Hemp, CBD, THC8, THC9, and Marijuana

Written by: Minot Air Force Base Staff Judge Advocate

The possession, distribution, and/or ingestion of hemp products, cannabidiol (CBD), delta-8-tetrahydrocannabinol (THC8), delta-9-tetrahydrocannabinol (THC9), and marijuana are illegal in the military and are cause for discharge from the United States Air Force. Use of these substances is preventable and has real consequences. This article focuses on THC8 and THC9 and is intended to provide transparency and education concerning its consequences.

What is THC8?
THC8 is an isomer (two molecules with the same formula but different structure) of THC9. THC9 is the molecule that is the source of marijuana’s inebriating effect. THC8 exists naturally in the cannabis plant, but at very low levels. THC8, such as that available for purchase at local vape and smoke shops, is often produced through synthetic conversion of hemp-derived CBD. THC8 is a psychoactive cannabinoid that causes users to experience a level of euphoria like that of THC9; thus, is considered an intoxicating substance.

What is THC9?
THC9 is the cannabinoid molecule in marijuana. It is the main psychoactive ingredient that causes a user to experience a euphoric sensation. The use of THC9 stimulates the release of dopamine in the brain which causes effects on the user’s body. Like THC8, it is also considered an intoxicating substance.

Law and Regulation
Article 112a, Uniform Code of Military Justice (UCMJ), codified at 10 USC 912a, prohibits the wrongful use, possession, and distribution of marijuana and its derivatives. Under Article 112a, UCMJ, “Use” means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance. “Use” includes such acts as smoking, sniffing, eating, drinking, or injecting. “Possess” means to exercise control over something.


Similarly, DAFMAN 44-197, Military Drug Demand Reduction Program, dated 23 September 2022, paragraph 1.2.2.1, prohibits “the use of products containing, or products derived from hemp, including but not limited to delta-8-tetrahydrocannabinol (delta-8-THC) and cannabidiol (CBD)” and “Failure . . . to comply . . . is a violation of Article 92, UCMJ.” Ingestion of hemp products, CBD, THC8, THC9, and marijuana can be punished under both Article 112a, UCMJ, and Article 92, UCMJ. Article 92, UCMJ, prohibits violations of lawful general orders, failures to obey lawful orders, and derelictions of duty. Moreover, lack of knowledge of general orders is not a defense: “Knowledge of a general order or regulation need not be alleged or proved as knowledge is not an element of this offense and a lack of knowledge does not constitute a defense.”

Consequences
Commanders retain full discretion over administrative, nonjudicial, and judicial action under the UCMJ and Air Force regulations.


Under Article 15 of the UCMJ, codified at 10 USC 815, a commander may impose nonjudicial punishment on members of their command for violations of the UCMJ. Nonjudicial punishment provides commanders with an essential and prompt means of maintaining good order and discipline outside of the court-martial process. It is intended to promote positive behavior changes in service members without the stigma of a court-martial conviction. The punishment reflects the commander’s determination of an appropriate punishment after considering the circumstances of the offense and the member’s record. The maximum punishment for an Article 15 action depends on the rank of the member being punished and the rank of the officer imposing punishment. Typical punishments include, but are not limited to, reduction in rank, forfeiture of pay, extra duty, restriction to base, or a reprimand.


Under Article 112a, UCMJ, the maximum punishment for wrongful use and possession of marijuana and its derivatives is a dishonorable discharge, 2-5 years of confinement, reduction to E-1, and forfeiture of all pay and allowances. Under Article 92, UCMJ, the maximum punishment for violations of lawful general orders is a dishonorable discharge, 2 years of confinement, reduction to E-1, and forfeiture of all pay and allowances.


Finally, under DAFI 36-3211, Military Separations, dated 24 June 2022, paragraph 7.43, “Drug abuse is incompatible with military service and members who abuse drugs one or more times are subject to discharge for misconduct.” In accordance with paragraph 7.43.1, “Drug abuse for purposes of this regulation is the illegal, wrongful, or improper use, possession, sale, transfer, or introduction onto a military installation of any drug . . . and any intoxicating substance, other than alcohol or tobacco.” Thus, ingestion of hemp products, CBD, THC8, THC9, and marijuana is cause for discharge.

Conclusion
The bottom line is that possession, distribution, and/or ingestion of hemp products, CBD, THC8, THC9, and marijuana is illegal and carries serious consequences. While these products might not be illegal under state law, they remain illegal for military members. Thus, military members must exercise extreme caution with regard to the products they purchase and ingest. Just because a product can be purchased locally does not mean that product is legal for use by military members. In the past year, cases across team Minot involving drug abuse resulted in serious consequences: 40 resulted in discharge, 47 resulted in nonjudicial punishment, and 5 resulted in a court-martial conviction.

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