Substance Abuse And Parenting in Colorado Springs Divorce Regarding Military Members

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Substance abuse is common in our society and may well impact the quality of parenting. As for military members, there are unique provisions under federal law.

All military personnel are subject to random urine analysis. If they test positive, there are a variety of negative impacts up to and including termination of service. Additionally federal military personnel. national guard and military reserve members under federal activation fall under federal law and state law as applicable with regards to a prohibition of marijuana usage. They are subject to the Uniform Code of Military Justice (UCMJ) when in federal service. Marijuana is a Schedule I controlled substance under federal law, and its possession, use, or distribution is prohibited, regardless of state law. 21 USCS § 812. Article 112a of the UCMJ criminalizes the wrongful use, possession, manufacture, or distribution of controlled substances, including marijuana, for individuals subject to the UCMJ . 10 USCS § 912a.

National Guard members fall under both state and federal law, When serving under the federal authority of Title 10 U.S.C., National Guard members are subject to the UCMJ and federal law. Lilly v. Schwartz, 713 F. Supp. 2d 15 (D.D.C. 2010).  However, when serving under the state authority of Title 32, they are not subject to the UCMJ, but are subject to state military codes and regulations. In Colorado, National Guard members serving under state authority are obligated to comply with state law which permits the use of marijuana. Colo. Const. Art. XVIII, Section 16, People v. McKnight, 446 P.3d 397 (Colo. 2019). Specifically, C.R.S. 28-3.1-550(2)(a) lists marijuana, along with other substances such as opium, heroin, and cocaine, as prohibited substances. C.R.S. 28-3.1-550.

For military reservists, the UCMJ does not recognize state legalization of marijuana. 21 USCS § 812. Reserve servicemembers are subject to UCMJ jurisdiction when on active duty or performing training under Article 2(a)(3) of the UCMJ. 10 USCS 802, United States v. Wolpert, 75 M.J. 777 (2016). Additionally, jurisdiction can also be established under Article 2(c) of the UCMJ based on a case-specific analysis of their relationship with the military at the time of the alleged offense. 10 USCS 802. In United States v. Phillips, the military court found that a reservist who used marijuana while traveling to her reserve location was subject to UCMJ jurisdiction because she because she travelling under military travel orders. 58 M.J. 217 (2003).

In summary, while state law permits marijuana use, members of the U.S. military reserves remain subject to federal law and the UCMJ. United States v. Wolpert, 75 M.J. 777 (2016), United States v. Phillips, 58 M.J. 217 (2003). Additionally, despite the legalization of marijuana under Colorado law, its use remains prohibited for members of the state national guard forces under the CCMJ. C.R.S. 28-3.1-550, C.R.S. 28-3.1-102.5.

Turning Change Into Opportunity in Colorado Springs, Colorado Divorce and Child Custody

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