Executive Order 12383—Amendments to the Manual for Courts- Martial, United States, 1969 (Revised Edition)

By the authority vested in me as President by the Constitution of the United States of America and by Chapter 47 of Title 10 of the United States Code (the Uniform Code of Military Justice), in order to prescribe amendments to the Manual for Courts-Martial, United States, 1969 (Revised edition), prescribed by Executive Order No. 11476, as amended by Executive Order No. 11835, Executive Order No. 12018, Executive Order No. 12198, Executive Order No. 12233, Executive Order No. 12306, Executive Order No. 12315, and Executive Order No. 12340, it is hereby ordered as follows: Section 1. Paragraph 127c, Section A (Table of Maximum Punishments) of the said Manual for Courts-Martial is amended by deleting the following language: "Drugs, habit forming, wrongful possession, sale, transfer, use or introduction into a military unit, base, station, post, ship, or aircraft" and the maximum punishments prescribed therefor, and "Drugs, marijuana, wrongful possession, sale, transfer, use or introduction into a military unit, base, station, post, ship, or aircraft" and the maximum punishments prescribed therefor, and by inserting in their place the following entries and maximum punishments: "Drugs, wrongful use, possession, manufacture, or introduction of amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 grams or use of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances.". Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor not to exceed 5 years. "Drugs, wrongful possession of less than 30 grams or use of marijuana, and wrongful use, possession, manufacture, or introduction of phenobarbital, and Schedule IV and V controlled substances.". Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor not to exceed 2 years. "Drugs, wrongful distribution of, or, with intent to distribute, wrongful possession, manufacture, or introduction of amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances.". Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor not to exceed 15 years. "Drugs, wrongful distribution of, or, with intent to distribute, wrongful possession, manufacture, or introduction of phenobarbital and Schedule IV and V controlled substances.". Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor not to exceed 10 years. Sec. 2. Paragraph 127c, Section B of the said Manual for Courts-Martial is amended by adding the following new paragraph following the last paragraph therein: "When any offense described in paragraph 213g is committed while the accused is: on duty as a sentinel or lookout; on board a vessel or aircraft used by or under the control of the armed forces; in or at a missile launch facility used by or under the control of the armed forces; in a hostile fire pay zone; or in time of war, the maximum period of confinement at hard labor and forfeiture of pay and allowances authorized for such offense shall be increased by 5 years.". Sec. 3. Paragraph 213 of the said Manual for Courts-Martial is amended by deleting the last paragraph of subparagraph 213b and by adding the following new subparagraph after the end of subparagraph f: "g. Offenses involving controlled substances. "Discussion. Possession, use, introduction into a military unit, base, station, post, ship, or aircraft, manufacture, distribution, and possession, manufacture, or introduction with intent to distribute, of a controlled substance are offenses under Article 134. "(1) Controlled substance. "Controlled substance" means amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, phenobarbital, and secobarbital. "Controlled substance" also means any substance which is included in Schedules I through V established by the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended (21 U.S.C. 801 et seq.). "(2) Possess. "Possess" means to exercise control of something. Possession may be direct physical custody like holding an item in 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 an item simultaneously, as when several people share control of an item. An accused may not be convicted of possession of a controlled substance if the accused did not know that the substance was present under the accused's control. Awareness of the presence of a controlled substance may be inferred from circumstantial evidence. "(3) Distribute. "Distribute" means to deliver to the possession of another. "Deliver" means the actual, constructive, or attempted transfer of an item, whether or not there exists an agency relationship. "(4) Manufacture. "Manufacture" means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of such substance or labeling or relabeling of its container. The term "production", as used above, includes the planting, cultivating, growing, or harvesting of a drug or other substance. "(5) Wrongfulness. To be punishable under Article 134, possession, use, distribution, introduction, or manufacture of a controlled substance must be wrongful. Possession, use, distribution, introduction, or manufacture of a controlled substance is wrongful if it is without legal justification or authorization. Possession, use, distribution, introduction, or manufacture of a controlled substance is not wrongful if such act or acts are: (A) done pursuant to legitimate law enforcement activities (for example, an informant who receives drugs as part of an undercover operation is not in wrongful possession); (B) done by authorized personnel in the performance of medical duties; or (c) without knowledge of the contraband nature of the substance (for example, a person who possesses cocaine, but actually believes it to be sugar, is not guilty of wrongful possession of cocaine). But, possession, use, distribution, introduction, or manufacture of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. The burden of going forward with evidence with respect to any such exception in any court-martial or other proceeding under the code shall be upon the person claiming its benefit. If such an issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that the use, possession, distribution, manufacture, or introduction was wrongful. "(6) Intent to distribute. Intent to distribute may be inferred from circumstantial evidence. Examples of evidence which may tend to support an inference of intent to distribute are: possession of a quantity of substance in excess of that which one would be likely to have for personal use; market value of the substance; the manner in which the substance is packaged; and that the accused is not a user of the substance. On the other hand, evidence that the accused is addicted to or is a heavy user of the substance may tend to negate an inference of intent to distribute. "(7) Certain amount. When a specific amount of a controlled substance is believed to have been possessed, distributed, introduced, or manufactured by an accused, the specific amount should ordinarily be alleged in the specification. It is not necessary to allege a specific amount, however, and a specification is sufficient if it alleges that an accused possessed, distributed, introduced, or manufactured "some, .... traces of," or "an unknown quantity of" a controlled substance. "Proof. "(1) Wrongful possession of controlled substance. (a) That the accused possessed a certain amount of a controlled substance; (b) that the possession by the accused was wrongful; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. "(2) Wrongful use of controlled substance. (a) That the accused used a controlled substance; (b) that the use by the accused was wrongful; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. "(3) Wrongful distribution of controlled substance. (a) That the accused distributed a certain amount of a controlled substance; (b) that the distribution by the accused was wrongful; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. "(4) Wrongful introduction of controlled substance. (a) That the accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed forces or under the control of the armed forces a certain amount of a controlled substance; (b) that the introduction was wrongful; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. "(5) Wrongful manufacture of controlled substance. (a) That the accused manufactured a certain amount of a controlled substance; (b) that the manufacture was wrongful; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. "(6) Wrongful possession, manufacture, or introduction of controlled substance with intent to distribute. (a) That the accused possessed, manufactured, or introduced a certain amount of a controlled substance; (b) that the possession, manufacture, or introduction was wrongful; (c) that the possession, manufacture, or introduction was with the intent to distribute; and (d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.". Sec. 4. Appendix 6c is amended by deleting sample specifications 144, 145, and 146 and the marginal notes with them and inserting in place thereof the following: "144. In that — (personal jurisdiction data) did, (at/on board—location) (subject matter jurisdiction data, if required) on or about — 19—, wrongfully (possess) (distribute) (manufacture) — (grams) (ounces) (pounds) (—) of (—) (a Schedule — controlled substance), (with the intent to distribute the said controlled substance) [while on duty as a sentinel or lookout] [while (on-board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit:—-] [while in a hostile fire pay zone] [during time of war].". Marginal