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In drawdown, more troops booted for Rx drug offenses

Apr. 10, 2013 - 09:19AM   |  
The services are seeing a rise in cases involving prescription drug abuse.
The services are seeing a rise in cases involving prescription drug abuse. (Sgt. Samantha Beuterbaugh / Army)
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Navy Lt. Aaron Jacob was a drug addict.

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Navy Lt. Aaron Jacob was a drug addict.

And as a nurse working in the anesthesiology division at Naval Hospital Lemoore, Calif., he had easy access to the strong narcotics that he distributed to patients.

Jacob was busted in early 2011 for stealing hospital drugs. And despite an otherwise impeccable Navy record and 23 years of service, his commanders threw the book at him.

Convening a full-blown court-martial — with the threat of a dishonorable discharge and years behind bars — was highly unusual, said Navy Capt. Chad Elsner, one of Jacob’s colleagues.

“I don’t think this case ever should have gotten this far. I’ve been a physician since 1989. I’ve seen people get addicted to all kinds of medication. And they usually just get an administrative discharge. The fact that this case is at a court-martial, I think, is an injustice,” Elsner testified in the court proceeding in January 2012, according to Navy records.

Jacob’s case highlights a shift in the way military commanders are handling prescription drug abuse cases. Many lawyers inside and outside the military say there has been a crackdown in recent years, with enforcement more common and punishments more severe.

“It used to be, maybe if a commander really liked a guy, he might say, ‘Well, OK, we’ll let this one go.’ But recently, they are just not going to tolerate it,” said Bruce White, a retired Marine Corps judge advocate general who is now a military defense attorney in San Diego.

Nearly a decade ago, as troops began coming home from Iraq and Afghanistan with severe physical and psychological wounds, the military medical system stepped up use of many drugs, especially painkillers and anti-anxiety sedatives.

Now, the military has increased screening and added new rules designed to punish, deter and reduce illegitimate drug use.

The Army took an additional step and imposed a forcewide rule that limits legitimate use of prescription drugs to six months after the date of the prescription.

Many military lawyers say commanders are ratcheting up enforcement of prescription drug rules as a way to help pare down force levels.

“Some commanders are using this to cull the herd,” said one Army lawyer who spoke on condition of anonymity. “If they can catch a few soldiers using their prescription meds after the six-month window, that’s an easy elimination,” and an easy way to move toward a drawdown target, he said.

Precisely how many troops are getting busted for wrongful use of prescription drugs is difficult to pinpoint. Military court data do not typically distinguish between charges for prescription drugs and for illicit drugs, such as marijuana.

Greg Rinckey, a former Army JAG who has a military defense practice in New York, said he has seen a spike in such cases in recent years — and the clients bear no resemblance to those of past traditional drug cases.

“They are not junkies. They have legitimate issues,” Rinckey said.

In some cases, troops are better off refusing a commander’s offer of nonjudicial punishment, which forces the command to decide whether the case is strong enough for, and worth the administrative costs of, a court-martial.

Testing hot on a urinalysis is not necessarily an open-and-shut case, Rinckey said. Conviction of wrongful drug use requires the user’s knowledge and intent, which can be difficult to prove in court.

“Sometimes the command looks at it and says, ‘We can’t prove this, let’s just drop it,’” Rinckey said. He cautioned that troops should consult an attorney before making that decision.

But rolling the dice on a court-martial may be a good option for some people, as court-martial panels can be sympathetic to prescription drug defendants.

In Jacob’s case, his commander took the most aggressive route and convened a general court-martial. Jacob was convicted in January 2012 on several counts of wrongful drug use and theft from the Navy hospital.

Yet his court-martial panel limited his sentence to a written reprimand.

The way commanders handle these cases likely would change dramatically if the military faced a new large-scale mission overseas, Rinckey said.

“If the [North] Koreans come across the [38th] parallel tomorrow, every one of these troops is going to be needed — and we’d be looking at a whole new dynamic,” he said.

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