International - Court-martial Ruling Clarifies 'Legal' Drug Policy on Spice

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CAMP FOSTER, Okinawa -- A recent ruling by a Marine judge serves as a warning to any servicemember who is caught with one of the many "legal" herbs and designer drugs that haven’t been banned by military officials yet.

Just because a substance may not be technically illegal doesn’t mean its use or distribution is not punishable under the Uniform Code of Military Justice, Lt. Col. David Jones ruled during the court-martial of Lance Cpl. Dante Robert Larry last week.

During Larry’s three-day trial, the defense argued that Spice, a herbal alternative to marijuana sold in head shops as incense or an air freshener, was not banned by Marines at the time Larry distributed the substance on Camp Courtney in December 2007.

But Jones denied the defense’s motion to dismiss the charges, stating that the Department of Defense had modified Article 112 of the UCMJ several years ago to cover such cases.

The modification was made when it became apparent to Defense officials that there were substances being marketed that had not yet been made illegal that could impair a servicemember’s ability to perform their duty, Jones said.

To cover such cases, Article 112a covers both drinking alcohol and being high -- no matter the source of the high -- while on duty.

Jones ruled that possessing such a substance and intending to distribute it with the intent to get high was a violation of Article 112a.

He likened it to glue sniffing -- owning glue is not illegal, but the act of sniffing glue could be deemed so, he said.

The seven-member jury panel found Larry guilty and sentenced him to six months in the brig and a bad conduct discharge.

During testimony at Larry’s court-martial, Special Agent Michael Cote of the Naval Criminal Investigative Service said unit commanders had asked NCIS to investigate the use of the herb early last year "because it has been widely abused and seen to be a problem."

The charges against Larry -- conspiracy, violation of a general order, and possession and distribution of Spice -- stemmed from that investigation.

Cote said users claim it can be 80 to 100 times more potent than marijuana.

In September, Marine Corps Base Japan prohibited the use, possession and distribution of spice and other "legal" drugs on all Marine bases in Japan.

The Army followed suit on Okinawa in October, said Chip Steitz, 10th Support Group public affairs officer.

"We have developed a very proactive program informing our servicemembers and their families about the use of these products," Steitz said. "Concerning specific cases, these represent ongoing investigations and therefore we cannot discuss issues relating to potential punitive actions."

The "legal" drugs banned on other bases in Japan vary, with spice specifically listed on some, but not others. For example, the Navy bans spice on all of its bases in Japan, including its detachment at Misawa Air Base, where the Air Force does not specifically name spice.

Kadena Air Base does not name spice, but bans another substance, called Salvia.

But even if a substance is not specifically banned, servicemembers can still be charged and found guilty under Article 112a.

The ban of spice and other "legal" highs on Marine and Navy bases in Japan supplements Secretary of Navy Instruction 5300.28D, issued in 2005, which prohibits abusing lawful substances, such as cough syrup and computer keyboard cleaners to produce "intoxication, excitement or stupefaction of the nervous system."

Ruling Clarifies 'Legal' Drug Policy, June 11, 2009, Stars and Stripes|by David Allen and Cindy Fisher