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News > Marijuana legalized in Colorado, still unlawful for military, DOD civilians
Marijuana legalized in Colorado, still unlawful for military, DOD civilians

Posted 3/5/2013   Updated 3/5/2013 Email story   Print story


by 1st Lt. Skylar Streetman
50th Space Wing Assistant Staff Judge Advocate

3/5/2013 - SCHRIEVER AIR FORCE BASE, Colo. -- The citizens of Colorado voted to legalize the use and possession of small amounts of marijuana, while still prohibiting its sale, when they passed Amendment 64 Nov. 6.
However, the Department of Defense issued a memorandum Feb. 4 reiterating the Federal prohibitions on marijuana use, possession or distribution by military members and DOD civilians.

Previously, state law authorized only legitimate medical marijuana use; however, now, any adult ages 21 and above may possess up to 1 ounce of marijuana.

Amendment 64 amends Article 18 of the Colorado State Constitution and allows individuals to: grow up to three immature and three mature cannabis plants privately in a locked space, legally possess all cannabis from the plants they grow (as long as it stays where it was grown), possess one ounce of cannabis while traveling and give up to one ounce of cannabis as a gift to others who are 21 years of age or older. Additionally, under Amendment 64, individuals may consume marijuana in a manner similar to alcohol, with equivalent offenses prescribed for driving under the influence.

Amendment 64 proponents expect the new law to be a precursor to the legal commercial cultivation, manufacture and sale of marijuana to the Colorado public. They hope to set up a system that will regulate marijuana in a way similar to the regulation of alcohol - through mass distribution with an excise tax on the sale of cannabis. Colorado officials are currently in the process of drafting the regulations that will govern the commercial sale of marijuana.

On Feb. 4, when the DOD issued its memorandum, most notable was that the Uniform Code of Military Justice applies to military members regardless of state, district or territorial legislation, such as Amendment 64. Thus, military members continue to be subject to prosecution under Article 112a of the UCMJ for marijuana use, possession, or distribution--whether the use, possession or distribution occurs in Colorado or anywhere else in the world. In addition, DOD civilian employees are subject to the restrictions governing drug use found in DOD Instruction 1010.09, DOD Civilian Employee Drug-Free Workplace Program, dated June 22, 2012, and other applicable Department of Health and Human Services Substance Abuse and Mental Health Services Administration guidelines. Moreover, civilian employees and contractor employees who use marijuana may find that they are unable to obtain or maintain the security clearances necessary to perform their jobs.

It is also still a federal crime for an individual to bring marijuana onto a military installation. Any person found in possession of marijuana on a military installation could be barred from base for a significant period of time and ejected from residing in base housing.

Although federal law supersedes legislative initiatives of local governments, Colorado government officials stand behind the decision of their electorate despite growing concerns over the federal implications of this state constitutional amendment. While there has been no significant federal government enforcement response to the legalization of marijuana in Colorado to date, this inactivity does not negate the possibility of federal government action in the future. Regardless, these local initiatives are not binding on the military in the administration of military justice under federal law.

One upshot of Amendment 64 is that Airmen now need to be particularly vigilant to avoid entangling themselves in situations where Colorado civilians may be recreationally using marijuana in their presence. This may mean reassessing off-base living arrangements and being more selective about patronizing establishments where civilians may be using marijuana. While the people of Colorado have voted to change their state constitution, the UCMJ remains unchanged. The mission of the U.S. Air Force is of paramount importance, and Airmen who use marijuana are neither prepared nor suited to carry out that mission.

Bottom line, the DOD will continue to use random urinalysis testing as a means of detecting marijuana use by military and civilian personnel, and commanders will continue to have the authority to bring the full force of the UCMJ against those Airmen who choose to use, possess, or distribute marijuana.

5/14/2013 11:45:05 PM ET
Due to Amendment 64 and similar laws there has been increasing job opportunities known as green jobs. Jobs such as trimmers or budtenders do not technically require consumption possession or distribution. Are military members particularly reservists subject to disciplinary actions for holding those types of jobs I can only think of conduct unbecoming which is sort of a catch all that commanders enforce when an action isn't spelled out in UCMJ.
Curious, Colorado
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