence of the substance may be inferred from the surrounding circumstances (including but not limited to __________). (You may infer from the presence of (__________) in the accused’s urine that the accused knew (he) (she) used (__________).) However, the drawing of any inference is not required.
NOTE 4: Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:
It is not necessary that the accused was aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if the accused had knowledge of its contraband nature. Similarly, if the accused believes the substance to be a contraband substance, such as (cocaine) (__________), when in fact it is (heroin) (__________), the accused had sufficient knowledge to satisfy that element of the offense.
(A contraband substance is one that is illegal to use.)
However, a person who uses (cocaine) (__________), but actually believes it to be (sugar) (__________), is not guilty of wrongful use of (cocaine) (__________).
Knowledge by the accused of its contraband nature may be inferred from the surrounding circumstances (including but not limited to __________). However, the drawing of this inference is not required. (You may infer from the presence of (__________) in the accused’s urine that the accused knew (he) (she) used (__________).) However, the drawing of any inference is not required.
NOTE 5: Missile launch facility. If it is alleged that the substance was used at a “missile launch facility,” the following instruction should be given:
A “missile launch facility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.
NOTE 6: “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance” as discussed in US v. Newman, 14 MJ 474 (CMA 1983) is raised:
I have instructed you that the accused must have known that the substance (he) (she) used was (__________) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew that (he) (she) used (__________) or a substance of a contraband nature.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused’s conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) used was (__________) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:
a. The accused did not know for sure that the substance was not (__________) or of a contraband nature;
b. The accused was aware that there was a high probability that the substance was (__________) or of a contraband nature; and
c. The accused deliberately and consciously tried to avoid learning that, in fact, the substance was (__________) or of a contraband nature, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.
In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) used was (__________) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.
I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) used was (__________) or of a contraband nature. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the substance was (__________) or of a contraband nature, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.
NOTE 7: Exceptions to wrongfulness. The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the use was wrongful. See US v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:
Evidence has been introduced raising an issue of whether the accused’s use of (heroin) (cocaine) (marijuana) (__________) was wrongful in light of the fact that (the accused used it in the performance of (his/her) duty) (the substance had been duly prescribed by a physician and the prescription had not been obtained by fraud (__________). This raises the issue of innocent use. In determining this issue, you must consider all relevant facts and circumstances, (including, but not limited to __________). The burden is on the prosecution to establish the accused’s guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused’s use of the substance was not (in the performance of (his) (her) duties) (as a result of a properly obtained prescription duly prescribed for the accused by a physician) (__________), you may not find the accused guilty.
NOTE 8: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the military judge should, upon a sufficient request, take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 202 set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See US v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:
(__________) is a controlled substance under the laws of the United States.
NOTE 9: Regulatory defects in collection of urinalysis samples. When the evidence reflects “technical” deviations from governing regulations which establish procedures for collecting, transmitting, or testing urine samples, the following instruction may be appropriate. US v. Pollard, 27 MJ 376 (CMA 1989). Military Judges, however, should exclude drug test results if there has been a substantial violation of regulations intended to assure reliability of the testing procedures. Id., see also US v. Strozier, 31 MJ 283 (CMA 1990).
Evidence has been introduced that the government did not strictly comply with all aspects of (Army Regulation 600-85) (__________) governing how urine samples are to be (collected) (transmitted) (and) (tested). In order to convict the accused, the evidence must establish the urine sample originated from the accused and tested positive for the presence of (__________) without adulteration by any intervening agent or cause. Deviations from governing regulations, or any other discrepancy in the processing or handling of the accused’s urine sample, may be considered by you in determining if the evidence is sufficiently reliable to establish that the accused used a controlled substance beyond a reasonable doubt.
NOTE 10: Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308.
NOTE 11: Aggravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, a tailored exceptions and substitutions instruction similar to the one contained in NOTE 11 for the offense of Wrongful Possession (Instruction 3a-36a-1) should be given.
NOTE 12: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. If an issue of innocent use on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-13-4, Ignorance or Mistake of Fact - Drug Offenses, should be given.
e. REFERENCES: 21 USC section 801-971; 21 CFR section 1308 (Caution: This CFR changes frequently.); MRE 201 and 201A; US v. Harper, 22 MJ 157, 161 (CMA 1986); compare US v. Murphy, 23 MJ 310, 312 (CMA 1987) (distinguishing Harper) with US v. Mance, 26 MJ 244 (CMA 1988),overruled on other grounds, US v. Payne, 73 MJ 19 (CAAF 2014); US v. Newman, 14 MJ 474 (CMA 1983); US v. Pollard, 27 MJ 376 (CMA 1989); US v. Strozier, 31 MJ 283 (CMA 1990); US v. Thomas, 65 M.J. 132 (CAAF 2007).