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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19231
Experience:  Lawyer and current JAG officer.
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I have over 20 years in the Army Reserve, and failed a drug

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I have over 20 years in the Army Reserve, and failed a drug test for pain killers last drill. I had a prescription for them, but it was over six months old. I went to the doctor one week after drill and was diagnosed with a stress fracture in my foot, he prescribed the same pain killer that I tested positive for. My Commander is a "by the book" officer and I am concerned he will use it against me to the fullest, and I will lose retirement and benefits. I have heard of an unintentional ingestion defense, and wonder if this is a better option? Thank You

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.


The problem with that defense is that it must be believed, which most often it is not.


A board is going to want to give you your retirement. They simply need a good reason to not discharge you based on drug use. You will be entitled to a board based on your length of service.


So, in all honesty, the best approach to the board and your commander will be the truth. It will be more believable and confirmable than the often used and rarely successful "unintentional ingestion" defense.

Customer: replied 4 years ago.

My concern is is a bad discharge and loss of benefits, if they push the issue. I was planning on retiring soon anyway, I just

want to leave on a good note. What are the chances that they will take the circumstances into account?

They legally have to take your long term into account.


The problem here is that the damage has already been done. The test is already failed. So, your options here are limited. Claiming "unintentional ingestion" is, on your facts, about the least successful option.


You are asking them to believe you, that you had no idea that you took the medication. You'd essentially have to get in front of the board and lie. It's harder than you think to lie convincingly.


That defense really should be limited to those with absolutely no choice, where the truth will get them into trouble because the truth isn't defensible at all.


Here, the truth is defensible. You simply had an outdated prescription which, as soon as you went to the doctor, was renewed.


A board is going to be able to understand that and, based on your long history, they'll want to believe that.....because it's true and you have plenty of evidence to back it up.


I think you weaken your position by trying to rely on the last resort defense of those with no excuse for their behavior at all.


Customer: replied 4 years ago.

I understand that the last resort defense is a bad idea, just looking at options. The problem is that the old prescription was for an unrelated injury, and I took it to get through the training. Again, I am seriously concerned about the bad discharge and loss of retirement. Is going before the board an unavoidable conclusion?

Right now, with any drug offense, commanders must process you for separation. They have to. They have no legal options available to them, as the right to choose has been taken from their hands by general orders.


So, you will be processed for separation, period.


Your right is to waive the board and simply be separated or you can use the board hearing to try and request retention. You can offer to retire in lieu of the administrative separation, but they don't have to accept that.


I'm sorry, but there is no legal path around this situation. The only way through it is straight through it. I understand that you are seriously concerned about a bad discharge and loss of retirement, but that is already in motion. Your choice now is how to face that and your best option is to go before the board and give them some reason to retain you or let you retire.


And "unintentional ingestion" is not typically a defense that board's appreciate. I'm simply speaking statistically here, based on the way I've seen these play out over the years. A board is more likely to respond to candid honesty and taking responsibility for your actions than they are that defense.


I'm not going to lie to you here and say that you're going to win the battle here. You may not, but I believe that being honest with them and taking responsibility will give you the best chance.

Customer: replied 4 years ago.

Not great news, but thank you for reality of it. I have spoken with my Commander, and told him about the injury and that I have a prescription, not knowing about the six month rule until after the conversation. I have not turned in any paperwork, should I contact JAG before I do anything else, or should I let the process play out?, by the way, I am an officer.

You can try to talk to JAG, but they may not be willing to talk to you until there is actually some separation process that they are going to take.

Typically, it is not until they select what action they are going to take that your right to counsel comes into being.


So, feel free to call JAG defense and ask them if they'll see you at this time.



Customer: replied 4 years ago.

What is the worst case scenario, will I loose everything that I have worked for the last 20+ years? Do I have any recourse?


I've told you what your recourse is.


Before they can separate you, they have to give you a board hearing. There is an appeal after that board if you don't win it.


That's it. I wish I could tell you that you have lots of different options, but you don't. Our legal system doesn't work that way. Drug offenses are controlled by higher level policy which is "zero tolerance" and takes any sort of discretion your commander may have had away from him.


You'll get a board. You'll get appeal rights from that board. Your longevity will be taken into consideration.


Yes, the worst case scenario is that you lose your retirement and end up with a discharge that is not favorable. You may also be able to win your board, win the appeal or have the Secretary level decide to grant you retirement in lieu of separation by considering your longevity.



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