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Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.
A commander is almost never going to accept the statement that you did not take the drug when they have a positive urinalysis. That is just the reality at NJP. It is not admitting guilty to accept an NJP, but you are essentially leaving the entire decision to your commander, the person offering NJP in the first place.
Going to court martial grants you many rights, like the right to counsel and representation. Rules of criminal procedure and evidence apply. Very few "naked UA's" actually result in a conviction at court martial (this is what we call cases where all you have is the UA to go against the word of the member).
All that said, some people do lose at court martial. When they do, they are necessarily facing great levels of punishment. If you are found guilty of a drug offense at general court martial, it will be considered a felony conviction in every state. If they go to a lower level of court martial, then it wouldn't be a felony in most states. You would have no control over what level of court martial they took it to.
Regardless of the court martial level, confinement is a possibility.
When I was speaking with the JAG officer he told me it would be a Special court martial offense due to the moderately low levels found during the urinalysis. Is there no way that he could make that call?
He was making an educated guess based on prior history with that command.
It's certainly possible that it would be a special. We don't generally take single use drug offense cases to a general court martial and tend to handle them at special or even summary court martial if we can manage it.
That being said, I wanted my answer to include what was possible....not what might happen. It is possible for them to charge this at the general court martial level.
Regardless, even as a special court martial, some states will consider it a felony conviction. Some states consider any conviction where the maximum punishment available (not what was actually given) includes more than a year in confinement a felony. Some states consider it a felony where a year or more confinement is available.
Special courts have one year confinement available to them to grant, so some states will consider it a felony and some won't.
Ok I really appreciate it. I just have one more concern. I was also made aware that whether I accept the NJP or take this to Court Martial, any employer that is concearned with the OTH that comes along with either of these will find out about this reguardless if I am convicted or it is on my military record. So in essence, taking this to court matial has better odds than NJP for the shear fact that Ill get maxed out at NJP and most likly not in court.
I'm not sure what the question is there.
Command will certainly seek a discharge, regardless of what choice you make in forum. They'll use the administrative discharge process and that discharge, regardless of whether it is an OTH or a General, will indicate the basis for the discharge as drug abuse.
Many employers will become aware of that fact, if they do a background check. What that means for you is that any higher level job (those where employers are willing to pay for background checks) will end up being closed to you.
Now, if you are acquitted at trial, they can't discharge you on those same facts.
I really appreciate your assistance. Thank You.