The UCMJ - Military Law Rights when notified of positive urinalysis / drug test.

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What are your rights under military law when you are notified of a positive urinalysis?

Check out this short video on your rights.

Right to remain silent under Article 31(b).
Right to consult with an attorney.

Servicemembers have rights under military law when notified of a positive urinalysis. They should be aware of the rights and options they have prior to making a decision and prior to speaking with law enforcement or their command.

There are several approaches the command and law enforcement may take once the drug lab notifies them the servicemember tested positive for drugs. If it is a very common drug such as THC, the command typically notifies the servicemember and presents them with a deal, that is favorable to the command. The deal typically consists of the servicemember agreeing to plead guilty at an Article 15 (Non-Judicial Punishment - NJP), and waiving their administrative separation board, resulting in an Other Than Honorable (OTH) characterization of service. This is an easy course of action for the command because it takes little to no time and resources for them. However, its not the best option, many times, because it does not give the service member the opportunity to challenge the results and potentially stay in the service.

Another route that is taken when the drug is less common, or of interest to law enforcement, is that the servicemember will be interrogated, with the goal of receiving information about the source of the drugs. Before speaking to law enforcement or the command, the service member should speak with an attorney. If the servicemember is brought in for interrogation, he/she can invoke their right to remain silent and request to speak to an attorney.

Once a statement is made, it makes the case more challenging, especially if the servicemember admits to drug use. The other risk is being charged with false official statement (Article 107). If a servicemember's statement deviates or is inconsistent, he/she can be charged with false official statement.


Article 31(b), of the UCMJ, states:

"No person subject to this chapter may interrogate, or request any statement from,

an accused or a person suspected of an offense

without first informing him of the nature of the accusation and

advising him that he does not have to make any statement

regarding the offense of which he is accused or suspected and

that any statement made by him may be used as evidence against him in a trial by court-martial."

Although article 31(b), of the UCMJ, does not specifically state the service member be advised he/she can consult with an attorney prior to questioning. This is a right the service member has and is typically conveyed to the service member.

When a service member first mentions he/she is invoking the right to remain silent per Article 31(b) of the UCMJ, law enforcement may ask the interviewee to clarify or if he/she is sure. They may also leave the room and come back in an hour or so in order to build anxiety in the mind of the interviewee. Make no mistake, this is to encourage the interviewee to continue speaking despite invoking the right to remind silent.

For a military law legal consultation call (855) UCMJ - LAW

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Military Defense Litigator, LLC
Steven J. Goralski, Esq.

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