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Punitive Articles of the UCMJ

Article 112a—Wrongful use, possession, etc., of controlled substances

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Text.

“(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.

(b) The substances referred to in subsection (a) are the following:

    (1) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana, and any compound or derivative of any such substance.

    (2) Any substance not specified in clause (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of this article.

    (3) Any other substance not specified in clause (1) or contained on a list prescribed by the President under clause (2) that is listed in Schedules I through V of section 202 of the Controlled Substances Act ( 21 U.S.C. 812).”

Elements.

(1) Wrongful possession of controlled substance.

    (a) That the accused possessed a certain amount of a controlled substance; and

    (b) That the possession by the accused was wrongful.

(2) Wrongful use of controlled substance.

    (a) That the accused used a controlled substance; and

    (b) That the use by the accused was wrongful.

(3) Wrongful distribution of controlled substance.

    (a) That the accused distributed a certain amount of a controlled substance; and

    (b) That the distribution by the accused was wrongful.

(4) Wrongful introduction of a controlled substance.

    (a) That the accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed forces or under the control of the armed forces a certain amount of a controlled substance; and

    (b) That the introduction was wrongful.

(5) Wrongful manufacture of a controlled sub-stance.

    (a) That the accused manufactured a certain amount of a controlled substance; and

    (b) That the manufacture was wrongful.

(6) Wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute.

    (a) That the accused (possessed) (manufactured) (introduced) a certain amount of a controlled substance;

    (b) That the (possession) (manufacture) (introduction) was wrongful; and

    (c) That the (possession) (manufacture) (introduction) was with the intent to distribute.

(7) Wrongful importation or exportation of a con-trolled substance.

    (a) That the accused (imported into the customs territory of) (exported from) the United States a certain amount of a controlled substance; and

    (b) That the (importation) (exportation) was wrongful. Note: When any of the aggravating circumstances listed in subparagraph e is alleged, it must be listed as an element.

Explanation.

(1) Controlled substance. “Controlled substance” means amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, and barbituric acid, including phenobarbital and secobarbital. “Controlled substance” also means any substance which is included i n Schedules I through V established by the Controlled Substances Act of 1970 ( 21 U.S.C. 812).

(2) Possess. “Possess” means to exercise control of something. Possession may be direct physical custody like holding an item is one’s hand, or it may be constructive, as in the case of a person who hides an item in a locker or car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible, however, for more than one person to possess an item simultaneously, as when several people share control of an item. An accused may not be convicted of possession of a controlled substance if the accused did not know that the substance was present under the accused’s control. Awareness of the presence of a controlled substance may be inferred from circumstantial evidence.

(3) Distribute. “Distribute” means to deliver to the possession of another. “Deliver” means the actual, constructive, or attempted transfer of an item, whether or not there exists an agency relationship.

(4) Manufacture. “Manufacture” means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container. “Production,” as used in this subparagraph, includes the planting, cultivating, growing, or harvesting of a drug or other substance.

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