AS OF SEPTEMBER 2015, THE MARINE Corps had a 22% Conviction Rate in Positive Urinalysis Drug Courts-Martial

Last week we did a Marine Corps administrative separation board for a staff sergeant who tested positive for cocaine in an amount of 121ng/ml. That’s a pretty low amount. We were successful. The board found no basis for separation. During the course of the notification process, a memorandum was sent to us (probably inadvertently) indicating Marine Corps success rates in drug cases between 2012 to 2015. Ideally, we would want more recent and more complete data. But, anecdotally I would say that these numbers are probably consistent from year to year. Looking at our recent results, it’s clear that we have achieved great results comparable to those in the memo. Another potential take away is that statistically, there probably is not much incentive in waiving your right to a board and taking an OTH. You’ll probably fare better with the board – with the caveat that you need to consult with counsel before making that kind of decision. The memorandum stated in part: “(1) From January to June 2015, Parris Island’s Administrative Law section processed eight administrative separation boards (AdSeps) in which drug abuse was the sole basis for separation. In all eight boards, the basis was substantiated and the Marine separated resulting in a 100% separation rate at AdSep. (2) From January to June 2015, Camp Lejeune’s Administrative Law section has processed 26 boards for drug abuse. Of those, 20 boards resulted in separation. Of those 20, two were unconditional waivers…The remaining 18 boards resulted in separation with the following recommended characterization of service: 10 other than honorable, 7 general…, 1 honorable. This is a 77% separation rate at AdSep. (3) As of 12 August 2014, 1st Marine Division convened 40 boards in the previous year with drug abuse as the basis for separation. Of those boards, 14 out of 40 (35%) found no basis or chose to retain the Marine. In 10 out of 40 (25%) boards, the Marine was separated with an honorable or general…characterization of service, and in 16 boards the Marine was separated with another than the honorable characterization of service. AdSep resulted in an overall separation rate of 65%. (4) Marine Corps-wide, from 2012 to 2013, there were 50 courts-martial where Article 112 (a) (drug offenses ) was the sole or primary charge. Only 32 of these 50 courts-martial were contested… Of these 32 contested trials, the Government only obtained a conviction in 14. Thus, court-martial resulted in a 44% conviction rate when the accused Marine pleads not-guilty. Some of these cases almost certainly encompassed more serious drug offenses such as large quantities or possession/distribution in which the accused was caught in possession of the contraband or confessed to the possession/use/distribution; thus resulting in higher conviction rates than might be expected where the primary evidence is a positive urinalysis. (5) In the first two quarters of the fiscal year 2015, the Marine Corps took 11 cases to court-martial where the only charge was a wrongful use of a controlled substance. Of these 11 cases, seven resulted in a finding of not guilty. Of the four guilty verdicts, two were guilty pleas. Thus, out of nine contested courts-martial, the Government only obtained a conviction twice, a 22% conviction rate at courts-martial in the fiscal year 2015.”