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.
Hello, On February 24th my son was initially pulled over by a California state trooper for excessive speed. He was accompanied by two other Marines riding in the truck cab and all three have sworn the cruise control was set on 60 mph. The officer used unfair tactics on my son trying to produce evidence of DUI and even lied to the other two Marines, telling then that my son told him that there was Spice in the vehicle. Having been taught to stick together and not compromise their Honor, the other two Marines retrieved a bag of Spice from the vehicle. At that time the officer changed the citation from speeding to accusation of a DUI and arrested my son. He took all three to the Joshua Tree jail and called PMO. My son’s breathilyzer reading was zero and they performed a urinalysis (results are yet to be returned). All three Marines have been charged with possession and disobeying a direct order and my son also has the DUI charges to deal with. In addition these Marine’s 1st Sgt made them write a statement (were told they had no option) and to be completely honest in the statements because they were for his use only and he would be easier on them. As a result all three wrote in their statements that they had smoked a small amount of Spice earlier in the day before being pulled over. All three also provided urine and I believe they were all negative. These statements were released to Legal even though the 1st Sgt said he wouldn’t do that. Also I believe the statements obtained from the 1st Sgt were illegal and should be remove from evidence. It appears that all three are going to be kicked out with less than honorable discharges. My son is one of the top Marines in his unit and was eligible for E4 this month…only 16 months after enlisting. He is a great kid…but made a mistake…a mistake that I consider minor when compared to possession of controlled substances that are illegal in the private sector (pot, cocaine). I also consider their charge a lesser offense than a 19 year old busted for illegal possession/consumption of alcohol. I believe these guys should get a break and be able to preserve their careers.
I totally agree with you . The law need to get out here and find the one selling this and that would do away with it all. They can’t catch a killer but they can sure pull over someone for speeding.
I support your belief, Jim. A fellow Marine told on me for having spice when I was on deployment on a ship with a MEU recently, and NCIS and the Navy Master At Arms (like Marine’s PMO) badgered the hell out of me and told me that if I gave them the spice that I had, they would probably dump it (over the side of the ship, into the water). Well, that did not happen, of course, and I was NJP’d with Article 112a and paperwork is in the works for Admin Sep. Like your son’s 1stSgt, my SgtMaj told me to be honest and upfront and tell them (NCIS and the MA) exactly what happen and where the spice was.
I would like to fight it, but they ‘say’ it is mandatory AdSep when this happens. I don’t feel like giving up; I sure hope your son and his buddies can have someone go to bat for them, unlike anyone at all in my chain of command.
Hey there Jim,
I am a LCpl in the Marines. Last Friday another Marine and I were pulled over on Twenty-Nine Palms. We had in our possession spice, as well as paraphernalia. PMO took us to jail and read us our rights, at that time I told them I wasnt going to make a statement nor answer any of the bogus ass questions…after invoking my right to remain silent and seek legal counseling, PMO continued to question me (which is illegal). I am sorry to hear that your son is in somewhat the same situation. However he should have kept his mouth closed about everything. He cannot force your son to incriminate himself. I hope there is still time for your son to make it through this. If he has not already contacted base legal he needs to do so. And he should also be on the same page with his fellow Marines. I am currently waiting to hear from my CO about my NJP. I will more than likley refuse NJP and hope for a summary court-martial. I would much rather do 30 days (25 for good behavior usually) then do 45/45 restriction, and check in with the duty every two hours! I will more than likely be Ad-Sep’d either way. If you have any questions Jim, please feel free to ask! Best of luck to your boy! (My Brother) Let me know how it turns out!
~Semper Fi!
LCpl Easy B
Hi
Sorry to hear about your situation. Hope the best of luck with you. But can you tell my please what the difference between njp and court? My son wanting to go against the board on his case.
My son(who is a Marine) was just detained and questioned by CID today because one of his fellow Marines got popped for using spice and turned in several of his Marine brothers as users, 8 of them to be exact. His room was searched and cleared and he was taken to the ready room. He had told CID that he had not used and they kept calling him a liar and using intimidation to try and break him but he wouldn’t. When they got him to the ready room they told him that they had a warrant for him to be arrested and go to the brig for ten years and if he didn’t stop lying and confess to what he had done, he was going to be arrested. He kept telling them he did nothing wrong but they weren’t having any of it. So finally to keep himself out of the brig he admitted to using once but that wasn’t good enough for them and they kept insisting and badgering my son and by the end of his statement he had admitted to several occasions of use to keep from going to the brig. He has maintained his innocence to me through out our conversations but said he confessed so he wouldn’t go to jail. But I just got a call from him and they lied to him and arrested him anyway and he is on the way to the brig in Charleston, SC from Beaufort Air Base in Beaufort, SC.
What gives the federal government the right to use coercion to get Innocent military personnel to confess to things they didn’t even do. These soldiers are risking their lives, are under paid and then are mistreated by others to be treated by our government like this over a substance that is widely legal in the united states, so how come so many are being discharged for it? What ever happened to REHABILITATION???? And Better than that HONESTY????? Why do honest military people have to admitt to being guilty when they aren’t so others in charge feel like like they are GOD???!!!
My son is a good Marine who has never been in trouble and made Lance Corporal within 18 months of his enlistment and now at this point I HATE THE MARINES!!!!!
I am in a similar situation.
And I would love to know how the situation turned out.
Hi
I’m trying to get info and advice my son in the marine is being held cause his test came back positive for meth and ameth. After returning from his 10 days leave but he never did anything. During the leave he was sick til the day he return to Pendleton. He took sinus cold pills and I gave him some migraine pills so how the hell can he test positive for drug. Now being held waiting njp for something he didn’t do. What can he do? Any advice? Please
I requested An admin sep board but never saw one
It came down to special court martial or after 68 days of restriction
I accepted njp and was processed out
Why would I be able to elect admin sep board but not recieve one ?
I’m extremely confused about my adsep because I turned myself in to SACO and they are trying to njp me for being honest and seeking help. I was self referred but my SNCO lied on a 5×8 I refused my njp but I don’t know if special court martial is a good idea