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What new marijuana laws mean for troops

Dec. 22, 2012 - 09:36AM   |   Last Updated: Dec. 22, 2012 - 09:36AM  |  
(Sean Gallup / Getty Images)
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Service members hoping to join the party in Colorado and Washington state should think twice about sparking up with the jubilant supporters of marijuana legalization.

Already among the 18 states that have legalized medical marijuana, both states became the first to greenlight ganja for recreational use in recent ballot measures that became law in December.

Local officials are still hashing out the details, but generally speaking, it breaks down like this: For everyone 21 and older, it's legal to have it, it's legal to smoke it, it's legal to grow it in Colorado, and — if you're the proprietor of a soon-to-be-set-up, state-run dope shop — it will even be legal to sell it.

Legal for everyone, of course, except those in the military.

For the 105,000 active-duty troops stationed in the two states — plus another 33,000 reservists — nothing has changed.

Obvious? Maybe, but officials say they've been flooded with questions.

Among most common:

• How do the new laws apply to dependents or service members off base?

• Can we smoke marijuana in on-base quarters?

• If a dependent or guest uses marijuana off base, and then comes on base, is that OK?

Some of the answers are simple, said Army Lt. Col. Ted Solonar, the top prosecutor and provost marshal for Joint Base Lewis-McChord, Wash. Others are a little more complicated.

"Army and DoD policy hasn't changed at all regarding service members and civilian employees using or possessing marijuana in DoD facilities. That's status quo," Solonar said. The bottom line: Bases are federal property, and all federal prohibitions remain in effect.

Article 112a of the Uniform Code of Military Justice remains unchanged, as well, Solonar says. For those in uniform, that means it's still illegal to use, possess, grow, manufacture or distribute marijuana. That's on base, off base or in any "vessel, vehicle, or aircraft used by or under the control of the armed forces."

And, yeah, that includes base quarters, including privatized family housing, officials say.

"I don't know that we've ever felt so compelled to get the word out and get the word out early," said Joint Base Lewis-McChord spokesman Joseph Piek. Base officials began planning that effort even as the votes were tallied in the November elections. "We all looked at each other and said, ‘I know what young soldiers are thinking,' " Piek said.

As so began a social media blitz on the base Facebook and Twitter feeds.

"After midnight tonight, it will •still• be illegal to bring marijuana onto JBLM," began one Facebook post the day before recreational pot become legal, adding, "and it will still be illegal for service members to use marijuana, regardless of whether they are on- or off-base."

"What we're really hoping is that we don't have a soldier who stands in front of his or her commander and uses the Washington state law as an excuse for having used marijuana," Piek said.

Spouses can, but …

While the federal rules apply to everyone on base, civilian spouses and any other dependents 21 or older can do as they please once they're outside the gate.

"Technically they're a civilian, and it's legal under the state law," Solonar said. "The U.S. government has no jurisdiction."

Still, leaders are wrestling with how this all could play out.

"I don't know that the command would try to influence the behavior of a military spouse who is a true civilian off of the installation, but certainly there is a concern for soldiers who are potentially around it. Whether they are using it or not, there are some good order and discipline concerns," Solonar said. "So [leaders] are really trying to think through ‘How do you address that?' "

Spouses who decide to smoke pot "would be putting their service member in a bad situation," said Tom Danaher, spokesman for Naval Base Kitsap, Wash. "Maybe it's just guilt by association, but what the dependent does is the responsibility of the service member," said Danaher, a retired Navy captain. "We try to work as a family. It isn't, like, them and us. Everybody should be good. It's best for you."

Other commands are treating it as more cut and dried.

"It's not my business what spouses do off base," said Air Force Lt. Col. Ira Perkins, the staff judge advocate and top legal adviser for the 21st Space Wing at Peterson Air Force Base, Colo. "In Colorado, they can go home and smoke marijuana now."

It's no different than for military families stationed overseas, he said.

"You can go smoke marijuana legally in Amsterdam. The fact that dependents went and did that just wasn't our concern," said Perkins, who served as a legal officer in Germany. "Of course, if I have a dependent who smokes marijuana and then presents to my gate under the influence, I have a big concern there."

Policing problems

What base officials can do with a doped-up spouse — or any other civilian — gets complicated, as well.

Before the laws changed, base officials usually handed civilian drug offenders off to local authorities for any prosecution.

"Now, without a law on the books, the only thing we can do is escort them to the gate and tell them we'll get back to them on whether or not they'll be barred from the installation," Perkins said. "I'm not saying we have a blanket policy where we'll bar every single person, because my boss takes everything on a case-by-case basis.

"So, if I had a young wife who happened to bring it on, am I going to bar her if her children are living on my base and it's going to affect that airman? Maybe not, especially if it's first-time offense. There are no lines drawn in the sand here, but I can tell you, it's going to be a cause for barment for civilians."

It's too early to know whether easier access to pot will translate into bigger policing problems. State officials say they handle anyone driving under the influence of pot just like any other DUI.

"The law enforcement community as a whole is concerned about the potential for an increase of impaired driving as a result of this," Solonar said, but he doubts it will be much of a problem on bases because "our security tends to weed a lot of that out — no pun intended."

Where enforcement could get complicated, however, is in areas where the military has dual jurisdiction with state and local authorities.

"One of the big areas we have overlap is in our training areas," Solonar said.

"Once [Washington state] figures out how it's going to handle the possession piece and the distribution piece of marijuana, then some decisions need to be made by the Department of Defense as to how we're going to react to any kind of traffic stops or contacts we have with true civilians in those concurrent jurisdictional areas. That's something that is being discussed, but we're just waiting to see how the state plays it out."

Foggy for federal employees

It's unclear how the state changes will affect civilian employees who'd like to smoke pot off base.

In 1986, President Reagan signed an executive order declaring the federal government a "drug-free workplace," but only required drug testing for civilians in "sensitive positions."

On most bases, that includes civilian health workers and first responders, as well as many senior civilian leaders. But that leaves many, if not most, base civilian employees in a gray area.

"You know, I'm not sure," responded one civilian public affairs officer when asked if he could light up off base. Further fogging things up, Reagan's executive order excludes anyone with a "valid prescription or other uses authorized by law."

Perkins added that the order does not cover civilian contractors who work on base.

Moving target

One senior military attorney characterized the new pot laws as "a moving target. What the federal government does, what the Department of Justice does, what the administration does, it's all still playing out right now."

Also unclear is how the current administration in Washington will handle things, but President Obama gave an early indication during a recent interview with ABC News.

When asked about the states' detour around federal law, Obama hinted that it wouldn't be his administration's priority.

"We've got bigger fish to fry," the commander in chief told ABC News' Barbara Walters in his first interview alongside first lady Michelle Obama since his re-election. "It would not make sense for us to see a top priority as going after recreational users in states that have determined that it's legal."

Still, Obama said there are sticky issues to be worked through.

"This is a tough problem, because Congress has not yet changed the law," Obama said. "I head up the executive branch; we're supposed to be carrying out laws. And so what we're going to need to have is a conversation about, ‘How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal?'"

Obama has directed the Justice Department to examine those conflicts.

At least one former commander in chief thinks it's high time pot was decriminalized.

"I'm in favor of it," Jimmy Carter told a gathering Dec. 11. "I think it's OK.

"I don't think it's going to happen in Georgia yet," he said, drawing a laugh during the panel discussion broadcast by CNN. "But I think we can watch and see what happens … and let the American government and let the American people see, does it cause a serious problem or not.

"That's the way our country has developed over the last 200 years — it's about a few states being kind of experiment states," Carter said.

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