In a published decision in United States v. Mull, 76 M.J. 741, No. S32367 (A.F. Ct. Crim. App. Jun. 22, 2017) (en banc) (link to slip op.), Chief Judge Drew writes for a unanimous court to explain that:

[U]se of a controlled substance is wrongful unless it is justified or authorized, for example by a doctor’s prescription directing a particular use. Our decision in [United States v. Lancaster, 36 M.J. 1115 (A.F.C.M.R. 1993)] rested on the erroneous, contrary presumption that using a prescribed controlled substance for a medical purpose other than the prescribed one must also be lawful absent a specific prohibition. Lancaster’s holding, that the use of a controlled prescription drug for an ailment other than one for which the drug was prescribed cannot be punished under Article 112a, is overruled.

Slip op. at 8 (emphasis in original). This holding seemingly reaches any surplus prescription drugs retained by a person subject to the UCMJ and later used for any ostensibly legitimate – but different from the original – purpose. The case, however, involved a guilty plea to a much narrower set of facts. Airman First Class (E-3) Mull pleaded guilty to wrongful use of diazepam, despite having a valid prescription for diazepam at the time of his use, based on the following:

At several points over the course of the charged time frame, I was given a prescription for diazepam from my medical provider to help treat pain I experienced due to the herniated disc in my back. During this same time frame, I was also using heroin on a regular basis; and my tolerance from heroin was increasing. To augment the sedative effect of the heroin I was injecting intravenously, I would take diazepam even when I did not have any back pain in an effort to augment my heroin use and also to help control my withdrawals from heroin. I knew that this was wrong because it wasn’t the reason I was prescribed diazepam.

Slip op. at 6 (quoting plea inquiry). Using a prescription drug recreationally seems wholly distinguishable from using it for an ostensibly-legitimate but unprescribed purpose, but the Air Force Court appears to foreclose any possible distinction. Chief Judge Drew goes so far as to note that:

The stated rationale for our holding in Lancaster was that “[w]e have found no specific provision in any statute or punitive regulation prohibiting a person for whom a drug is prescribed from retaining unused amounts of the drug and later taking it for another ailment.”

Slip op. at 8 (quoting 36 M.J. at 1118). This rationale is rejected because the Manual for Courts-Martial defines wrongful use as “without legal justification or authorization,” slip op. at 8 (quoting MCM, pt. IV, ¶ 37.c.(5)), and the Air Force Court’s opinion seems to hold that only a specific, particularized medical order provides such justification or authorization for the use of prescription drugs.

Further evidence of the broad reach of this opinion comes from its discussion of United States v. Pariso in which the CCA explained that use of pills from an old prescription “to get high would still have been wrongful.” 65 M.J. 722, 724 (A.F. Ct. Crim. App. 2007) (discussed here). Chief Judge Drew’s opinion could have simply affirmed Pariso and applied its holding to the facts of this case, but the CCA doesn’t do that. Rather, the court seems to extend Pariso to apply to any use of an old prescription.

Assuming that’s what the CCA’s opinion really means, it’s only a small step from criminalizing any use of an old prescription to criminalizing the mere possession (perhaps even constructively) of an old prescription.

That would be a massive expansion of criminal liability under Article 112a.

6 Responses to “The Air Force CCA seems to prohibit any use of old prescription drugs”

  1. Vulture says:

    How could he know that his use of diazepam was illegal if he was high on heroin?   Even with the criminal liability he incurs with taking that illegal substance, like negligent homicide when driving drunk, how could a he have formed the sufficient intent necessary to plead guilty?  Especially the part about “I knew it was wrong.”
    This guy is lucky he is not dead mixing drugs like that.  He needs treatment more than a conviction.

  2. Cloudesley Shovell says:

    I continue to shake my head at these types of cases.  The government has an airtight, bulletproof case for heroin use, and they go and clutter up the charge sheet, the trial, and the inevitable appeal with this BS about using medication outside the lines of the prescription.  Really?  Are things that slow in the trial shop?  Is some bright young prosecutor that desperate for a notch in his belt?  Does or did anyone involved at any point in this case think for even one second that this diazepam use had any effect whatsoever on either the adjudged sentence or the sentence approved pursuant to the PTA?  Is all this spilled ink and pointless effort really worth it? 
    As for the AFCCA, overruling prior reasonable precedent for this utterly pointless case wasn’t wise.  Did the court really thoughtfully consider the consequences of this opinion on the law?  If this hyper-technical scrutiny of prescription drug use is now the basis, in theory anyway, of criminal prosecution and imprisonment, should not also mere possession be similarly harshly judged?  If a person is prescribed three weeks worth of diazepam for back pain, but is pain free after using only two weeks’ worth, is not the grateful patient now a felon for continuing to possess the remainder, forgotten in the corner of the medicine cabinet?  Shall the law, in all its glory, ferret through every soldier, sailor, marine, and airman’s pill bottles to combat this awful threat to good order and discipline?  Shall a new campaign for a drug free military scrutinize every military medical record for every prescription for a controlled substance and execute systematic searches for every wayward Tylenol with codeine?  Is this utopia just around the corner?  Is this opinion an example of the majesty of the law I hear so much about, or is it just a dumb misstep?  
    It doesn’t matter.  When is this ridiculous fact pattern going to arise again?  This silly little opinion will join countless of its forbears, gathering dust in the Military Justice Reporter, unknown even to Shepard’s.
    Finally, what about the guy’s wife.  Why did she dime him out?  I’ve known more than a few cases where one spouse, desperate to assist his or her partner, has naively turned to military authorities for “help”, only to see said partner hauled off to confinement, booted out, tainted for life as a convicted felon, and most importantly, not helped.  Then again I’ve seen cases where one spouse wanted to nail the other one to a wall and take a scalp for a trophy.  Wonder which case this was.
    Kind regards,CS

  3. rob klant says:

    To the extent, if any, that the court’s holding views a drug’s expiration date is intended to signifyi anything about its scope of the patient’s authority to use, I think it’s mistaken.
    In military treatment facilities as well as their civilian counterparts, expiration dates are largely arbitrary and intended only to serve internal and external administrative interests.
    See here for a recent article on the subject:
    If such use is deemed a problem, I think the Army’s approach is better: simply issue a regulation banning all prescription use more than 6 months after  

  4. Tami a/k/a Princess Leia says:

    I don’t have a problem with people using old prescription meds to treat the medical problem for which the meds were originally prescribed.  The Army’s approach is horrible.  Silly to prescribe drugs, they aren’t all used within 6 months because they weren’t needed, then one day after 6 months when re-injury occurs, now all of a sudden the Soldier is in trouble simply for taking left-overs?  And if the Soldier was prescribed the same drug for multiple injuries, I have no problem with the Soldier using the old prescription for any one of those injuries that reoccur.
    On the other hand, seems that it’s wrong to use diazepam to “augment” a heroin high.  I have no problem with the idea that use of a prescribed drug to augment use of an illegal drug is illegal.

  5. Hi says:

    Bottom line is once you have the service courts pretending they have meaningful case law, it’s time for a CAAF opinion. Period.

  6. interesting times says:

    This is what happens when prosecutors run out of real crime to prosecute.  We prosecute military members for using “expired” prescription drugs, eating “strong & kind” bars, and having sex with each other while intoxicated.  I encourage all of you to take this trend as a sign that real crime is less prevalent than it used to be, and be thankful.