The notification also outlines the member’s rights at the administrative separation board, including whether the member has the right to a hearing.  It is always advisable to consult with an experienced military drug crime attorney before completing this paperwork to make sure your rights are understood and properly elected.

A service member may have the right to request an administrative separation hearing, which is a proceeding to fight the separation or characterization. Whether a member has this right depends on how long a service member has served in the military and whether he or she is are being processed for an Other than honorable discharge. Generally, an enlisted member being processed for drug abuse will be entitled to a hearing because they are subject to receive an Other than Honorable discharge.  Even if the military member is not entitled to a hearing, they are always entitled to present a separation package to the commanding officer in order to demonstrate that they should be retained and/or receive a more favorable characterization of service than what was recommended on the notification. 

When the military member suspected of drug abuse is entitled to an administrative separation hearing, the board will have to decide 3 questions:

1. Whether or not the military member committed drug abuse as alleged by the command;

2. If so, whether the member should be retained in the military or administratively separated; and,

3. If the member is to be separated, what characterization of discharge should be granted.

There are four ways an administrative separation may be characterized: Honorable, General (Under honorable conditions), Other than Honorable (OTH), and entry level separation (ELS). An OTH is the worst characterization of discharge authorized by most ADSEP boards and will deprive the member from receiving any VA benefits based on that period of service.

Each armed force has different regulations governing the rules for separation. The Navy is regulated by the MILPERSMAN section 1910 for enlisted personnel. The Army follows AR 635-200. The Marine Corps uses MCO 1900.16. The Air Force follows AFI 36-3208. The Coast Guard follows COMDTINST M1910.2.

Drug Crimes in the Military Justice System

Military members charged with violating Article 112(a), UCMJ face up to 5 years in the brig for just one specification.  Depending on the level of court-martial, a military member’s case will start with either an Article 32, UCMJ hearing or an arraignment. 

If you are being sent to a general court martial, your case will begin with an Article 32, UCMJ hearing.  In the military the convening authority is required to hold an Article 32, UCMJ hearing prior to referring an accused to a general court-martial.  An Article 32, UCMJ hearing is similar to the civilian’s grand jury hearing.  However, instead of a grand jury, a preliminary hearing officer makes all the determinations at the Article 32, UCMJ hearing.  Specifically, the preliminary hearing officer determines whether the evidence presented at the hearing is enough to show that there is probable cause that the accused committed an offense under Article 112(a) of the UCMJ. After the hearing, the preliminary hearing officer drafts a report with his or her findings and recommendations about the evidence presented and the case.  Once the report is received, the commanding officer will decide whether or not to send the military member’s case to general court martial.  If the commanding officer sends the case to general court martial then the military member will be arraigned in court by the judge presiding over their case.   

For cases being sent to Special Court-marital, no Article 32, UCMJ is conducted, and the case is sent directly to arraignment.  An arraignment is the first formal court hearing once the charges have been referred to a court-martial.  At this hearing, the military judge will advise you of certain rights and read you the charges being prosecuted by the trial counsel. The military judge also requests that the accused enter pleas to the charges and plead guilty or not guilty to the charges referred against him/her, or preserve the option and reserve pleas in accordance with the Trial Management Order (TMO).

Once the TMO is completed the trial can begin.  It’s important to know that there are different theories that can be used to charge a military member with Article 112(a), UCMJ. Some of those theories include:

1. Wrongful Use of a controlled substance

2. Wrongful Possession of a controlled substance

3. Wrongful Manufacture of a controlled substance

4. Wrongful Introduction of a controlled substance

5. Wrongful Use of a controlled substance with the intent to distribute

6. Wrongful Possession of a controlled substance with the intent to distribute

7. Wrongful Manufacture of a controlled substance with the intent to distribute

8. Wrongful introduction of a controlled substance with the intent

9. Wrongful importation or exportation of a controlled substance.

Depending on the level of court-martial, a military member convicted of violating Article 112(a), UCMJ can be sentenced to up to:

• Dishonorable discharge,

• forfeiture of all pay and allowances, and

• confinement for 15 years.

Being sent to a military court-martial is terrifying and finding the right military defense attorney can be overwhelming. Know that the first step to building a strong defense against criminal charges is building a strong relationship with your attorney. We are here to listen to and review the facts of your case, and begin working on your defense. Contact our office to set up a time to talk an experienced military drug crime attorney Matthew J. Thomas today.