2008 edition - Fort Sam Houston - U.S. Army

37. Article 112a—Wrongful use, possession,
etc., of controlled substances
a. Text of statute.
( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o
wrongfully uses, possesses, manufactures, distributes,
imports into the customs territory of the
United States, exports from the United States, or
introduces into an installation, vessel, vehicle, or
a i r c r a f t u s e d b y o r u n d e r t h e c o n t r o l o f t h e
armed forces a substance described in subsection
( b ) s h a l l b e p u n i s h e d a s a c o u r t - m a r t i a l m a y
direct.
(b) The substances referred to in subsection (a)
are the following:
( 1 ) o p i u m , h e r o i n , c o c a i n e , a m p h e t a m i n e ,
l y s e r g i c a c i d d i e t h y l a m i d e , m e t h a m p h e t a m i n e ,
p h e n c y c l i d i n e , b a r b i t u r i c a c i d , a n d m a r i j u a n a ,
a n d a n y c o m p o u n d o r d e r i v a t i v e o f a n y s u c h
substance.
(2) Any substance not specified in clause (1)
that is listed on a schedule of controlled substances
prescribed by the President for the purposes
of this article.
( 3 ) A n y o t h e r s u b s t a n c e n o t s p e c i f i e d i n
clause (1) or contained on a list prescribed by the
President under clause (2) that is listed in Schedules
I through V of section 202 of the Controlled
Substances Act (21 U.S.C. 812).
b. Elements.
(1) Wrongful possession of controlled substance.
( a ) T h a t t h e a c c u s e d p o s s e s s e d a c e r t a i n
amount of a controlled substance; and
( b ) T h a t t h e p o s s e s s i o n b y t h e a c c u s e d w a s
wrongful.
(2) Wrongful use of controlled substance.
( a ) T h a t t h e a c c u s e d u s e d a c o n t r o l l e d s u b -
stance; and
(b) That the use by the accused was wrongful.
(3) Wrongful distribution of controlled substance.
( a ) T h a t t h e a c c u s e d d i s t r i b u t e d a c e r t a i n
amount of a controlled substance; and
(b) That the distribution by the accused was
wrongful.
( 4 ) W r o n g f u l i n t r o d u c t i o n o f a c o n t r o l l e d s u b -
stance.
(a) That the accused introduced onto a vessel,
aircraft, vehicle, or installation used by the armed
37.c.(2)
forces or under the control of the armed forces a
certain amount of a controlled substance; and
(b) That the introduction was wrongful.
(5) Wrongful manufacture of a controlled substance.
( a ) T h a t t h e a c c u s e d m a n u f a c t u r e d a c e r t a i n
amount of a controlled substance; and
(b) That the manufacture was wrongful.
(6) Wrongful possession, manufacture, or introduction
of a controlled substance with intent to distribute.
( a ) T h a t t h e a c c u s e d ( p o s s e s s e d ) ( m a n u f a c -
tured) (introduced) a certain amount of a controlled
substance;
(b) That the (possession) (manufacture) (introduction)
was wrongful; and
(c) That the (possession) (manufacture) (introduction)
was with the intent to distribute.
(7) Wrongful importation or exportation of a controlled
substance.
(a) That the accused (imported into the customs
territory of) (exported from) the United States
a certain amount of a controlled substance; and
( b ) T h a t t h e ( i m p o r t a t i o n ) ( e x p o r t a t i o n ) w a s
wrongful. [Note: When any of the aggravating circumstances
listed in subparagraph e is alleged, it
must be listed as an element.]
c. Explanation.
(1) Controlled substance. “Controlled substance”
means amphetamine, cocaine, heroin, lysergic acid
diethylamide, marijuana, methamphetamine, opium,
phencyclidine, and barbituric acid, including phenob
a r b i t a l a n d s e c o b a r b i t a l . “ C o n t r o l l e d s u b s t a n c e ”
a l s o m e a n s a n y s u b s t a n c e w h i c h i s i n c l u d e d i n
Schedules I through V established by the Controlled
Substances Act of 1970 (21 U.S.C. 812).
(2) Possess. “Possess” means to exercise control
o f s o m e t h i n g . P o s s e s s i o n m a y b e d i r e c t p h y s i c a l
custody like holding an item is one’s hand, or it may
be constructive, as in the case of a person who hides
an item in a locker or car to which that person may
return to retrieve it. Possession must be knowing and
conscious. Possession inherently includes the power
or authority to preclude control by others. It is possible,
however, for more than one person to possess
a n i t e m s i m u l t a n e o u s l y , a s w h e n s e v e r a l p e o p l e
share control of an item. An accused may not be
convicted of possession of a controlled substance if
IV-55