Q. Can I be punished for using cocaine if I seek drug treatment?

A. The military wants its troops to overcome addictions to drugs or alcohol, and it knows they will not seek help when a substance abuse clinic serves as an extension of a prosecutor's office. So each branch of the armed forces has developed regulations that, under certain circumstances, grant immunity from criminal prosecution to service members who voluntarily refer themselves into substance abuse rehabilitation programs.

These regulations differ slightly among the branches, so it's important to review your particular branch's regulation or consult with a military law attorney before any self-referral. These regulations include SECNAVINST 5300.28E, Army Regulation 600-85, COMDTINST M6200.1B, and Air Force Instruction 44-121.

Under the Army's "limited use policy" in AR 600-85, the government generally cannot use confidential military client information in Uniform Code of Military Justice disciplinary proceedings or for a service characterization in administrative proceedings. But while substance abuse rehabilitation program counselors are prohibited from disclosing information such as a military client's record of identity, diagnosis, prognosis or treatment, counselors can reveal to authorities "knowledge of illegal acts, which may have an adverse impact on mission, national security, or the health and welfare of others."

It is crucial that self-referrals be voluntary because the government can use information from involuntary self-referrals to discipline a member. Under AFI 44-121, a disclosure is not voluntary if the member has been caught with drugs, is under investigation for drug abuse, was ordered to provide a urine sample, is facing administrative separation for drug abuse, or previously entered a drug abuse treatment program.

It's also important for service members to disclose their drug problems to the proper parties, and only if they suffer from drug addiction. In U.S. v. Jeremy B. Klimek (2006), for example, the defendant, a Navy mess management specialist, told his division officer that he used marijuana "to relax and cope with his personal problems and the difficulties of shipboard life," according to the U.S. Navy-Marine Corps Court of Criminal Appeals. Klimek was subsequently referred to a psychologist, who diagnosed him with "cannabis abuse." The court found Klimek was not protected by the Navy's self-referral policy because he did not make a disclosure to a "qualified self-referral representative" and was "determined to be a drug abuser, not drug dependent."

Service members suffering from drug dependency, or who have been charged with wrongfully using a controlled substance, should immediately consult with a military law attorney. Depending on the circumstances, an attorney could help the member make a valid self-referral.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and the founding partner of Tully Rinckey PLLC. Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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