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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19225
Experience:  Lawyer and current JAG officer.
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I am in the national guard currently going through the process

Customer Question

I am in the national guard currently going through the process of an I.S.T. transfer. My last drill with my current unit is AT which is in a couple of days. Today I stopped by the armory to finalize my I.S.T. transfer once I left I realized I left some gear in my locker and headed back an hour or so later. My nco unlocked the locker room for me then preceded to ask if I was taking any medications which shocked me since he himself and many others have personally seen me take my ADD medication (aderoll). He then panicky hurried back to the office where I followed, he got the commander on the phone to inform him that I was infact on medication which showed up on my last drug test which I failed. This is not that big of an issue since I do infact have a prescription, however I also was flagged for thc. My nco believes everything will be cleared once the lab receives my doctor's letter of approval for the medication but I am concerned about the thc results. Is it possible for the lab to respond with a false-negative? If not what kind of punishment would I be facing and could it be cleared off my record? I am two classes away from obtaining my associates degree, will this forfeit my gi bill? I've served 4 years so far, served a tour in Afghanistan where I received my CIB and have had only one negative counseling statement in my career. I am to have a sit down with the commander tomorrow any information or advice would be greatly appreciated.
Submitted: 4 years ago.
Category: Military Law
Expert:  Allen M., Esq. replied 4 years ago.
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.

False negatives are a commonly stated defense, but there is no solid evidence of a false negative. By that, I mean that there has never once been a test set forward where the sample was absolutely known to have no THC where the sample then showed THC following the more stringent screening.

Now, there is plenty of anecdotal evidence of a false positive, but that is entirely based on us believing the person that says that they didn't actually use any THC.

So, unfortunately, your statement alone that this is a false negative isn't going to be enough to convince command not to take some action. They'll pretty much have to. All positive drug tests, not related to a prescripted medication, must be processed for separation from the military for drug abuse. That would result in a General Discharge, at least unless you are entitled to a board hearing based on 6 or more years of service (or if they seek an Other than Honorable discharge). Only before a board hearing would you even have the ability to plead the "false positive" argument.

If you have less than 6 years and they don't go for an OTH, they can just give you a General through a notification process discharge, where you'll have no real ability to fight it.

If you get anything less than an honorable discharge, you'll lose the GI bill.

I doubt they'll go for any serious punishment, beyond an Article 15 (non-judicial punishment). You'd have to demand trial by court martial to end up with a record, but fi you do that it will be permanent. Only the President can remove a military conviction, so it stays on your record forever.