In a published decision in United States v. Mull, __ M.J. __, 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.