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If the Army is accusing a soldier of possessing the

substance spice/k2 but the substance...
If the Army is accusing a soldier of possessing the substance spice/k2 but the substance was proven to be non illegal/ not spice in the local county courthouse, and the store which is in the same county as the base openly sells it because it has been proven to be legal, can the military call this incense a "drug" when the local courts and law enforcement says otherwise and take action against the soldier such as a bad discharge?
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Answered in 12 minutes by:
4/12/2017
Allen M., Esq.
Category: Military Law
Satisfied Customers: 19,657
Experience: Lawyer and current JAG officer.
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

A bad conduct discharge would require a court martial. To get a court martial conviction, the prosecution would have to prove a violation of the law in regards ***** ***** substance. So, command can't just give a BCD because they feel like it. There will be due process and the government will have a burden of proof to meet.

Now, that being said, nothing about what the state decides matters for the military. The state government and courts are an entirely different jurisdiction. Their determinations have no precedential effects on what the military decides. There have certainly been times (though it is rare) for a state court to acquit someone and the military court to find the person guilty. This is not "double jeopardy" because again, they are two separate courts of independent jurisdiction. So, what the local courts and law enforcement says is not really relevant to the question of what the military chooses to do. Evidence presented about those same facts that the local enforcement used to reach their decision IS relevant. Note that it is the evidence that is relevant, not the determination of the state.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 10 months ago
What if the soldier is caught with the substance on the last day of his military contract. The soldier was in the Army reserves but got asked to be put on an active duty assignment with active duty personnel. On the soldiers last day of these active duty orders he gets caught while going through the gate to get on base and gets searched. Even though it is the last day of this active duty assignment he already received his honorable dd 214 for this four months long active assignment four days prior. Does this change anything? And does his reserve unit along with his active duty unit have the right to know of this ordeal, being everyone from pvt to col. and begin rumors that he stole weapons from the armament that he worked at while being on this active assignment after the armament couldn't find two weapons after they had to recount all the weapons in this 10,000 plus arsenal of weapons after finding out of his accusation of being caught with "drugs:?

The only thing that it changes is the paperwork that command would have to do. They'd have to obtain a legal hold and press charges in order to extend you beyond your active duty contract time.

So legally no, it doesn't make any difference in terms of whether or not they are allowed to charge you. It just changes what actions the active duty unit would have to take.

Yes, the reserve unit can be told about it. Commanders are allowed to pass on information of that nature to other commanders, when acting in the scope of their command authority.

How others found out is suspicious, but being under investigation is not actually confidential.

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Customer reply replied 10 months ago
What about the rumors of false accusation when the armament he worked at during this active duty time falsey started? they found the weapons but there was a time period of false accusations among the individuals that he worked with.

I'm sorry. I am just seeing this second question.

Rumors don't necessarily rise to the level of an illegal act. If I say "I think he took them" that is an opinion statement and is not illegal. If I say "John took them. I saw him take them and put them in his car" which is false is an illegal statement under civil law. You could sue individuals making affirmative statements of fact that are false, but you'd do that in your own capacity in small claims court.

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Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

Allen M., Esq.
Category: Military Law
Satisfied Customers: 19,657
Experience: Lawyer and current JAG officer.
Verified
Allen M., Esq. and 87 other Military Law Specialists are ready to help you
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Customer reply replied 10 months ago
thank you, ***** ***** after the indivduals made these false accusations can someone attempt to sue them for slander?

That depends on the state where it is taking place, but typically the statute of limitations for personal injury is two years.

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