States across the country are claiming to have legalized marijuana. While they have the authority to do so for state law only, marijuana still remains an illegal Schedule 1 drug and controlled substance to the federal government. Many people, including gun owners, security clearance holders, and service members will soon learn that marijuana use is certainly still illegal. Anybody falling into one or more of these categories has three major concerns.
1. Marijuana users will fail future NICS firearm background checks
This is a collateral consequence that many fail to consider. Marijuana users are considered to be “prohibited persons.” Question 21(e) of the NICS questionnaire (ATF Form 4473 (5300.9)) asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” To give you an idea of how serious the federal government considers the issue of marijuana use to be, the remaining sub-questions in section 21 (prohibited persons) deal with felony arrests and fugitives from justice. The key words to focus on in question 21(e) are “unlawful” and “user.”
Marijuana is illegal in the United States. There can be no lawful use of marijuana in any state. Therefore, all marijuana use is illegal with regard to the federal government and the aforementioned form. That said, the question asks if you are a user. This question, for now, fails to address possession, distribution, or investments in marijuana. As written, you are not presently required to disclose if you have possessed, distributed, or invested in marijuana manufacturing or distribution through dispensaries or other means. If you intend to visit a dispensary, you will need to provide ID, which will create a record of your purchase. There are avenues to pursue an appeal of the NICS determination, but the process can be difficult to navigate in most states.
2. Marijuana users will have their security clearances denied or stripped
Not all clearance applicants understand that all forms of marijuana use are illegal. Some applicants and clearance holders occasionally visit dispensaries for recreational use or claim that their marijuana use is for medicinal purposes. Regardless of whether the purchase is at a dispensary or the user has a marijuana card, the federal government considers the use to be illegal.
Guideline H (drug involvement and substance misuse) of the National Security Adjudicative Guidelines explains that use of controlled substances “can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical and psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.” See Guideline H. Additionally, the SF-86 (questionnaire for national security positions) specifically asks about illegal use, purchase, manufacture, cultivation, trafficking, production, transfer, shipping, receiving, handling or sale. See SF-86, Section 23. Clearly, this goes well beyond including just marijuana users. This includes investing in stocks and dispensaries. As previously stated, the federal government considers marijuana to be a Schedule 1 controlled substance. Prior marijuana use is not a bar from obtaining a security clearance, but it will make obtaining a favorable adjudication more difficult.
3. Marijuana users will be processed for separation from their military branch
Some service members are tempted to visit local dispensaries in states that claim to have legalized marijuana. Again, you will create a record of visiting that dispensary and of any purchases made. The government does not differentiate between smoking and edibles. Even most CBD products contain a small amount of THC, which is a problem for polices that are considered to be zero tolerance. The record created during a visit to a dispensary might later be used to administratively separate the service member for violations of the UCMJ.
Article 112a of the UCMJ (10 U.S. Code § 912a) deals with wrongful use, possession, manufacturing, distribution, importation and exportation of controlled substances. Article 112b lists the specific substances and includes marijuana. Therefore, a service member involved in using, possessing, manufacturing, or distributing marijuana in any state or country is in violation of the UCMJ. That service member’s military branch might exercise a mandatory processing for separation policy, initiating separation proceedings against a service member believed to be in violation of Art 112a. The service member has due process and can challenge the action in an administrative separation board or court-martial.
While marijuana use might appear to be legal in your state, you should consider your relationship to the federal government. Consider that, for now, the federal government still considers marijuana to be a controlled substance and illegal drug and that they might choose to enforce federal laws under certain circumstances. Ask yourself if the benefit outweighs the risks.
Anthony Kuhn is managing partner with Tully Rinckey PLLC.
Editor’s note: This is an op-ed and as such, the opinions expressed are those of the author. If you would like to respond, or have an editorial of your own you would like to submit, please contact Military Times managing editor Howard Altman, haltman@militarytimes.com.
