The Virginian-Pilot reports here that the Navy is processing 16 sailors assigned to the USS BATAAN (LHD-5) for administrative separation (or adsep) from the service for using or dealing Spice. Spice is a common street name for salvia divinorum, an herb native to Mexico which induces hallucinogenic effects when ingested. Although some states, including Florida, have laws prohibiting the use or possession of salvia, it is not currently listed as a controlled substance under the Federal Controlled Substances Act (CSA). Recently, the DEA has issued a notice of its intent to place certain synthetic cannabinoids on the CSA which would include the active constituent of salvia and other herbal substances (link here). The news off BATAAN comes on the heels of other highly-publicized cases from the Naval Academy and the Air Force Academy where midshipmen and cadets were expelled for using Spice.
In the military, drug use offenses are normally charged as a violation of Article 112a of the UCMJ. Depending on the branch of service, 112a charges may be referred to court-martial or to non-judicial punishment (NJP or Article 15). Since Spice is not currently prohibited under Federal law, the military generally would charge the use of Spice as an orders violation under service regulations which prohibit the use of any substance, regardless of whether the substance was listed on the CSA, if the use was intended to induce intoxication (i.e. “huffing” glue or aerosols). Recently, however, the military services have all implemented regulations which specifically apply to synthetic cannabinoid substances like Spice.
If you are charged with or suspected of having used Spice, there are some things you should know in order to protect your rights. First, you do not have to make any statement to criminal or command investigators if you are accused of drug abuse and you have the right to consult with a military defense lawyer prior to making any statement. Second, if you are informed your case will be referred to NJP or Article 15, you may have the right to refuse NJP. The Virginian-Pilot article reports that all 16 BATAAN sailors went to NJP before being processed for administrative separation. In the Navy, if you are assigned to or embarked on a vessel, you do not have the right to refuse NJP. If you are assigned to a shore command, the decision whether or not to refuse NJP is an important one that should only be made after consultation with a military defense lawyer. Contrary to popular belief, there is no right to “demand” a court-martial but your command may choose to refer your case to court if you refuse NJP.
Administrative separation is a process separate and apart from any court-martial or NJP proceeding. If your command advises you that your drug abuse case is being referred for an adsep, you have the right to have your case heard by a panel of members and to be represented at the hearing by your military and civilian defense lawyers. It is only in the very rare case that you should ever consider waiving your right to a board as doing so will virtually guarantee that you will receive an Other than Honorable (OTH) discharge from the service. The board may still recommend an OTH after a hearing but it also has the ability to recommend retention in the service or a more favorable characterization of discharge (an Honorable or General under Honorable conditions). Under most circumstances, the military cannot award you a less favorable discharge than that recommended by the board so you have little to lose in electing your right to a board.
For more information on your rights in a drug use case in the military, contact an experienced military defense lawyer for a free initial consultation.